If an employee leaves our company and joins another company without a relieving letter, the other company also lets him join without a relieving letter. What recourse do we have against the employee? In HR records/system, can we tag him as absconding or terminated?
What recourse do we have against the company where he joined, and does this constitute double employment since we have not relieved him? Can we serve them a notice? Please advise.
From India, Mumbai
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2What recourse do we have against the company where he joined, and does this constitute double employment since we have not relieved him? Can we serve them a notice? Please advise.
From India, Mumbai
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Dear Colleague,
Such an act as stated in your write-up amounts to "Abandonment of Service" or "Absconded from service" from your organization's perspective. You may send notice as per your company standing order or service rules mentioning the same. You may also mention if any company assets are in the custody of the employee which need to be returned. You may call for an explanation.
Send one or two reminders and then conclude the service as per disciplinary procedures or invoke the termination clause of the appointment contract. Then proceed for F&F and send a relieving letter stating the reasons that the employee absconded and did not respond to the notices, etc.
Until an employee is relieved from one employment but takes up another employment, it will amount to double employment from the perspective of that employer where he joined.
Due to competitions, companies dilute the process of onboarding talents, and they do not insist on the relieving letter, but later they burn their fingers for the reasons of onboarding wrong talents. This is not a correct process and should be discouraged.
However, you may send a notice and then after understanding the real facts and other side real reasons and giving an opportunity to the employee, you may conclude the services plus:
- You may insist on a recovery notice pay as per appointment terms.
- Hold issuing experience certificate.
- Mention the background of facts in the relieving letter.
- Review and give feedback that the employee absconded in the BVG Process, which normally happens in subsequent employments and will get checked with you also.
- Take steps to recover company assets if any in the custody of such an employee.
- Blacklist such an employee for re-hiring.
- In such matters, legal cases are not recommended as it is a time-consuming futile exercise.
From India, Chennai
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Such an act as stated in your write-up amounts to "Abandonment of Service" or "Absconded from service" from your organization's perspective. You may send notice as per your company standing order or service rules mentioning the same. You may also mention if any company assets are in the custody of the employee which need to be returned. You may call for an explanation.
Send one or two reminders and then conclude the service as per disciplinary procedures or invoke the termination clause of the appointment contract. Then proceed for F&F and send a relieving letter stating the reasons that the employee absconded and did not respond to the notices, etc.
Until an employee is relieved from one employment but takes up another employment, it will amount to double employment from the perspective of that employer where he joined.
Due to competitions, companies dilute the process of onboarding talents, and they do not insist on the relieving letter, but later they burn their fingers for the reasons of onboarding wrong talents. This is not a correct process and should be discouraged.
However, you may send a notice and then after understanding the real facts and other side real reasons and giving an opportunity to the employee, you may conclude the services plus:
- You may insist on a recovery notice pay as per appointment terms.
- Hold issuing experience certificate.
- Mention the background of facts in the relieving letter.
- Review and give feedback that the employee absconded in the BVG Process, which normally happens in subsequent employments and will get checked with you also.
- Take steps to recover company assets if any in the custody of such an employee.
- Blacklist such an employee for re-hiring.
- In such matters, legal cases are not recommended as it is a time-consuming futile exercise.
From India, Chennai
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What is the use of a relieving letter if the other company is not concerned about a relieving order? And what is the gain from holding the employee's relieving letter? If an employee is not interested in continuing with you, what is the sense in holding onto it? Is there any labor law that mandates an employee to obtain a relieving order from a company and present it to the new company? NO.
Regarding an employee working in a managerial capacity, you have more flexibility, but for an employee protected under the Industrial Disputes Act, there are limitations. The Act doesn't specify that an employee must provide notice or serve a notice period, although an employer is legally obligated to give notice or pay notice pay when terminating an employee.
An employee can update the exit date in EPF personally by logging into their member portal. This makes it less serious if the employer declares the employee as absconding. Even if labeled as such, as long as the employee is employable and the employer is willing to rehire, the employee will find new opportunities. If a legal notice is sent, the employee can respond by stating their resignation and reasons for leaving due to unethical practices or harassment. Therefore, careful consideration before taking action is crucial.
From India, Kannur
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Regarding an employee working in a managerial capacity, you have more flexibility, but for an employee protected under the Industrial Disputes Act, there are limitations. The Act doesn't specify that an employee must provide notice or serve a notice period, although an employer is legally obligated to give notice or pay notice pay when terminating an employee.
An employee can update the exit date in EPF personally by logging into their member portal. This makes it less serious if the employer declares the employee as absconding. Even if labeled as such, as long as the employee is employable and the employer is willing to rehire, the employee will find new opportunities. If a legal notice is sent, the employee can respond by stating their resignation and reasons for leaving due to unethical practices or harassment. Therefore, careful consideration before taking action is crucial.
From India, Kannur
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The observations of Mr. Madhu juxtaposing the legal consequences of the breach of the contract of employment by the employee and the practicality of taking disciplinary action against such an unwilling employee are worthy of deep consideration.
Queries relating to the refusal by employers to accept the buy-out offer of resigning employees are very frequent in this forum. Though the buy-out option regularly finds a place in the exit clause of the contract of employment, it is always qualified with the employer's sole discretion for its acceptance, whereas no such restriction exists when the employer terminates the employee with notice pay in lieu of prior notice. To me, such a discretionary prerogative to the employer, perhaps on the ground of work exigencies, renders the exit clause totally one-sided. At times there may be situational exigencies compelling the employee to leave the organization immediately by exercising his buy-out option. If credence to situational urgency is the deciding factor, I would insist that it should be given in equal measure to both the employer and the employee because it is indisputable that no employee would like to leave a good organization, nor would an employer like to lose an ideal employee.
Therefore, instead of the ruthless application of his discretionary power in the acceptance of the buy-out offer of an exiting employee, the employer should try to ponder over the genuine reasons for the sudden exit. If they are valid to the extent that the possible retention measures are beyond his capacity, of course, the employer should make the separation formal and peaceful by accepting the buy-out offer of the employee.
Similarly, when switching jobs, the exiting employee should also be very conscious of his contractual obligation to serve the full notice period and be equally cautious about the current employer's mood as well as genuine employment requirements to accept the buy-out option without any hassles and then accept the offer of the prospective employer.
The ground reality, in my opinion, in the matter of resignation, is that if both parties to the contract of employment realize that free will is the basis of paid employment and the unilateral termination of the employment contract is subject to the exit clause, which is fair in all respects, there could be no ruckus in the matter of separation during resignation and afterwards as well.
From India, Salem
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Queries relating to the refusal by employers to accept the buy-out offer of resigning employees are very frequent in this forum. Though the buy-out option regularly finds a place in the exit clause of the contract of employment, it is always qualified with the employer's sole discretion for its acceptance, whereas no such restriction exists when the employer terminates the employee with notice pay in lieu of prior notice. To me, such a discretionary prerogative to the employer, perhaps on the ground of work exigencies, renders the exit clause totally one-sided. At times there may be situational exigencies compelling the employee to leave the organization immediately by exercising his buy-out option. If credence to situational urgency is the deciding factor, I would insist that it should be given in equal measure to both the employer and the employee because it is indisputable that no employee would like to leave a good organization, nor would an employer like to lose an ideal employee.
Therefore, instead of the ruthless application of his discretionary power in the acceptance of the buy-out offer of an exiting employee, the employer should try to ponder over the genuine reasons for the sudden exit. If they are valid to the extent that the possible retention measures are beyond his capacity, of course, the employer should make the separation formal and peaceful by accepting the buy-out offer of the employee.
Similarly, when switching jobs, the exiting employee should also be very conscious of his contractual obligation to serve the full notice period and be equally cautious about the current employer's mood as well as genuine employment requirements to accept the buy-out option without any hassles and then accept the offer of the prospective employer.
The ground reality, in my opinion, in the matter of resignation, is that if both parties to the contract of employment realize that free will is the basis of paid employment and the unilateral termination of the employment contract is subject to the exit clause, which is fair in all respects, there could be no ruckus in the matter of separation during resignation and afterwards as well.
From India, Salem
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The query begs the question: why is the employer reluctant to relieve the employee even after the completion of the notice period? Unless there are compelling reasons, any hasty action on the part of the employer is unreasonable and injudicious. Certainly, such an approach does not measure up as good HR practice.
From India, Kochi
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From India, Kochi
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The second part of the question intrigues me. What makes you think you have any recourse against the new employer?
And where did you find that dual employment is illegal in law? If you are thinking in terms of the reference to it in the factory act, you need to read it properly and understand what it really means.
My suggestion is that you need to follow the procedure (notice to be sent, etc.) and close the file marking him as absconding, note how much he has to pay back to the company, notify him of the same, and close the file. If you keep it open, he actually has the right to claim reinstatement if he wants to come back.
From India, Mumbai
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And where did you find that dual employment is illegal in law? If you are thinking in terms of the reference to it in the factory act, you need to read it properly and understand what it really means.
My suggestion is that you need to follow the procedure (notice to be sent, etc.) and close the file marking him as absconding, note how much he has to pay back to the company, notify him of the same, and close the file. If you keep it open, he actually has the right to claim reinstatement if he wants to come back.
From India, Mumbai
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