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? Pls, advise.
From India, Mumbai
2What 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? Pls, advise.
From India, Mumbai
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 employee which needs to be returned. You may call for explanation.
Send one or 2 reminders and then conclude the service as per disciplinary procedures or invoking the termination clause of the appointment contract. Then proceed for F&F and send relieving letter stating the reasons that the employee was absconded and not responded for the notices etc.
Until an employee is relieved form one employment, but takes up another employment will amount to double employment from the perspective of that employer where he joined.
Due to competitions, companies dilute the process of on-boarding of talents and they do not insist on the Relieving letter but later they burn their figures for the reasons of on-boarding wrong talents. This is not a correct process which is to be discouraged.
Any how, you may send notice and then after understanding the real facts and other side real reasons and giving opportunity to the employee you may conclude the services plus :
- You may insist recover notice pay as per appointment terms
- Hold issuing experience certificate
- mention the background of facts in he relieving letter
-review and give feedback that the employee absconded in the BVG Process which normally happens in the subsequent employments and will get checked with you also
- Take steps to recover company assets if any in the custody of such employee
- Black list such employee for Re-Hiring
- In such matters legal cases are not recommended as it is a time consuming futile exercise
From India, Chennai
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 employee which needs to be returned. You may call for explanation.
Send one or 2 reminders and then conclude the service as per disciplinary procedures or invoking the termination clause of the appointment contract. Then proceed for F&F and send relieving letter stating the reasons that the employee was absconded and not responded for the notices etc.
Until an employee is relieved form one employment, but takes up another employment will amount to double employment from the perspective of that employer where he joined.
Due to competitions, companies dilute the process of on-boarding of talents and they do not insist on the Relieving letter but later they burn their figures for the reasons of on-boarding wrong talents. This is not a correct process which is to be discouraged.
Any how, you may send notice and then after understanding the real facts and other side real reasons and giving opportunity to the employee you may conclude the services plus :
- You may insist recover notice pay as per appointment terms
- Hold issuing experience certificate
- mention the background of facts in he relieving letter
-review and give feedback that the employee absconded in the BVG Process which normally happens in the subsequent employments and will get checked with you also
- Take steps to recover company assets if any in the custody of such employee
- Black list such employee for Re-Hiring
- In such matters legal cases are not recommended as it is a time consuming futile exercise
From India, Chennai
What is the use of a relieving letter if the other company is not at all concerned about a relieving order? And what is the gain that you have by holding the employee's relieving letter? If an employee is not interested to continue with you, what is the sense in holding him? Is there any labour law which says that an employee should obtain a relieving order from a company and produce it to the company where he joins? NO.
In respect of an employee who has been working in Managerial capacity you can do anything, but in respect of an employee who will get protection of Industrial Disputes Act, you cannot. This is mainly because there is nothing in the Act which says that an employee should give notice and serve notice period though an employer is under a legal obligation to give notice or pay notice pay if he wants to terminate an employee.
The employee can put the date of exit in EPF by himself by logging into his member portal and by this the practice of declaring an employee as absconding will no longer is a serious matter for him. Therefore, even if you declare him to be absconding, so long as he is employable, and the employer is ready to give employment to him, he will get a job. If you send a legal notice, he can respond to it saying that he has resigned and did not want to continue because of the wrong practices your company is having and he may even counter that he had a lot of harassment while he was employed in your establishment. Therefore, think twice and then act.
From India, Kannur
In respect of an employee who has been working in Managerial capacity you can do anything, but in respect of an employee who will get protection of Industrial Disputes Act, you cannot. This is mainly because there is nothing in the Act which says that an employee should give notice and serve notice period though an employer is under a legal obligation to give notice or pay notice pay if he wants to terminate an employee.
The employee can put the date of exit in EPF by himself by logging into his member portal and by this the practice of declaring an employee as absconding will no longer is a serious matter for him. Therefore, even if you declare him to be absconding, so long as he is employable, and the employer is ready to give employment to him, he will get a job. If you send a legal notice, he can respond to it saying that he has resigned and did not want to continue because of the wrong practices your company is having and he may even counter that he had a lot of harassment while he was employed in your establishment. Therefore, think twice and then act.
From India, Kannur
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 is worthy of deep consideration.
Queries relating to 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 place in the exit clause of the contract of employment, always it is qualified with the employer's sole discretion for its acceptance whereas no such restriction while 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 for 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 for it is indisputable that no employee would like to leave a good organization nor an employer would like to lose an ideal employee.
Therefore, instead of ruthless application of his discretionary power in the acceptance of buy-out offer of an exiting employee, the employer should try to ponder over the genuine reasons for the sudden exit and 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, while switching jobs, the exiting employee should also be very conscious about his contractual obligation to serve the full notice period and be qually cautious about the current employer's mood as well as genuine employment requirement 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, therefore, is that if both the parties to the contract of employment have the realization 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 while resignation and afterwards as well.
From India, Salem
Queries relating to 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 place in the exit clause of the contract of employment, always it is qualified with the employer's sole discretion for its acceptance whereas no such restriction while 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 for 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 for it is indisputable that no employee would like to leave a good organization nor an employer would like to lose an ideal employee.
Therefore, instead of ruthless application of his discretionary power in the acceptance of buy-out offer of an exiting employee, the employer should try to ponder over the genuine reasons for the sudden exit and 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, while switching jobs, the exiting employee should also be very conscious about his contractual obligation to serve the full notice period and be qually cautious about the current employer's mood as well as genuine employment requirement 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, therefore, is that if both the parties to the contract of employment have the realization 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 while resignation and afterwards as well.
From India, Salem
The query begs the question why the employer is reluctant in relieving the employee even after completion of the Notice period? Unless there are compelling reasons, any hasty action on the part of the employer is unreasonable and injudicious. And, certainly, such an approach does not measure up as good HR practice.
From India, Kochi
From India, Kochi
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 duel employment is illegal in law? If you are thinking in terms of the reference to it in factory act, you need to read it properly and understand what it really means.
My option 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
What makes you think you have any recourse against the new employer?
And where did you find that duel employment is illegal in law? If you are thinking in terms of the reference to it in factory act, you need to read it properly and understand what it really means.
My option 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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