Dear Seniors,
Need your guidance once again.
One of our female employees had to terminate her seven-month pregnancy due to some reason. When this happened, she just called the office and said that she was not feeling well and wouldn't be able to come to the office, but she did not confirm how long she would be on leave.
During her break period, she did not call the management once regarding her health reports or to show her interest in rejoining. After 2.5 months, she called to rejoin the office, which we accepted. However, after rejoining, she did not submit any medical reports or leave applications as proof, and we also did not ask, considering her difficult situation.
It has been 1.5 years since this matter, and she has resigned for better prospects. She is now asking us to provide an experience letter for the continuous period and is actively pursuing it.
She originally joined on 03/01/2008, was on a break from 15/09/2011 to 30/11/2011, and left the organization on 31.05.2013.
My query is whether, as per the law, she should receive an experience letter for the continuous period, even though she was on a break of 2.5 months without proper intimation.
When we denied giving her the experience letter, she presented a letter from a doctor stating that she was recommended bed rest for that duration.
Please guide on how to tackle this case.
From India, Mumbai
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20Need your guidance once again.
One of our female employees had to terminate her seven-month pregnancy due to some reason. When this happened, she just called the office and said that she was not feeling well and wouldn't be able to come to the office, but she did not confirm how long she would be on leave.
During her break period, she did not call the management once regarding her health reports or to show her interest in rejoining. After 2.5 months, she called to rejoin the office, which we accepted. However, after rejoining, she did not submit any medical reports or leave applications as proof, and we also did not ask, considering her difficult situation.
It has been 1.5 years since this matter, and she has resigned for better prospects. She is now asking us to provide an experience letter for the continuous period and is actively pursuing it.
She originally joined on 03/01/2008, was on a break from 15/09/2011 to 30/11/2011, and left the organization on 31.05.2013.
My query is whether, as per the law, she should receive an experience letter for the continuous period, even though she was on a break of 2.5 months without proper intimation.
When we denied giving her the experience letter, she presented a letter from a doctor stating that she was recommended bed rest for that duration.
Please guide on how to tackle this case.
From India, Mumbai
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Dear Ravitashukla1,
It's surprising, shocking, and sad to find that even in cases where the employee had such a traumatic experience, the HR or the organization is being insensitive or inhuman, especially when issuing an experience letter.
Was there any termination of services?
Was the employee not eligible for maternity leave?
Was she allowed maternity leave?
Did she ask for maternity leave, which was due to her?
During her absence, the reason for which is well-known, was she advised or counseled to avail of the maternity leave?
After denying her rightful maternity leave (which is available for termination of pregnancy/miscarriage), and now, for a mere absence of 2.5 months supported by medical certificates, the query is raised - whether she can get an experience letter for the continuous period?
If it is not unfair, then what else can it be?
Losing a seven-month pregnancy takes its toll, not only physically but also mentally and emotionally. A 10-week absence on medical grounds is neither uncommon nor abnormal. In fact, it would be inhuman to force someone to work under such circumstances.
Where is the question of any break in her service when her unauthorized absence (though on justified medical grounds) has been condoned, and she has continued with her services?
Hope, while trying to answer the above queries, you will find your answer.
I also understand that it's beyond your sphere of influence to change things; however, you can at least let the management understand that denying her an experience letter (without any break as her service was continuous) would be unfair and against the prevalent laws, especially when she was denied any statutory maternity benefits.
Warm regards.
From India, Delhi
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It's surprising, shocking, and sad to find that even in cases where the employee had such a traumatic experience, the HR or the organization is being insensitive or inhuman, especially when issuing an experience letter.
Was there any termination of services?
Was the employee not eligible for maternity leave?
Was she allowed maternity leave?
Did she ask for maternity leave, which was due to her?
During her absence, the reason for which is well-known, was she advised or counseled to avail of the maternity leave?
After denying her rightful maternity leave (which is available for termination of pregnancy/miscarriage), and now, for a mere absence of 2.5 months supported by medical certificates, the query is raised - whether she can get an experience letter for the continuous period?
If it is not unfair, then what else can it be?
Losing a seven-month pregnancy takes its toll, not only physically but also mentally and emotionally. A 10-week absence on medical grounds is neither uncommon nor abnormal. In fact, it would be inhuman to force someone to work under such circumstances.
Where is the question of any break in her service when her unauthorized absence (though on justified medical grounds) has been condoned, and she has continued with her services?
Hope, while trying to answer the above queries, you will find your answer.
I also understand that it's beyond your sphere of influence to change things; however, you can at least let the management understand that denying her an experience letter (without any break as her service was continuous) would be unfair and against the prevalent laws, especially when she was denied any statutory maternity benefits.
Warm regards.
From India, Delhi
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Hello,
I seem to differ from the earlier response (from Mr. Raj Kumar Hansdah).
In my view, the employee's employment is continuous but the experience is not. The reasons for absence may be legitimate, but the fact is she has not performed any work in her employment. Therefore, the employer can rightfully deny issuing an experience certificate for the entire period of employment and state the fact that for the period of absence, the employee has not worked. While it would be the employer's right to be brutal about the facts of the situation, one must consider if it is worth and necessary to take a supposedly "principled stand" or "high moral grounds" and act difficult.
A period of 2.5 months is too small to make an issue of, and if one still insists on doing so, then one must also evaluate the quality and quantity of the employee's performance/contributions and be able to state (for example) that the employment period was "x" years, work was performed for "y" years, and the value addition was for "z" years. If one assigns values to "x", "y", and "z", one may painfully realize that employment of five years may show "quality contributions" amounting to just a year or so!
All would agree that this will be an entirely fallacious approach besides being unfair and extremely narrow-minded.
I recommend that as management and as HR, you should choose to be magnanimous and ignore this small period (and her behavior) from certifications, certify the total duration of employment, and relieve her!
Regards,
Samvedan
October 11, 2013
From India, Pune
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I seem to differ from the earlier response (from Mr. Raj Kumar Hansdah).
In my view, the employee's employment is continuous but the experience is not. The reasons for absence may be legitimate, but the fact is she has not performed any work in her employment. Therefore, the employer can rightfully deny issuing an experience certificate for the entire period of employment and state the fact that for the period of absence, the employee has not worked. While it would be the employer's right to be brutal about the facts of the situation, one must consider if it is worth and necessary to take a supposedly "principled stand" or "high moral grounds" and act difficult.
A period of 2.5 months is too small to make an issue of, and if one still insists on doing so, then one must also evaluate the quality and quantity of the employee's performance/contributions and be able to state (for example) that the employment period was "x" years, work was performed for "y" years, and the value addition was for "z" years. If one assigns values to "x", "y", and "z", one may painfully realize that employment of five years may show "quality contributions" amounting to just a year or so!
All would agree that this will be an entirely fallacious approach besides being unfair and extremely narrow-minded.
I recommend that as management and as HR, you should choose to be magnanimous and ignore this small period (and her behavior) from certifications, certify the total duration of employment, and relieve her!
Regards,
Samvedan
October 11, 2013
From India, Pune
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In all cases, both the employer and employee need to be responsible for their actions. To prove that the lady had some physical issues (even if not pregnancy), she must submit some documents such as medical reports.
If the employer (HR) was aware that she had pregnancy-related issues, he should have advised her to opt for maternity benefits under applicable laws. HR's role is that of a friend, philosopher, and guide. However, in this case, HR skipped all three roles.
I would say both sides played a dubious role and acted in an irresponsible manner, creating unnecessary ifs and buts.
Still, the employer should play the role of a guardian and after giving a strict warning, should provide her with the employment experience letter.
Regards,
Kamal
From India, Pune
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If the employer (HR) was aware that she had pregnancy-related issues, he should have advised her to opt for maternity benefits under applicable laws. HR's role is that of a friend, philosopher, and guide. However, in this case, HR skipped all three roles.
I would say both sides played a dubious role and acted in an irresponsible manner, creating unnecessary ifs and buts.
Still, the employer should play the role of a guardian and after giving a strict warning, should provide her with the employment experience letter.
Regards,
Kamal
From India, Pune
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Though the employee did not follow certain procedural courtesies for taking leave, you have allowed her to report for duty and work for 1.5 years thereafter. Thus, you have gracefully condoned her conduct. It would not be fitting now to pick on her lapses to deny her an experience certificate and relieving letter, especially considering she was absent for only about 2.5 months in a five-year service period.
Additionally, you cannot treat a period of absence as a break in service in the eyes of the law after condoning her absence and allowing her to continue in service. Therefore, it would not be prudent to include the period of absence in the experience certificate. An experience certificate is not an attendance certificate; it should reflect an opinion on the general performance of an employee during their tenure. I suggest that you continue to exhibit the same grace you showed in condoning her absence by providing her with the experience certificate and relieving letter.
B. Saikumar
From India, Mumbai
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Additionally, you cannot treat a period of absence as a break in service in the eyes of the law after condoning her absence and allowing her to continue in service. Therefore, it would not be prudent to include the period of absence in the experience certificate. An experience certificate is not an attendance certificate; it should reflect an opinion on the general performance of an employee during their tenure. I suggest that you continue to exhibit the same grace you showed in condoning her absence by providing her with the experience certificate and relieving letter.
B. Saikumar
From India, Mumbai
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Dear Ravita Shukla,
The Maternity Benefit Act 1961 is applicable to you. I presume that the benefits under the Act have not been claimed and paid for during this period, although you are entitled to them. Section 12 thereof clearly forbids an employer to discharge or dismiss an employee who is on maternity leave. Now that you have received the medical certificate, it would be more than necessary to regularize your absence of 2.5 months. Hence, it would be proper to issue you the experience certificate as requested.
KK
From India, Bhopal
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The Maternity Benefit Act 1961 is applicable to you. I presume that the benefits under the Act have not been claimed and paid for during this period, although you are entitled to them. Section 12 thereof clearly forbids an employer to discharge or dismiss an employee who is on maternity leave. Now that you have received the medical certificate, it would be more than necessary to regularize your absence of 2.5 months. Hence, it would be proper to issue you the experience certificate as requested.
KK
From India, Bhopal
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I agree with B. Saikumar. Also, as per the latest court judgment, unless a break in service is officially notified to the employee, it will not be considered as a break in service. Just attendance not marked and salary not paid cannot be treated as a break in service.
From India, Pune
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From India, Pune
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If we look into this matter on statutory grounds, she had already worked in a company for more than 80 days of continuous service before going on maternity leave. As per the maternity clause, a lady can avail leave for 90 days and an extra month without pay if the need is shown by the medical practitioner.
In the above-mentioned case, the pregnancy was complicated, and the lady didn't provide the medical certificate from an approved doctor, or even if she did, it was submitted too late.
The fault lies with the management since medical reports should have been requested at the beginning. Alternatively, during the period when she did not inform about her status, the management should have sent a letter to her within 30 days of her approved leave termination, stating that her continuous absence could be considered voluntary abandonment of services. With the expiry of the last day to represent herself in the company, a letter should have been sent to her stating voluntary abandonment of services effective from the date she left the organization. By doing this, you would have complied with Section 2(OO) of the Industrial Dispute Act, 1947, and Clause 42(10) of the Indian Standing Order.
As of now, there is no reason to exacerbate the situation, and the management should provide her with an experience certificate. However, in the experience certificate, it can be mentioned that during the period of service, the total number of working days is as calculated by your administration, and there was a discontinuation of service for 2.05 months. There is no statutory format for an experience certificate. Nevertheless, it would be highly unethical and inhumane to mention this, especially considering the short duration of discontinuation, especially on maternity grounds. We should not act in an inhuman way and should provide her with an experience certificate.
With regards,
Rajesh Rajput
From India, Faridabad
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In the above-mentioned case, the pregnancy was complicated, and the lady didn't provide the medical certificate from an approved doctor, or even if she did, it was submitted too late.
The fault lies with the management since medical reports should have been requested at the beginning. Alternatively, during the period when she did not inform about her status, the management should have sent a letter to her within 30 days of her approved leave termination, stating that her continuous absence could be considered voluntary abandonment of services. With the expiry of the last day to represent herself in the company, a letter should have been sent to her stating voluntary abandonment of services effective from the date she left the organization. By doing this, you would have complied with Section 2(OO) of the Industrial Dispute Act, 1947, and Clause 42(10) of the Indian Standing Order.
As of now, there is no reason to exacerbate the situation, and the management should provide her with an experience certificate. However, in the experience certificate, it can be mentioned that during the period of service, the total number of working days is as calculated by your administration, and there was a discontinuation of service for 2.05 months. There is no statutory format for an experience certificate. Nevertheless, it would be highly unethical and inhumane to mention this, especially considering the short duration of discontinuation, especially on maternity grounds. We should not act in an inhuman way and should provide her with an experience certificate.
With regards,
Rajesh Rajput
From India, Faridabad
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As asked by Mr. Raj Kumar, did she sanction Maternity Leave as she is eligible to avail? This is a million-dollar question.
If she is not aware of it, did the HR department (on humanitarian grounds) send an application for applying for maternity leave to the hospital where she got admitted for the miscarriage? After returning from leave, the HR failed to request the leave application along with the medical certificate to that effect and consider the same as maternity leave.
Did she receive pay during the break period? If she was paid for that period, then it is considered as continuous service.
If she did not receive her pay, then it is against the law, i.e., not following the Maternity Benefit Act by your company.
If you want to avoid unwanted litigation, then you must issue the certificate for continuous service and resolve the issue amicably. If you are not issuing the certificate or issue the certificate with a break during that period, then it is evident that you are not following the Maternity Benefit Act.
Think wisely and take the necessary action without further delay.
From India, Kumbakonam
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If she is not aware of it, did the HR department (on humanitarian grounds) send an application for applying for maternity leave to the hospital where she got admitted for the miscarriage? After returning from leave, the HR failed to request the leave application along with the medical certificate to that effect and consider the same as maternity leave.
Did she receive pay during the break period? If she was paid for that period, then it is considered as continuous service.
If she did not receive her pay, then it is against the law, i.e., not following the Maternity Benefit Act by your company.
If you want to avoid unwanted litigation, then you must issue the certificate for continuous service and resolve the issue amicably. If you are not issuing the certificate or issue the certificate with a break during that period, then it is evident that you are not following the Maternity Benefit Act.
Think wisely and take the necessary action without further delay.
From India, Kumbakonam
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Dear All,
Many learned followers have given very valuable views. They have shown sympathy and concern about a female employee, motherhood, and the agony she had to go through due to some medical reasons connected with her pregnancy. However, rules are rules and law is law, which have to be followed in all circumstances. We may have sympathy, but if the law does not permit, nothing can be done in black and white.
Now, to the basic question: "Whether the relieved employee is entitled to the whole period of an experience certificate or not." Certainly, she is. She has been treated as on "maternity leave" for the period of absence. Even if it was not the case, if an employee has not been issued with any letter of discontinuance of service during his service period, the period of absence without pay would not amount to a break in service; thus, she is entitled to an experience certificate for the entire period for which she was employed with your organization. However, for the purpose of calculating the payment of Gratuity, the period of absence without pay is deducted from the entire period of service, and gratuity is payable for the remaining period.
Best wishes.
AK Jain
HR Personnel
NCL, CIL
From India, New+Delhi
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Many learned followers have given very valuable views. They have shown sympathy and concern about a female employee, motherhood, and the agony she had to go through due to some medical reasons connected with her pregnancy. However, rules are rules and law is law, which have to be followed in all circumstances. We may have sympathy, but if the law does not permit, nothing can be done in black and white.
Now, to the basic question: "Whether the relieved employee is entitled to the whole period of an experience certificate or not." Certainly, she is. She has been treated as on "maternity leave" for the period of absence. Even if it was not the case, if an employee has not been issued with any letter of discontinuance of service during his service period, the period of absence without pay would not amount to a break in service; thus, she is entitled to an experience certificate for the entire period for which she was employed with your organization. However, for the purpose of calculating the payment of Gratuity, the period of absence without pay is deducted from the entire period of service, and gratuity is payable for the remaining period.
Best wishes.
AK Jain
HR Personnel
NCL, CIL
From India, New+Delhi
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Relieving & Experience Letter.doc