Dear Seniors,
I am working in a pharma organization in the HR department. One of our senior chemists submitted her resignation, but her HOD has not accepted it. According to him, she has to serve at least a one-month notice period instead of three months, but she discontinued her duties the next day. We sent her the first absenteeism letter, and she responded by emailing another resignation without referring to the absenteeism letter. We have also sent her a second reminder. What should be the next procedure now?
We have now received another resignation from another Senior Chemist, and her notice period is also three months. In the second case, the employee applied for leave for three days, and after five days, we received a resignation via email citing unavoidable circumstances as the reason for leaving.
These chemists joined us as trainee chemists for one year. After successfully completing their training, they undergo a six-month probation period. During the probation period, if they decide to leave, they must serve a one-month notice period. Upon completing the probation period, they receive confirmation, and the notice period increases from one month to three months. This information is provided for reference.
We are currently facing an issue where employees receive their salaries on the seventh of the month, and they submit their resignations via email between the 9th and 10th of the month. How can we enforce the notice period in such cases? Should we accept resignations via email? Please advise.
Shailza
From India, Mumbai
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11I am working in a pharma organization in the HR department. One of our senior chemists submitted her resignation, but her HOD has not accepted it. According to him, she has to serve at least a one-month notice period instead of three months, but she discontinued her duties the next day. We sent her the first absenteeism letter, and she responded by emailing another resignation without referring to the absenteeism letter. We have also sent her a second reminder. What should be the next procedure now?
We have now received another resignation from another Senior Chemist, and her notice period is also three months. In the second case, the employee applied for leave for three days, and after five days, we received a resignation via email citing unavoidable circumstances as the reason for leaving.
These chemists joined us as trainee chemists for one year. After successfully completing their training, they undergo a six-month probation period. During the probation period, if they decide to leave, they must serve a one-month notice period. Upon completing the probation period, they receive confirmation, and the notice period increases from one month to three months. This information is provided for reference.
We are currently facing an issue where employees receive their salaries on the seventh of the month, and they submit their resignations via email between the 9th and 10th of the month. How can we enforce the notice period in such cases? Should we accept resignations via email? Please advise.
Shailza
From India, Mumbai
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The employee seems to work in UP. As per Section 20(2) of the UP Shops and Establishment Act, 1962, even if the notice period is one month or more and the employee fails to comply with the said term, the employer shall be entitled to forfeit not exceeding 15 days' salary of such employee from his unpaid salary. Thus, having worked for 10 days or more, that unpaid salary can be forfeited.
Thanks,
Sushil
From India, New Delhi
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Thanks,
Sushil
From India, New Delhi
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Dear Shailza,
Please consult the employees in a friendly manner to find out what tempts them to leave the company and if there are any remedies to overcome such situations. Also, please let us know if the increase in the notice period from 1 month to 3 months on either side has been consented to by all employees.
Lastly, most companies have switched to a 3-month notice period from 1 month. However, in practice, new employers rarely wait for the full 3 months for the employment of any candidate.
Thank you.
From India, Ahmadabad
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Please consult the employees in a friendly manner to find out what tempts them to leave the company and if there are any remedies to overcome such situations. Also, please let us know if the increase in the notice period from 1 month to 3 months on either side has been consented to by all employees.
Lastly, most companies have switched to a 3-month notice period from 1 month. However, in practice, new employers rarely wait for the full 3 months for the employment of any candidate.
Thank you.
From India, Ahmadabad
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Dear,
If you do not have his dues, then the only remedy is filing a civil suit for the recovery of dues. The other psychological remedy is mentioned in the experience certificate, which you may send by registered post stating that the employee has failed to pay the dues amounting to Rs. in respect of the notice period for which a civil suit is contemplated.
Thanks,
Sushil
From India, New Delhi
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If you do not have his dues, then the only remedy is filing a civil suit for the recovery of dues. The other psychological remedy is mentioned in the experience certificate, which you may send by registered post stating that the employee has failed to pay the dues amounting to Rs. in respect of the notice period for which a civil suit is contemplated.
Thanks,
Sushil
From India, New Delhi
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You cannot file a legal suit for the recovery of a short/full notice period. There may be several reasons to quit a job after receiving the salary, and one of the reasons, as I mentioned in my earlier post, is the three-month notice period, which is practically unfair to the employees.
From India, Ahmadabad
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From India, Ahmadabad
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It is recognized by Karnataka HC in Sri Anand v BEML that the shortfall notice period can be adjusted against the dues of the employee. It is thus evident that it is a debt of the employee which can be recovered by the employer filing a civil suit if it cannot be adjusted against the dues of the employee. Even under the UP Shops and Establishment Act, as stated earlier, the forfeiture of 15 days' salary does not mean the balance notice period salary is forgone. It can be recovered.
Thanks,
Sushil
From India, New Delhi
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Thanks,
Sushil
From India, New Delhi
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Most companies face these issues. The best remedy is not to issue Relieving or Experience letters to employees who do not serve the notice period. So when they move to another company, there would be a background check conducted.
At this stage, the previous employer can always state the reason that the employee's conduct was not right and they did not serve the notice period. This would create awareness for the hiring manager, and the job offer may be revoked as well.
This creates a loss for the employee with the following reasons:
1. He could either state he never worked for your company and join with lesser experience and pay.
2. His/Her job offer could be revoked, and as employees, they would learn to complete the notice period in future companies.
3. Word of mouth to ex-employees - That a bad review of the notice period was provided by HR and they are still unable to find a job.
4. Credibility and stability issues for future hiring.
If the salary payment date is the 7th of every month, do you have a loss of revenue? I am sure the Payroll department would have a certain cut-off date for the salary period. If there is none, then probably a timesheet ATS could be purchased or tracked, and the salary could be paid accordingly.
From India, Bangalore
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At this stage, the previous employer can always state the reason that the employee's conduct was not right and they did not serve the notice period. This would create awareness for the hiring manager, and the job offer may be revoked as well.
This creates a loss for the employee with the following reasons:
1. He could either state he never worked for your company and join with lesser experience and pay.
2. His/Her job offer could be revoked, and as employees, they would learn to complete the notice period in future companies.
3. Word of mouth to ex-employees - That a bad review of the notice period was provided by HR and they are still unable to find a job.
4. Credibility and stability issues for future hiring.
If the salary payment date is the 7th of every month, do you have a loss of revenue? I am sure the Payroll department would have a certain cut-off date for the salary period. If there is none, then probably a timesheet ATS could be purchased or tracked, and the salary could be paid accordingly.
From India, Bangalore
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The main issue raised by the querist is how to recover the notice period salary from those who abscond or send their intimation about inability to continue by email. The querist does not want to initiate disciplinary proceedings against such employees but is interested in recovering the notice period salary.
One cannot control attrition of employees if the working environment, wages, etc., are not conducive. Besides the courses of action suggested by me in the above thread, let us see whether the recourse of not providing an experience certificate to such an employee can be a safe measure against an employer.
Under section 32 of the UP Shops and Establishment Act and rule 18 of the rules, the employer is required to maintain registers, records, etc. Section 12 prescribes that no deduction shall be made by an employer from the wages of an employee except on account of the specified heads. Section 33 deals with contravention of provisions and states that any person who contravenes or fails to comply with any of the provisions of this Act or of the rules made thereunder, other than those of subsection (1) of Section 20, shall be guilty of an offense under this Act.
Under Rule 18(1)(b) and (c) of the Uttar Pradesh Dookan Aur Vanijya Adhishthan Niyamavali, 1963, Form G is maintained regarding the attendance register of employees.
One thing is clear: the employer cannot contract out contrary to the Shops and Establishment Act unless the terms are more beneficial to the employee. Thus, deduction of notice period pay beyond the limit permissible under the Act is barred and will be an offense.
As per the decision of the Madras HC in Hari Raj H v Shah Wallace Ltd, decided on 13.1.99, the notice period cannot be more than what is prescribed under the Shops and Establishment Act despite the agreement being contrary to it. Furthermore, it is the duty of the Inspector under the Act to ensure that the employer is complying with the provisions of the Act.
It is pointed out that under section 2(f) of the RTI Act, 2005, information from a private body can be obtained if it can be accessed by a public authority. As stated above, the attendance register and wages register can be accessed by the PIO under the RTI Act, 2005.
Thus, under the RTI Act, an employee can also seek information from the inspector under the Act regarding his attendance in the establishment from the date of his appointment till his last date in the establishment. Failure to give information is punishable.
By making a complaint to the inspector and asking for information on what steps he has taken to ensure compliance with the provisions of the Act and rules, and further asking for a copy of the relieving letter because he is a public authority under the Act and these pieces of information are within his purview, the employer cannot withhold the experience and relieving certificate. If an employer violates the provisions, the inspector is required to take appropriate action. And if he does not do anything, then even further remedies are there.
Even under the Model Standing Orders, every permanent workman is entitled to an experience certificate on his dismissal, discharge, or superannuation.
Regarding the concept that the job offer may be revoked by the future employer, then that employer will be endangering himself for being liable to pay damages. And in the suit for damages, if that employer discloses information imparted by the past employer pursuant to which he revoked the job offer, and that information happens to be contrary to the statutory provisions stated above, then the past employer can also be sued for damages. So every step has to be cautiously taken within the limits of the law and without the motive of victimization.
Thanks,
Sushil
From India, New Delhi
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One cannot control attrition of employees if the working environment, wages, etc., are not conducive. Besides the courses of action suggested by me in the above thread, let us see whether the recourse of not providing an experience certificate to such an employee can be a safe measure against an employer.
Under section 32 of the UP Shops and Establishment Act and rule 18 of the rules, the employer is required to maintain registers, records, etc. Section 12 prescribes that no deduction shall be made by an employer from the wages of an employee except on account of the specified heads. Section 33 deals with contravention of provisions and states that any person who contravenes or fails to comply with any of the provisions of this Act or of the rules made thereunder, other than those of subsection (1) of Section 20, shall be guilty of an offense under this Act.
Under Rule 18(1)(b) and (c) of the Uttar Pradesh Dookan Aur Vanijya Adhishthan Niyamavali, 1963, Form G is maintained regarding the attendance register of employees.
One thing is clear: the employer cannot contract out contrary to the Shops and Establishment Act unless the terms are more beneficial to the employee. Thus, deduction of notice period pay beyond the limit permissible under the Act is barred and will be an offense.
As per the decision of the Madras HC in Hari Raj H v Shah Wallace Ltd, decided on 13.1.99, the notice period cannot be more than what is prescribed under the Shops and Establishment Act despite the agreement being contrary to it. Furthermore, it is the duty of the Inspector under the Act to ensure that the employer is complying with the provisions of the Act.
It is pointed out that under section 2(f) of the RTI Act, 2005, information from a private body can be obtained if it can be accessed by a public authority. As stated above, the attendance register and wages register can be accessed by the PIO under the RTI Act, 2005.
Thus, under the RTI Act, an employee can also seek information from the inspector under the Act regarding his attendance in the establishment from the date of his appointment till his last date in the establishment. Failure to give information is punishable.
By making a complaint to the inspector and asking for information on what steps he has taken to ensure compliance with the provisions of the Act and rules, and further asking for a copy of the relieving letter because he is a public authority under the Act and these pieces of information are within his purview, the employer cannot withhold the experience and relieving certificate. If an employer violates the provisions, the inspector is required to take appropriate action. And if he does not do anything, then even further remedies are there.
Even under the Model Standing Orders, every permanent workman is entitled to an experience certificate on his dismissal, discharge, or superannuation.
Regarding the concept that the job offer may be revoked by the future employer, then that employer will be endangering himself for being liable to pay damages. And in the suit for damages, if that employer discloses information imparted by the past employer pursuant to which he revoked the job offer, and that information happens to be contrary to the statutory provisions stated above, then the past employer can also be sued for damages. So every step has to be cautiously taken within the limits of the law and without the motive of victimization.
Thanks,
Sushil
From India, New Delhi
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What if the employer makes the Salary payment on the first date of every month and there is no balance amount to be recovered from the employee against Notice Period ???
From India, Ahmadabad
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From India, Ahmadabad
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No deduction of any kind other than authorized as per Shops and Establishment Act or under the Payment of Wages Act is permissible; otherwise, the employer renders himself liable for prosecution or fines under the respective Acts. Any contract allowing the employer to deduct in this manner will be null and void.
Hypothetically, if a deduction in respect of notice pay has been made every month, what happens if an employee is to be terminated when no notice pay is payable by the employee? Would the employer not be estopped from proceeding with any disciplinary proceedings for misconduct given that the notice pay has already been recovered from the employee?
An employer cannot be allowed to earn unjust enrichment through interest on such recoveries, especially if the salary runs into lakhs!
Thanks,
Sushil
From India, New Delhi
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Hypothetically, if a deduction in respect of notice pay has been made every month, what happens if an employee is to be terminated when no notice pay is payable by the employee? Would the employer not be estopped from proceeding with any disciplinary proceedings for misconduct given that the notice pay has already been recovered from the employee?
An employer cannot be allowed to earn unjust enrichment through interest on such recoveries, especially if the salary runs into lakhs!
Thanks,
Sushil
From India, New Delhi
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