Hello All,
I am working in an Lead Generation company where I face one day resignations and absconding employees. My question: is the employer liable to pay the employee if he does not serve the notice period or if he is absconding.
Please suggest.
Thank you.
From India, Pune
I am working in an Lead Generation company where I face one day resignations and absconding employees. My question: is the employer liable to pay the employee if he does not serve the notice period or if he is absconding.
Please suggest.
Thank you.
From India, Pune
@ Swati,
Good Afternoon.....!!!!!
Your query depends upon the Appointment letter clause. If you have specified in appointment letter that not serving the notice period will result in to pay cut then you are right. Other wise you don't have a choice to pay employee. As legal actions taken under any labour law will be against the company & labour laws are design majorly in benefit of employees. You need to pay till the last date person has served you.
Hope this will clear your doubts.
All the best.
From India, Ahmedabad
32Good Afternoon.....!!!!!
Your query depends upon the Appointment letter clause. If you have specified in appointment letter that not serving the notice period will result in to pay cut then you are right. Other wise you don't have a choice to pay employee. As legal actions taken under any labour law will be against the company & labour laws are design majorly in benefit of employees. You need to pay till the last date person has served you.
Hope this will clear your doubts.
All the best.
From India, Ahmedabad
I would disagree.
If the appointment letter provides a notice period, that is the best, as you can follow that.
If the appointment letter does not provide the same, you can refer to the terms of employment, employee handbook, etc.
Where that is not available, you can refer to the Model Standing Orders. It has the standard notice period. Some of the state Shop & Establishment Act also specify notice period. If nothing else, you can refer to the custom of 1 month notice period.
You are free to deduct the notice pay from the amount due to the employee on account of his wages for the period worked.
It would be a good idea to keep the working of individual employee's F&F in the file for reference and to defend you self in case of any compliant. Also make it a practice to send a notice to each employee who has absconded asking him to complete notice period or to pay the notice pay to the company. Keep a copy of the same along with proof of delivery (registered AD, POD of courier) in the file for reference.
From India, Mumbai
If the appointment letter provides a notice period, that is the best, as you can follow that.
If the appointment letter does not provide the same, you can refer to the terms of employment, employee handbook, etc.
Where that is not available, you can refer to the Model Standing Orders. It has the standard notice period. Some of the state Shop & Establishment Act also specify notice period. If nothing else, you can refer to the custom of 1 month notice period.
You are free to deduct the notice pay from the amount due to the employee on account of his wages for the period worked.
It would be a good idea to keep the working of individual employee's F&F in the file for reference and to defend you self in case of any compliant. Also make it a practice to send a notice to each employee who has absconded asking him to complete notice period or to pay the notice pay to the company. Keep a copy of the same along with proof of delivery (registered AD, POD of courier) in the file for reference.
From India, Mumbai
I echo Mr. Banerjee you have to send notice to the employee stating the clause mentioned in the Appointment Letter/Employee Handbook/Standing Order that the employee has to complete the notice period or Notice Pay to the company. In absence of any reply to the notice the company can forfeit the dues from his FnF.
From India, Ahmadabad
From India, Ahmadabad
The notice period is part of service conditions that are governed by various enactments applicable to employer/establishment/employee.................e.g. Standing Orders (certified/Model), (Name of the state) Shops and Commercial Establishments Act that was enacted to govern the service conditions of employees working in such establishments and these being instrument of law/statue/Act shall prevail upon any private agreement drafted by employer be it appointment letter/HR policy/service Rules and Regulations/contract of employment/ service agreement etc..............
Thus if the notice period as per these enactments is NIL then any notice period say 15/30/90 days stated in appointment letter/HR policy/service Rules and Regulations/contract of employment/ service agreement etc..........shall be VOID.
Thus no notice pay can be adjusted.
The max. notice period (as per length of service, confirmation of service.........is 30 days)...........thus if notice period is applicable as per the enactments, notice pay can be adjusted ..................otherwise NO.
The company should issue communications (preferably by Regd. post), show cause notice, as per standing orders.....and issue termination order on record..........
As per Model standing orders the employee shall loose lien on employment after unauthorized absence of 10 days.......
The employer is bound to supply the service certificate,payment of FnF wages on the day of termination...
From India, Chandigarh
Thus if the notice period as per these enactments is NIL then any notice period say 15/30/90 days stated in appointment letter/HR policy/service Rules and Regulations/contract of employment/ service agreement etc..........shall be VOID.
Thus no notice pay can be adjusted.
The max. notice period (as per length of service, confirmation of service.........is 30 days)...........thus if notice period is applicable as per the enactments, notice pay can be adjusted ..................otherwise NO.
The company should issue communications (preferably by Regd. post), show cause notice, as per standing orders.....and issue termination order on record..........
As per Model standing orders the employee shall loose lien on employment after unauthorized absence of 10 days.......
The employer is bound to supply the service certificate,payment of FnF wages on the day of termination...
From India, Chandigarh
In case of resignation by an employee, the shortfall notice period pay can be adjusted at the time of Fnf payment adjustment as stated above, especially in terms of statutory enactment applicable. But where employee has simply absconded then, absconding is construed to be misconduct and for which proper inquiry has to be conducted and punishment imposed vide M/s Economic Transport v Dharmendra, decided by Delhi High Court in 2014.
Thanks
From India, New Delhi
Thanks
From India, New Delhi
I am in full agreement with Mr. Sushil K Luthra and in thread also appreciate for citing judgments by court of law and thus making attempt to make the community of employees that includes the affected employees as well as fraternity of personnel in HR and legal cells.
The cited judgement highlights................."Abandonment amounts to misconduct, which requires a proper inquiry................... which has not been conducted in this case. So, abandonment is not proved. "
In addition the misconduct alleged by employer should feature in list of misconducts included in standing orders.
There are judgments that lay down that misconduct that is not included is not ..................a misconduct.
Supreme Court of India
Glaxo Laboratories vs The Presiding Officer, Labour ...
From India, Chandigarh
The cited judgement highlights................."Abandonment amounts to misconduct, which requires a proper inquiry................... which has not been conducted in this case. So, abandonment is not proved. "
In addition the misconduct alleged by employer should feature in list of misconducts included in standing orders.
There are judgments that lay down that misconduct that is not included is not ..................a misconduct.
Supreme Court of India
Glaxo Laboratories vs The Presiding Officer, Labour ...
From India, Chandigarh
Besides necessity of listing specifically the misconduct in standing orders, it goes without saying that generally in rules framed under State Shops and Establishment Act of various States, habitual absence or absence without leave is specified as misconduct. For example Delhi Shops and Establishment Rules provide so. In respect of Shops and Establishment Rules, it was held in Calcutta Chemicals Co. Ltd v DK Burman, decided by Calcutta HC in 1968, para 11 that dismissal can be done for misconduct specified in the rules framed under the Shops and Establishment Act.
Thanks
Sushil
From India, New Delhi
Thanks
Sushil
From India, New Delhi
Community Support and Knowledge-base on business, career and organisational prospects and issues - Register and Log In to CiteHR and post your query, download formats and be part of a fostered community of professionals.
Whether Employees Terminated For Misconduct Entitled To Payment Of Statutory Dues.docx
Amendment to Payment of Bonus Act 2015.jpg
Online payment of PF mandatory from 1.1.2016.pdf