Dear Sir/Madam,
One of the employees resigned on 9th March 20, but his resignation was not accepted, and he continued working until 21st March. The company also paid him for March and April salary (lockdown period). The office resumed operations from 18th May 20, and the employee worked until 31st May. However, he discontinued from 2nd June onwards. When we called him to inquire about his absence, he mentioned that he could not continue due to personal reasons.
After a reminder, he came and submitted the company assets. However, his manager is reluctant to process his Full and Final (F&F) settlement due to the absence of an official notification with a notice period. The employee is now threatening to go to the labor court if he does not receive his salary/F&F.
Is his case strong enough to file a case in the labor court, and what should be done in such a scenario for the betterment of the company and the employee, considering I am HR?
Kindly provide your suggestions.
Regards
From India, Taramani
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2One of the employees resigned on 9th March 20, but his resignation was not accepted, and he continued working until 21st March. The company also paid him for March and April salary (lockdown period). The office resumed operations from 18th May 20, and the employee worked until 31st May. However, he discontinued from 2nd June onwards. When we called him to inquire about his absence, he mentioned that he could not continue due to personal reasons.
After a reminder, he came and submitted the company assets. However, his manager is reluctant to process his Full and Final (F&F) settlement due to the absence of an official notification with a notice period. The employee is now threatening to go to the labor court if he does not receive his salary/F&F.
Is his case strong enough to file a case in the labor court, and what should be done in such a scenario for the betterment of the company and the employee, considering I am HR?
Kindly provide your suggestions.
Regards
From India, Taramani
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You have mentioned in your post that the employee's resignation letter is not accepted. Did you notify the same to your employee? Please send an official communication to him to report for duty forthwith and failure to do so shall attract strict disciplinary action including termination of his services, besides taking legal action against him, by the company. After communicating with him, you can even publish your memo in a leading newspaper.
From India, Aizawl
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From India, Aizawl
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Dear Maneka,
I fully agree with Mr. R.K. Nair that the cause of action for taking any legal action by the employee has not arisen so far, had you paid the salary up to May 2020. However, how long can you keep an unwilling employee in employment by compulsion? It seems that you have not taken any follow-up action on his resignation, either accepting it or rejecting it for any valid reason, such as exigencies of work or fulfillment of notice conditions. Even the notice condition can be waived off by the management, and the individual may be officially relieved now.
From India, Salem
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I fully agree with Mr. R.K. Nair that the cause of action for taking any legal action by the employee has not arisen so far, had you paid the salary up to May 2020. However, how long can you keep an unwilling employee in employment by compulsion? It seems that you have not taken any follow-up action on his resignation, either accepting it or rejecting it for any valid reason, such as exigencies of work or fulfillment of notice conditions. Even the notice condition can be waived off by the management, and the individual may be officially relieved now.
From India, Salem
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Is there any point in continuing with an unwilling horse? He has submitted his resignation and returned the office assets, but you are yet to notify either the acceptance of the resignation or its rejection. His Manager refusing F&F is not sufficient to keep the matter pending indefinitely. He has served you for nearly three months; does this not suffice for the notice period?
He has threatened you with a Labour Court case, but it is more of an empty threat as there is a basic issue of locus standi in the matter. This matter, if defended properly, cannot be tried in the Labour Court.
Notwithstanding the legal position as stated above, it is felt that the employee is not at fault if the resignation is not accepted, as it appears he has completed the notice period without any notice regarding its rejection.
From India, Mumbai
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He has threatened you with a Labour Court case, but it is more of an empty threat as there is a basic issue of locus standi in the matter. This matter, if defended properly, cannot be tried in the Labour Court.
Notwithstanding the legal position as stated above, it is felt that the employee is not at fault if the resignation is not accepted, as it appears he has completed the notice period without any notice regarding its rejection.
From India, Mumbai
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Hi Sir,
It is better to settle the issue amicably. Full and final settlement is always in existence. So both are sailing in the same boat. Everyone has their own reasons to defend during the lockdown, corona unusual situation. The company has no business, and employees have no work to do until recent relaxations.
So it's better to sit together and settle the issue amicably with an open mind on both sides with liberal thoughts.
From India, Nellore
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It is better to settle the issue amicably. Full and final settlement is always in existence. So both are sailing in the same boat. Everyone has their own reasons to defend during the lockdown, corona unusual situation. The company has no business, and employees have no work to do until recent relaxations.
So it's better to sit together and settle the issue amicably with an open mind on both sides with liberal thoughts.
From India, Nellore
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Dear all,
I need help. What should I do?
There is a shop where one of the laborers works. Due to some reason, he has been denied work. As you know, for a single worker, no shopkeeper maintains a wages register; they only note down the payments in a personal diary. Now, he and his father, with the help of a lawyer, went to labor court and claimed that for the last two years, his owner did not pay him. Now, there is a summons against the owner. Please suggest what the owner should do as he is honest but earns good money.
From India, Delhi
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I need help. What should I do?
There is a shop where one of the laborers works. Due to some reason, he has been denied work. As you know, for a single worker, no shopkeeper maintains a wages register; they only note down the payments in a personal diary. Now, he and his father, with the help of a lawyer, went to labor court and claimed that for the last two years, his owner did not pay him. Now, there is a summons against the owner. Please suggest what the owner should do as he is honest but earns good money.
From India, Delhi
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The employee submitted his resignation on 9th March 2020. As a natural corollary, it is expected of the employer to reply forthwith to the employee regarding its intention for the employee to serve the notice period (either one month or three months, as the case may be) and return the company's properties, etc., before being relieved from services. It is immaterial that the employer paid the salary to the employee for March and April 2020. This employee resumed work on 18th May 2020, continued until 31st May 2020, worked until 1st June 2020, and then discontinued from 2nd June 2020.
In the above circumstances, it is advised as follows:
Please issue a letter to the employee relieving him from services with immediate effect and settle his terminal (Full and final) dues. If necessary, recover the pro-rata salary for the period of his absence (i.e., notice period days minus days of absence) computable from the date of resignation. In the relieving letter, mention the recovery of his terminal dues such as leave salary, pro-rata bonus, if any, and other admissible pay, if any, as per the terms of employment/contract. However, take caution that such recovery of the amount should not be done from gratuity (if he were to be eligible for gratuity) as gratuity cannot be attached by any court of law.
It is not a worthwhile/productive exercise to proceed with a domestic/departmental enquiry for the employee's unauthorized absence as the employee has decided to bid goodbye for one reason or another.
The threat of the employee to take his case to the Labor Court appears to be a hollow threat in order to get his full and final settlement.
Please relieve such an undesirable employee by settling his F & F dues without further delay.
Please advise your concerned Manager to proceed with the settlement of the employee's F & F dues.
Senprithvib6 P. Senthilkumar 9884009193
From India, Chennai
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In the above circumstances, it is advised as follows:
Please issue a letter to the employee relieving him from services with immediate effect and settle his terminal (Full and final) dues. If necessary, recover the pro-rata salary for the period of his absence (i.e., notice period days minus days of absence) computable from the date of resignation. In the relieving letter, mention the recovery of his terminal dues such as leave salary, pro-rata bonus, if any, and other admissible pay, if any, as per the terms of employment/contract. However, take caution that such recovery of the amount should not be done from gratuity (if he were to be eligible for gratuity) as gratuity cannot be attached by any court of law.
It is not a worthwhile/productive exercise to proceed with a domestic/departmental enquiry for the employee's unauthorized absence as the employee has decided to bid goodbye for one reason or another.
The threat of the employee to take his case to the Labor Court appears to be a hollow threat in order to get his full and final settlement.
Please relieve such an undesirable employee by settling his F & F dues without further delay.
Please advise your concerned Manager to proceed with the settlement of the employee's F & F dues.
Senprithvib6 P. Senthilkumar 9884009193
From India, Chennai
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The employee did submit his resignation on 9th March 2020. As a natural corollary, it is expected of the employer to reply forthwith to the employee of its intention that the employee should serve the notice period (either one month or three months as the case may be) and return the company's properties, etc. before being relieved from services. It is immaterial that the employer paid salary to the employee for March and April 2020. This employee, having resumed work on 18th May 2020, continued until 31st May 2020. Understandably, he worked until 1st June 2020 and again discontinued from 2nd June 2020.
In the above circumstances, it is advised as below:
Please issue a letter to the employee relieving him from services with immediate effect and settle his terminal (Full and final) dues. If necessary, recover the pro rata salary for the period of his absence (i.e., notice period days minus days of absence) computable from the date of resignation. In the relieving letter, with suitable mention in the letter for recovering from his terminal dues like leave salary, pro rata bonus if any, and other admissible pay if any as per terms of employment/contract. But take caution that such recovery of the amount should not be done from gratuity (if he were to be eligible for gratuity) as gratuity cannot be attached by any court of law.
It is not a worthwhile/productive exercise to proceed with a domestic/departmental inquiry for the employee's unauthorized absence as after all the employee has decided to bid goodbye for one reason or another.
The threat of the employee to take his case to the Labor Court appears to be a hollow threat in order to get his full and final settlement.
Please get rid of such an undesirable employee by settling his F & F dues without further delay.
Please advise your Manager concerned NOT to stand in the way to settle the employee's F & F settlement.
Senprithvib6
P. Senthilkumar
9884009193
From India, Chennai
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In the above circumstances, it is advised as below:
Please issue a letter to the employee relieving him from services with immediate effect and settle his terminal (Full and final) dues. If necessary, recover the pro rata salary for the period of his absence (i.e., notice period days minus days of absence) computable from the date of resignation. In the relieving letter, with suitable mention in the letter for recovering from his terminal dues like leave salary, pro rata bonus if any, and other admissible pay if any as per terms of employment/contract. But take caution that such recovery of the amount should not be done from gratuity (if he were to be eligible for gratuity) as gratuity cannot be attached by any court of law.
It is not a worthwhile/productive exercise to proceed with a domestic/departmental inquiry for the employee's unauthorized absence as after all the employee has decided to bid goodbye for one reason or another.
The threat of the employee to take his case to the Labor Court appears to be a hollow threat in order to get his full and final settlement.
Please get rid of such an undesirable employee by settling his F & F dues without further delay.
Please advise your Manager concerned NOT to stand in the way to settle the employee's F & F settlement.
Senprithvib6
P. Senthilkumar
9884009193
From India, Chennai
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