Absenteeism from work
hari
(Querist) 14 December 2013
This query is : Resolved
Dear Sir,
I have joined in Xyz Company where they were not issued any appointment letter for one month. Because of my personal reasons I submitted my resignation before getting the appointment letter. Then HR asked me serve 2 months notice period which is not mentioned in any paper and not disclosed properly. When I asked HR the same they said that all these rules will be mentioned in appointment letter but you are resigning before getting that letter and all these rules will apply from joining day automatically even though you are not signed any paper . From my resignation date I stopped going to office and I mention it in resignation mail as well.
But the company ID is left with me so after 15 days I send them a mail asking them that if there is any exit formalities left from side. They replied like they will get back.
After some time I joined another job where I did not show Xyz experience. After 3 months of resignation of Xyz again I got mail form them .
Total 60 days notice period shortfall due is [2 months Gross salary]
Below are my questions
is it Absenteeism from work?
Am I needed to pay that amount?
if no what I can respond ?
if yes how much I can accept to pay and what are clearances I have to demand from them ?
what about the other components like welcome kit unused, insurance ?
Could you please advise me how to proceed?
ajay sethi
(Expert) 14 December 2013
no you have not signed appointment letter . you are not bound to give 60 days notice period .
you are not bound to pay notice period money as claimed as company never issued you appointment letter .
reply to notice issued by company . return the welcome kit and policy to company
Rajendra K Goyal
(Expert) 14 December 2013
Reply the notice by refusing any liability towards notice period. Take the services of a lawyer. return Company belongings after proper acknowledgement.
Kumar Doab
(Expert) 14 December 2013
It is felt that your matter has merits and you may not hesitate to approach a competent and experienced labor consultant/service lawyer.
Keep your current employer by your side.
Since no appointment letter was issued there was no bilateral agreement signed for conditions like notice period/pay in lieu of it.
Hence it is not applicable.
The company has to pay you the wages for 1 month of employment. The employee can lodge complaint the minute wages are delayed even if by a day. The employer may get penalized By Rs.7500/ instance.
The time for FNF wages is also last day in office or within 2 days or max. by usual pay day.
Did the company provided and got forms for PF, Gratuity, ESIC, Group Insurance, Nomination signed from you, on first day or it its HR personnel continued to sleep over it as well. If yes this is a serious lapse. If company has not paid wages top you it must have defaulted on payment of PF, ESIC, Gratuity, Group Insurance, TDS too.
You may demand acceptance of resignation, service certificate, relieving letter, FNF statement, FNF wages, salary slip, PF number, ESIC card, Form 16 etc............................
A company that does not issue appointment letter containing upfront and transparent service conditions, may be violating enactments applicable to it e.g. Shops and Commercial Establishments act. Such employers are also unworthy of being employed with.The non issuance of appointment letter may get termed as unfair labor practice as clearly highlighted in Shops and Commercial Establishments Act, too.::::::::: “Failure to issue appointment letters .............................. to the employee amounts to ‘unfair labour practice’ ............................. Bharat Mudranalaya v. Workmen, Delhi Gazette, dated 7-5-1970 (IT).”
Non issuance of appointment letter, non adherence to good HR practices was also, probably a reason for you to leave this job.
If any penalty/punishment for violation needs to be levied it is upon employer himself or his personnel in HR that have defaulted and not upon the employee.
You have resigned properly by submitting resignation in writing.
You have once again displayed character and sincerity by writing to them for any exit formality etc.................however the good for nothing HT personnel must have written in reply to written resignation of the employee and guided for exit formalities if any and by referring to the exit policy (if there was any in force and supplied to employee) which these HR personnel did not. Hence there is not exit formality or policy.
Employer should not behave like street magician and produce things from thin air.
You should ask them under which right and by which rule, regulation, and policy these DAFFARS are demanding a payment from you and when the certified copy of the same was ever supplied to you. You may not find the literal meaning of daffar in dictionary and may have to ask around. If there is a better word for it, kindly substitute.
In its email extract of which has been posted by you the HR has agreed that you have submitted resignation and company has received it.
The demand of notice pay indicates that resignation was accepted.
Since after 3 months it has appraised you to return ID card etc you may do so under proper acknowledgment.
You may strongly deny the absenteeism and remind them that after resignation (received /accepted) office is not attended.
You should caution them not to post any negative, adverse, discriminatory, malicious, defaming comments against you and caution them that any attempt would be falsification of record at their cost and consequences.
You have worked with them and you alone would know that it is LAALA type establishment or a professional one. It shall be better if your reply and notice is served upon appointing authority, MD.........................by letter thru redg. post and henceforth all calls, meeting are recorded (audio/visual). The HR has erred in your case and now it is trying to save its skin by transferring the onus on you and by showing a recovery of notice pay and hence the veiled threats etc....
Since no appointment letter was ever issued to you, on service conditions including notice period/pay no such condition was ever accepted by you, and no such condition exists.
What does it mean by following statements?
“We have also learned that, you are joined another IT organization as per NASSCOM verification.”
“The account details will be shared upon your confirmation to this email.”
It appears to be a veiled threat.
The companies can not by any right attempt to track or publish the future ventures of any employee.
Have you created and registered your profile at NASSCOM?
If the company posts any adverse comments in your profile you should succeed to pull them in court of law.
NO private entity can force any employee to register with any private entity for employment other than Employment Exchange.
The IT employees unions and Trade Unions have been uniting against it.
The IT companies are covered by Shops and Commercial Establishments Act.
The notice period for service period of 1 month is NIL in Shops and Commercial Establishments Act of all states.
The standing orders may also be applicable to this establishment and if these are not certified Model Standing Orders shall apply.
Notice period during probation period as per Model Standing Orders is NIL.
The enactments applicable to the company, statues have statutory force and no private agreement signed between employer and employee e.g. appointment letter/service agreement/contract of employment/bond etc. can override/supersede the statues.............
If no appointment letter was issued (although a violation) the standing orders and enactments should be referred to.
Needless to mention if appointment letter, internal policies, service rules are in violation of standing orders, statue ..............................the statue shall prevail.
The IT employees unions have succeeded to end the blanket exemption granted by state of Karnataka and also the threat of blacklisting etc in NSR of NASSCOM, and remember united employees can achieve everything that is within the rights.
http://itnitesunion.wordpress.com/2010/06/23/in-nsr-can-a-employee-be-black-listed-i-am-asking-this-as-some-employers-have-said-this-to-employees/
Trade Unions e.g; INTUC, AITUC, CITU etc are more than willing to embrace the IT employees.
IN case of any threat or adverse action by employer or its HR, Line Managers you may not hesitate to approach the lawful authority, unions, lawyer/law firm.
IT employees unions.
http://www.itecentre.co.in/
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Your lawyer would know how to handle the matter and defend you.
It shall be appropriate if the reply is structured and fine tuned by your lawyer.
R.K Nanda
(Expert) 15 December 2013
agree with experts.
V R SHROFF
(Expert) 15 December 2013
You reply the notice & return company belongings. Deny liability
hari
(Querist) 15 December 2013
Thank you every one for your valuable inputs.
I will reply then like I am accepting to return belongings and deny liability and demand my clearance letters.
ajay sethi
(Expert) 15 December 2013
thanks for your appreciation
Kumar Doab
(Expert) 15 December 2013
Don’t write “I accept”.
Submit the I.Card etc under proper acknowledgment.
When you visit to submit:
--- make this HR person listen loud “ That you have not absconded/absented/abstained..............................
---make him understand it clear that “ he and his masters do not enjoy any rights to track or spy your future endeavors/employments................................and he should stop at once..................”
“
Thereafter write and deny absenteeism, and highlight that you resigned by resignation that is duly received/accepted by company, and claim unpaid wages and documents that have not been supplied to you and demand that these be supplied by redg. post only so as to reach you in say next................7 days.
If you leave loose ends then the HR may proceed to post comments upon your profile at NASSCOM as per his employer’s policy for him.
Put a check here and now.
If you think leaving the wages and documents may work as some trade off to prevent future action by this HR and employer then better obtain everything in writing.
It is in your interest to record this meeting (audio/visual) and keep some witness (union leader)with you.
Finally: Rest is up to you.
You may close the matter as deemed suitable at your end.
T. Kalaiselvan, Advocate
(Expert) 15 December 2013
Yes never use the word 'accept', just state that you return the items while denying the entire allegations made on you.
Rajendra K Goyal
(Expert) 16 December 2013
Deny all allegations. Return all belongings of Company under acknowledgement.
