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Subham Bhowmick (NIL)     05 April 2014

Not accepted offer yet received unauthorized absense mail

Dear Members,

Please help me out with this recent problem that I am facing.

My sister had been selected by an IT MNC however they did not give any Offer Letter to her. She went to office for a couple of days expecting the Offer Letter. But they created the bank account and emp ID without giving the offer letter saying there is a minor delay. However, the following day upon receiving the Offer Letter my she returned it and informed her Manager and HR that she did not agree to the terms and conditions offered and henceforth didnt join back. 

Now the company has mailed an Unauthorised Absence notice. Please tell me how to tackle this as she has not even signed on the Offer Letter. The HR even went to the extent of suggesting that they had her signature in the attendance register and hence the Offer Letter is meaningless.

PLease help...



Learning

 10 Replies

V. VASUDEVAN (LEGAL COUNSEL)     05 April 2014

There has to be offer and a written acceptance by the employee. Creation of employee ID, bank account and signing attendance etc., of a candidate in anticipation of an offer letter does not create any obligation on her part unless she has accepted the offer letter in writing. Write a simple letter setting out this position and that since she has declined the offer there is no employer employee relationship. 

Also she should warn the HR such an unsolicited correspondence citing absence of a person who had declined the offer would tantamount to mental harassment and she can file a complaint before the women's commission to protect her rights.

Sudhir Kumar, Advocate (Advocate)     06 April 2014

she has joined the company. 

Subham Bhowmick (NIL)     06 April 2014

@Sudhir Kumar: Could not understand your reply.  Kindly explain Sir.

Subham Bhowmick (NIL)     06 April 2014

@Sudhir Kumar: Could not understand your reply.  Kindly explain Sir.

Sudhir Kumar, Advocate (Advocate)     06 April 2014

she has joined service.  acceptance of terms of service are implied by conduct and employee-employer relationship has commenced. Thereafter she is absent without leave. Action of company is  justified.

Sanjay Malik (Manager- Legal & Compliance )     07 April 2014

Agreed with the view of Sudhir Kumar, sometime employee working more than 10/15 years with an employer without any offer letter. working and attending office is itself implied that the employee has accepted the terms and condition of employment by his conduct. conduct establish employee-employer relationship. and company is justified to show her absconding.

V. VASUDEVAN (LEGAL COUNSEL)     07 April 2014

I have to differ with the views of Shri  Sudhir Kumar in this specific case before hand -  Implied acceptance comes into play only when the terms and conditions of the employment are made known to the employee and yet the employee (in this case the prospective candidate) continues to work. In this specific instance

the query is about a prospective candidate who has attended office and signed the attendance in good faith and in anticipation of the offer - which was never made. Hence there is no question of employee employer relationship!

Sudhir Kumar, Advocate (Advocate)     07 April 2014

the employee has gone blind and joined organisation, had emp ID, had salary account etc.  So she has joined the company.

Kumar Doab (FIN)     07 April 2014

Shops and Commercial Establishments Act of many states clearly provide for issuance of appointment letter.

 

In your case it is failure of HR to process and arrange for appointment letter describing service conditions in time.

 

In order to defend their skin now they are looking for a scapegoat.

 

The process of recruitment involves many steps.

 

The candidate has to go thru round of interviews and after selection is confirmed and offer is made usually by offer letter. The offer letter may be valid for a limited period and may explain that detailed T&C/service conditions shall be provided in appointment letter.

 

The Employer should handover the detailed appointment letter, HR policy/service rules and regulations referred to/stated in appointment letter before joining/absorption.

 

The employee has the absolute discretion to accept or reject the service conditions and can negotiate.

 

If T&C/service conditions are supplied afterwards then these are to be examined by the employee before acceptance and if employee does not accept these the employer has the discretion to either amend these amicably after discussion or cancel the appointment also.

 

What was the response of HR/employer himself when you declined to accept the T&C?

 

In this case of case of declinature by employee did the employer/Its HR personnel state that they shall not amend, negotiate to amend but shall cancel the appointment and appointment letter?

 

If yes you have been terminated and you may hold employer liable for notice pay, harassment t etc as per your experience.

 

Looking into the conduct of HR/Employer in your case, you should reject to accept tantrums of HR/employer himself and place on record the facts and claim wages for the days worked and any other claim that you may have.

 

You must vehemently deny the charge of abscondment and caution the HR/employer not to record in its internal records or to comments to any one else that you are absconder.

 

Absconder is a derogatory word you can find the literal meaning in dictionary.

 

If you are not able to handle the mater on your own you can approach your lawyer and your lawyer would know how to settle the matter.

 

You can also approach IT/ITeS employees unions, IT women employees union, Trade unions that are more than willing to embrace IT employees…………………………..lawful authorities, court of law e.g;

 

 https://www.itecentre.co.in/

https://ithiworld.wikispaces.com/News+Update

IT/BPO Voice of India | Facebook

UNITES Professionals

www.unitespro.org

https://www.wbitsa.org/

www.itpfindia.org/

https://itnitesunion.wordpress.com/author/itnitesunion/

 

 

Shiv Mahiti Ani Tantradyan Sena(Shiv IT SENA)

mankar.janardan@gmail.com


https://www.shivsena.org

 

 

 

https://www.amrc.org.hk/node/1088         CBPOP

https://www.freepatentsonline.com/article/Indian-Journal-Industrial-Relations/185430721.html

https://bpo.knowledgehills.com/Directory/BPO-Jobs/CBPOP-Centre-for-BPO-Professionals.aspx

 

 

https://www.dnaindia.com/mumbai/report-shiv-sena-forms-first-union-in-information-technology-sector-1465435

 

 

-Inspector under Shops and Commercial Establishments Act; 

 

 

-o/o Labor commissioner

 

 

Defend your right.  

V. VASUDEVAN (LEGAL COUNSEL)     08 April 2014

The prospective candidate (employer - employee relationship never arise on half-brewed presumption and in this case the employer followed a blind process by creation of employee id, attendance, etc., without completion of the preliminary requirement offer and acceptance. The prospective candidate ought to have been blind-folder by the organization's process and attended office in utmost good faith. An act of good faith can't be equate with a blind process since every one has to follow lot of things in good faith in their walks of life.

Vasudevan


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