LCI Learning
Master the Art of Contract Drafting & Corporate Legal Work with Adv Navodit Mehra. Register Now!

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

Priyanka (XYZ)     07 August 2013

Regarding employer not paying leave enchashment

Hello,

I submitted my resignation on 5th of june 2013 requesting to be releived from my service on 15th of July. Although, neither my manager nor the HR informed me abt the 2 month notice period. After some discussions, they told me that they will be able to releive me only if they find a replacement. They found a replacement in the first week of July and I trained that new person for a week covering all the topics.

Nevertheless, the HR asked me to serve until 19th of July which I did. When I enquired abt the final monetary settlement, they told me that they will be able tell that only at the end of the month. I had 14days of Earned Leave. When I eventually got details of the final settlement, I saw that they didn't pay me the 14days leave encashment. On enquiry, they told me that this has been adjusted to the reminder of notice period which is 19th July to 4th Aug.

As part of my final settlement, they paid me the salary for only 19 days in July and thats it. If they adjust the leave for days until 4th of Aug, shouldn't they pay me the salary for entire July month atleast???

Please advice.

thanks

Priyanka



 4 Replies

Kumar Doab (FIN)     07 August 2013

 

You have worked till 19th July so you shall be entitled to the wages till this date only.

 

 

Company shall encash earned leave in FNF statement/settlement and shall also adjust notice pay towards shortfall in notice period if the notice period applicable to you is 2 months and you have served only say 1.5 months.

 

 

What is this establishment: Industrial or Commercial? Company must have displayed the registration certificate near entrance on notice board.

 

What is the nature of business of this company?

 

You are in which state and HO/Redg. Office of the company is in which state?

 

Does the payment of Wages Act, Industrial Establishment Standing Orders Act/Model Standing Orders apply to it? The DLC in O/o Labor Commissioner can confirm it.

 

 

 

 

Notice period is not be informed by Line Manager/HR upon receipt of notice of resignation/resignation……………….

 

The service conditions (including notice period) is stated in Standing Orders of the company, appointment letter/contract of employment…………………………….

 

Has the company not issued any appointment letter to you? If yes what is the notice period mentioned in it?

 

 

If notice period mentioned in appointment letter is 1 month it can not be increased to 2 months later till the change in service conditions is accepted by you in writing.

 

 

If company has not issued any appointment letter to you then you may claim that there is no such condition of notice period/pay issued to you and thus accepted by you.

 

The service conditions stated in standing orders can not be negated in appointment letter. The service conditions stated in standing orders shall prevail upon appointment letter. So if notice period is stated as 1 month in standing orders, it can not be 2 months in appointment letter.

 

 

Standing orders are applicable to commercial establishments to which Payment of Wages Act applies.

If standing orders are applicable but company does not have its certified standing orders, model standing orders shall apply.

 

 

Your state might have issued the notification to this effect.

 

You may go thru:

 

https://www.lawyersclubindia.com/forum/Standing-order-mandatory-for-kerala-comm-establishments-85438.asp#.UgIP99KAqWM

 

Notice period is also stated in Shops and Establishments Act of the state………………..

 

 

You may show all of your documents to elders in the family, competent and experienced well wishers, lawyer/law firm and proceed under expert advice. 

Priyanka (XYZ)     07 August 2013

thanks Kumar for answering my question in detail.

My appointment letter says that the notice period is 30 days (i joined in Oct 2010), however the HR says that they have changed this to 60days in the past few months. I have not recieved any written communication about this. I have served 45days of notice period (June 5th to July 19th) and hence I have cleared the 30days as per the offer letter.

Even if they say it is 60days, why would they not pay me my EL encashment? Like mentioned above, I have served 45days of notice and they say that they have "adjusted" the 14 days EL to the remaining 15 days. I'm ok if they do that, but doesn't it mean that I have served 2months of notice including those 14 days? Shouldn't they pay me salary of July completely? They have paid me only until 19th July.

My organisation is a small one (with 15-20 employees) and supplies man-power to some technology companies here in Bangalore.

thanks again for you reply and please let me know how to proceed.

thanks

Priyanka

Kumar Doab (FIN)     07 August 2013

 

 

 

You have posted that:

 

-------“My organisation is a small one (with 15-20 employees) and supplies man-power to some technology companies here in Bangalore.’

 

It must have registered under Karnataka Shops and Establishments Act and registration must have been displayed near entrance/on notice board.

 

You may go thru Section: 15: Annual Leave with Wages and relate for compliance and violation, Sec:16, 18

 

Sec;39 : Notice of Dismissal; The max. notice period id 1 month.

The higher notice period is obviously for the benefit of employer.

 

 

 

---------“My appointment letter says that the notice period is 30 days (i joined in Oct 2010), however the HR says that they have changed this to 60days in the past few months.’

 

“I have not recieved any written communication about this”

 

“Even if they say it is 60days, ‘

 

Gossip and rumor can not be rules.

Service conditions can not be changed by a roadside gossip.

 

The employer must issue a communication/notice by effective mode of communication.

Employee can reject or accept.

 

As per you were neither notified nor you accepted the change in service condition pertaining to notice period.

 

Thus notice period of 60 days should not be applied.

 

 

HR is not your employer. He/she is just another employee in the company.

If he/she is entrusted the job of settling the account then he/she should do it by honest means and convince the employer.

If he/she is given unreasonable/unlawful instructions by his/her masters he/she should stand up against it, and should not get swayed to be executioner of ill willed employer.

 

At times when HR gets trapped they also run to seek legal advice.

 

https://www.lawyersclubindia.com/experts/Provident-fund-411521.asp#.UgJ0HtKAqWM

 

 

--------“they told me that they will be able to releive me only if they find a replacement. They found a replacement in the first week of July and I trained that new person for a week covering all the topics.

Nevertheless, the HR asked me to serve until 19th of July which I did.

 

You have displayed character and performed your part of the contract.

You are a good employee.

 

 

--------“why would they not pay me my EL encashment? ‘

 

Is it stated in the appointment letter that EL/annual leave can be adjusted against notice period/pay?

 

--------“doesn't it mean that I have served 2months of notice including those 14 days? ‘

NO.

 

--------“Shouldn't they pay me salary of July completely?’

NO.

 

 

You can claim that notice period is 1 month and decline to accept the FNF statement in writing terming it as incorrect.

 

Let the employer reply to you in writing.

 

 

Based on the reply in writing on record you can proceed further as deemed fit at your end.

 

 

 


Attached File : 311408323 karnataka shops and commercial establishment act.pdf, 311408323 list of labor officials in banglore.doc, 311408323 trade unions in karnataka.doc downloaded: 169 times

Priyanka (XYZ)     08 August 2013

thanks a lot again. I will write to them regarding the 30-day notice period.

.......Is it stated in the appointment letter that EL/annual leave can be adjusted against notice period/pay?

>> No. this is not stated in my offer letter.

 

thanks


Leave a reply

Your are not logged in . Please login to post replies

Click here to Login / Register