Good Morning!!
I am confused by Mr. Dinesh's reply a bit.
First of all, Vikram was not clear whether he has replied resignation letter by the emlployee concerned? Whether he accepted it or not, is not known.
Dinesh, is it not possible for an emplyee to resign at all? Should he always abide by what his employer says? Is it not natural justice that he should take care of his welfare too?
Why there cannot be discussion of the notice period at all? that too when it is 3 months, which for me looks too long in any organisation. Unless otherwise the organisation initiates discussion on these counts, how can they conduct domestic enquiry and how this is for natural justice?
I do agree that 10 days notice is too less, but the employee has offered for notice pay. Any employeer cannot keep quite on this first and then cry foul!
I am not able to put together the mistakes form the employee, in this case!! (ofcouse, i am trying to understand it only form the posts in this website)
From India, Bangalore
9I am confused by Mr. Dinesh's reply a bit.
First of all, Vikram was not clear whether he has replied resignation letter by the emlployee concerned? Whether he accepted it or not, is not known.
Dinesh, is it not possible for an emplyee to resign at all? Should he always abide by what his employer says? Is it not natural justice that he should take care of his welfare too?
Why there cannot be discussion of the notice period at all? that too when it is 3 months, which for me looks too long in any organisation. Unless otherwise the organisation initiates discussion on these counts, how can they conduct domestic enquiry and how this is for natural justice?
I do agree that 10 days notice is too less, but the employee has offered for notice pay. Any employeer cannot keep quite on this first and then cry foul!
I am not able to put together the mistakes form the employee, in this case!! (ofcouse, i am trying to understand it only form the posts in this website)
From India, Bangalore
Dear Dinesh Divekar,
I am also not law graduate but written my comments with experience. Resignation and termination are two difference aspects. If an employee is charged, no doubt, then enquiry is must whether employee is on probation. But termination after enquiry is challengeable in the court of law and it becomes very difficult to prove before court that the enquiry was fair, proper and principles of natural justice were followed and full opportunity was granted to the delinquent to defend himself. Moreover, employee is need to be kept under suspension and pay him suspension/subsistence allowance without performing any duty. During enquiry, delinquent always use tactics to delay the enquiry and there may remain some faults in the enquiry to gain at later stage. Domestic enquiry is not just a formality but is a quasi-judicious system. I also have faced that if enquiry is vitiated, all subsequent action of the management fails and employee comes back with all back wages.
For the above problems, managements always prefer resignation of the delinquent unless serious charges so require.
I may add that termination even after enquiry is challengeable whereas resignation is not challenged.
I hope you will not mind my openess but I tried to share my experience.
Thanks n regards
V K Gupta
9466814775
From India, Panipat
I am also not law graduate but written my comments with experience. Resignation and termination are two difference aspects. If an employee is charged, no doubt, then enquiry is must whether employee is on probation. But termination after enquiry is challengeable in the court of law and it becomes very difficult to prove before court that the enquiry was fair, proper and principles of natural justice were followed and full opportunity was granted to the delinquent to defend himself. Moreover, employee is need to be kept under suspension and pay him suspension/subsistence allowance without performing any duty. During enquiry, delinquent always use tactics to delay the enquiry and there may remain some faults in the enquiry to gain at later stage. Domestic enquiry is not just a formality but is a quasi-judicious system. I also have faced that if enquiry is vitiated, all subsequent action of the management fails and employee comes back with all back wages.
For the above problems, managements always prefer resignation of the delinquent unless serious charges so require.
I may add that termination even after enquiry is challengeable whereas resignation is not challenged.
I hope you will not mind my openess but I tried to share my experience.
Thanks n regards
V K Gupta
9466814775
From India, Panipat
Dear Mr Divakar Shetty and Mr VK Gupta,
In my past post I have written in the very first sentence that resignation and abandonment of duties need not be clubbed together. Let employee separation happen as per the policy. However, if the resigned employee just abandons the duties then that is misconduct. It merits investigation by conducting domestic enquiry and then taking appropriate action as deemed fit.
Any termination without conducting the enquiry is bad in taste as per the law. Yes, practically it is difficult. During my HR days, I also did not conduct enquiry in all the cases. But then finally it was big risk.
Benefit of enquiry is that it generates documentary evidence. People may come and go but material evidence remains with you. There is attrition in HR department also. Who will remember what happened in the past? With proper documents handling any cases becomes easier.
Thanks,
Dinesh V Divekar
From India, Bangalore
In my past post I have written in the very first sentence that resignation and abandonment of duties need not be clubbed together. Let employee separation happen as per the policy. However, if the resigned employee just abandons the duties then that is misconduct. It merits investigation by conducting domestic enquiry and then taking appropriate action as deemed fit.
Any termination without conducting the enquiry is bad in taste as per the law. Yes, practically it is difficult. During my HR days, I also did not conduct enquiry in all the cases. But then finally it was big risk.
Benefit of enquiry is that it generates documentary evidence. People may come and go but material evidence remains with you. There is attrition in HR department also. Who will remember what happened in the past? With proper documents handling any cases becomes easier.
Thanks,
Dinesh V Divekar
From India, Bangalore
Firstly, we do not know if the 3 month's notice period is justified as the tenure of service of the resigning employee is not mentioned.
Secondly, we do not know if the company accepted the resignation or raised its objection to the 10 day's short notice or if the company did not react to the resignation letter.
So as per my understanding -
Case A - You accepted resignation:
If you accepted the resignation by the employee which stated he would be serving a notice period of 10 days, there is now no way that you can deny it and conduct enquiry against the resigned employee...
Case B - You objected to the clause of 10 day's short notice
If you have anything in written reply to the clause, great. The way you proceeded is fair....
The person however mentioned he's resigning for a personal reason. Did you try to figure out the personal reason?
You mentioned that you sent him 2 show cause notices and he replied to both of them (and in the next post you asked (Cite Contribution) if you can issue another notice by ignoring his replies and assuming he never did - is lawfully wrong)
What were your notice to him and what did he reply to them?
Case C - You didn't act on his resignation/
I think again here you are at fault. If a person has handed over his resignation and has stated he would be serving a notice period of 10 days, why didn't you react to it?
Again let me tell you he just didn't remain absent after the completion of notice period as was mentioned in his resignation letter, he came thereafter for 4 more days.
On 14th day he messaged / mailed / informed you that he can't continue any further and will not come next day onwards to duty and is willing to have a notice period buy out.
So he's not at 100% fault as he's mentioned that he would unable to continue any further.
What is his designation?
Why do you require him to stick around and complete the whole notice period when he's done all handover or if there's nothing to handover?
I agree to the fact that rules are rules.... But there's no point forcing someone to work for stipulated amount of time when the person is not interested.
Even if he agrees to by force or whatever, you may have him physically present at your office but he may not be able to contribute as he's being forced into the service....
As an HR one needs to realize what will be in the benefit of the company.... The company will have to pay 2months' pay to the person only for his physical presence even if he's practically not contributing much.... Don't you think that's a loss???
Don't over focus on the terms of employment, Don't micro manage, Have a broader look, Broaden and Widen your frame of consideration.
From India, Mumbai
Secondly, we do not know if the company accepted the resignation or raised its objection to the 10 day's short notice or if the company did not react to the resignation letter.
So as per my understanding -
Case A - You accepted resignation:
If you accepted the resignation by the employee which stated he would be serving a notice period of 10 days, there is now no way that you can deny it and conduct enquiry against the resigned employee...
Case B - You objected to the clause of 10 day's short notice
If you have anything in written reply to the clause, great. The way you proceeded is fair....
The person however mentioned he's resigning for a personal reason. Did you try to figure out the personal reason?
You mentioned that you sent him 2 show cause notices and he replied to both of them (and in the next post you asked (Cite Contribution) if you can issue another notice by ignoring his replies and assuming he never did - is lawfully wrong)
What were your notice to him and what did he reply to them?
Case C - You didn't act on his resignation/
I think again here you are at fault. If a person has handed over his resignation and has stated he would be serving a notice period of 10 days, why didn't you react to it?
Again let me tell you he just didn't remain absent after the completion of notice period as was mentioned in his resignation letter, he came thereafter for 4 more days.
On 14th day he messaged / mailed / informed you that he can't continue any further and will not come next day onwards to duty and is willing to have a notice period buy out.
So he's not at 100% fault as he's mentioned that he would unable to continue any further.
What is his designation?
Why do you require him to stick around and complete the whole notice period when he's done all handover or if there's nothing to handover?
I agree to the fact that rules are rules.... But there's no point forcing someone to work for stipulated amount of time when the person is not interested.
Even if he agrees to by force or whatever, you may have him physically present at your office but he may not be able to contribute as he's being forced into the service....
As an HR one needs to realize what will be in the benefit of the company.... The company will have to pay 2months' pay to the person only for his physical presence even if he's practically not contributing much.... Don't you think that's a loss???
Don't over focus on the terms of employment, Don't micro manage, Have a broader look, Broaden and Widen your frame of consideration.
From India, Mumbai
Few points to add when an employee resigns.
1. Immediate discussion with employee and his reporting manager is required for retaining the employee
2. Respond to the employee in a day or two on confirming his relieving date basis the discussion held
3. Take acceptance from the employee and reporting manager on the relieving date
4. Intimate the employee on the terms of Employment separation that was signed by him in the appointment letter
5. Initiate the clearance process before 2 or 3 days of his relieving
If the above set of processes are adhered by the HR, then such situations can be handled extremely well with the laid down policy and procedures of the company.
Regards
Bipin Acharya
From India, Hyderabad
1. Immediate discussion with employee and his reporting manager is required for retaining the employee
2. Respond to the employee in a day or two on confirming his relieving date basis the discussion held
3. Take acceptance from the employee and reporting manager on the relieving date
4. Intimate the employee on the terms of Employment separation that was signed by him in the appointment letter
5. Initiate the clearance process before 2 or 3 days of his relieving
If the above set of processes are adhered by the HR, then such situations can be handled extremely well with the laid down policy and procedures of the company.
Regards
Bipin Acharya
From India, Hyderabad
Dear All,
I may further clarify that on receipt of resignation, it is our duty to inform the employee that his resignation is accepted and he will be relieved on such & such date.
Once, the resignation is accepted, employee cannot withdraw his resignation. However, before acceptance, he has right to withdraw his resignation.
In my opinion, resignation is amicable solution for separation whereas termination is forced solution for separation. Amicable solution is always better because courts also suggests compromise.
Thus, first our duty becomes to decide the fate of the resignation and thereafter all other actions are required.
V K Gupta
From India, Panipat
I may further clarify that on receipt of resignation, it is our duty to inform the employee that his resignation is accepted and he will be relieved on such & such date.
Once, the resignation is accepted, employee cannot withdraw his resignation. However, before acceptance, he has right to withdraw his resignation.
In my opinion, resignation is amicable solution for separation whereas termination is forced solution for separation. Amicable solution is always better because courts also suggests compromise.
Thus, first our duty becomes to decide the fate of the resignation and thereafter all other actions are required.
V K Gupta
From India, Panipat
you can terminate ; resigning is fine but the employee has to serve notice period. ready to buy back notice period is not an answer. buy back of notice period is optional and company may or may not accept it.
regards
Prashanth
From India, Hyderabad
regards
Prashanth
From India, Hyderabad
Dear Prashant,
Please understand one thing that if one will try to follow the rules on very strict basis (esp when you're dealing with human) all you'd get is a bunch of employees who are not motivated to work but just come to workplace to mark their presence and get their pay....
Increasingly we need to realise that as an HR of the firm, the responsibility lies on the shoulders of HR to project the message to the entire team that -
We are here to listen to you, understand your problems and try to get them solved in a fairer manner.
In this case, the person gave resignation stating his last working day would be so and so and he wants to avail the facility of notice buy out....
If it didn't suit the company's policy, it would have been fairer if the HR communicated to the person within 2-3 days of the submission of resignation... There's no point in communicating this when he's so demoralized that he can't breathe in your premises....
As an HR I believe one needs to introspect the situation in a fairer manner and take into consideration both - the employee's as well as management's perspective and then take fairer decision.... Don't impose things, rather discuss and communicate possibilities... Don't misuse power, rather empower the employees.... The organization would otherwise collapse very badly...
Just a piece of suggestion and a food for thought.... Nothing personal... Hope it has not hurt anyone's sentiment... Apologies if it did hurt...
From India, Mumbai
Please understand one thing that if one will try to follow the rules on very strict basis (esp when you're dealing with human) all you'd get is a bunch of employees who are not motivated to work but just come to workplace to mark their presence and get their pay....
Increasingly we need to realise that as an HR of the firm, the responsibility lies on the shoulders of HR to project the message to the entire team that -
We are here to listen to you, understand your problems and try to get them solved in a fairer manner.
In this case, the person gave resignation stating his last working day would be so and so and he wants to avail the facility of notice buy out....
If it didn't suit the company's policy, it would have been fairer if the HR communicated to the person within 2-3 days of the submission of resignation... There's no point in communicating this when he's so demoralized that he can't breathe in your premises....
As an HR I believe one needs to introspect the situation in a fairer manner and take into consideration both - the employee's as well as management's perspective and then take fairer decision.... Don't impose things, rather discuss and communicate possibilities... Don't misuse power, rather empower the employees.... The organization would otherwise collapse very badly...
Just a piece of suggestion and a food for thought.... Nothing personal... Hope it has not hurt anyone's sentiment... Apologies if it did hurt...
From India, Mumbai
Hello All,
I believe termination is too harsh a course of action for this issue.What example you are trying to set?That you must serve your notice period? When there is clear communication from employee how can you force action on him?
From India, Mumbai
I believe termination is too harsh a course of action for this issue.What example you are trying to set?That you must serve your notice period? When there is clear communication from employee how can you force action on him?
From India, Mumbai
Dear Vikram,
Before checking the legal validity of your employee's actions, the basic question to be asked here is, "does your company really require him for the entire 3 months?" If the answer is YES, then finding options to retain him for the entire period on the grounds of KT, Project Budgeting (billing), Business Criticality etc etc makes sense and holds some value.
If you want to resolve this on legal grounds, your employee too will have points (I assume he must have done all this after taking legal or expert opinion --> responding to show-cause notices and communicating claerly during his resignation and later) in favor of him. This will eventually go nowhere.
In this case, I guess, the employee doesn't hold any value WRT Project as well as KT, other-wise his resignation would have been rejected on the grounds of last working day; hence, personally I suggest to go away with it with an open and lenient way. As the employee is ready to pay for his pending notice period, it is a win-win situation to both parties. Rather than holding an unproductive employee (not blaming the emloyee here, but it is the human nature during notice period) it is good release him. The more you are adamant and tough. the more he will react and spoil the atmosphere inside the Organization, be it directly or through his associates. Being lenient here will definitely help stopping the spoil-show and negative propaganda inside the Organization.
Regards,
Kishore
From India, Hyderabad
Before checking the legal validity of your employee's actions, the basic question to be asked here is, "does your company really require him for the entire 3 months?" If the answer is YES, then finding options to retain him for the entire period on the grounds of KT, Project Budgeting (billing), Business Criticality etc etc makes sense and holds some value.
If you want to resolve this on legal grounds, your employee too will have points (I assume he must have done all this after taking legal or expert opinion --> responding to show-cause notices and communicating claerly during his resignation and later) in favor of him. This will eventually go nowhere.
In this case, I guess, the employee doesn't hold any value WRT Project as well as KT, other-wise his resignation would have been rejected on the grounds of last working day; hence, personally I suggest to go away with it with an open and lenient way. As the employee is ready to pay for his pending notice period, it is a win-win situation to both parties. Rather than holding an unproductive employee (not blaming the emloyee here, but it is the human nature during notice period) it is good release him. The more you are adamant and tough. the more he will react and spoil the atmosphere inside the Organization, be it directly or through his associates. Being lenient here will definitely help stopping the spoil-show and negative propaganda inside the Organization.
Regards,
Kishore
From India, Hyderabad
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