What Action Can I Take If Employee Is Leaving Without Serving Notice Period?

I am working in a small IT Company.By designation i am technical lead and temporary handling HR department too.

One of My junior employee is leaving organization on notice of just 5 days.

We have mentioned following points in our HR Policy

• Employee has to take prior permission of the Department for applying for alternative assignments/posts. If an

employee did not obtain prior permission from the management and apply or serve his services elsewhere, he

will not be relieved, till alternate arrangements are made or till 45 Days, whichever is earlier.

• Employees who wish to resign have to give a mandatory 45 Days advance notice as per terms of the

appointment. In certain cases, the notice period may be waived at the discretion of Director in consultation with

the HR Head.

• The HR will conduct exit interviews to critically asses and analyze the reasons thereof and suggest corrective

action if needed in future.

And have mention following points in offer letter

"During the probation period, if your performance is found to be unsatisfactory or if it does not meet the

prescribed criteria, your training / employment can be terminated by the Company with one month notice or

salary thereof. On confirmation as a regular employee, you will be required to give 45 Day’s notice or

salary thereof in case you decide to leave our services. In the event of you having any incomplete assignment,

the Company will have the discretion to relieve you only at the end of the 45 Day’s notice period.

Similarly, the Company can terminate your services by giving you one month’s notice or salary thereof. The

Company may terminate your services immediately on disciplinary grounds."

I Have following questions

1. I just want to know that can i reject his resignation letter and ask him to server notice period of 45 days.

2. Can i take legal action on the basis of above document if he will not continue job with us and leave after working 5 days.

Dear Friend
With regard to first point, you need not accept the resignation of this employee if his services are required to complete unfinished tasks which were entrusted to him or else his resignation may be accepted by asking him to pay balance period of notice after serving 5days notice as was given.
If he does not agree for either to continue in the job till completion period of notice of 45 days or refuses to pay for un served notice period, you can take action against him by filing civil suit against him for recovery of salary for unserved period of notice.
Regards

Actually he is ready to pay salary of 45 days but i want that he will server notice period of 45 period.
Is it right to not accept salary of 45 days from him and ask him to server notice period.

Mr. Alok,
If he has some assignment which is pending or monetary matters are involved with his work/assignment then you have right to reject his resignation. There is some rules to be followed by the employees. If your Company suffers for his resignation then he is bound to serve 45 days notice period.
On the other side you can lookout if he have not some serious/major family problems, then the Management can consider the matter.

Hello Alok,

Any reason(s) why you don't want to relieve the employee when he is ready to pay-back the 45 days Notice period salary?

Only to fulfill the Rules OR does he have any project work/handover to be completed?

Also, look @ such situations from other angles:

1] Would retaining the employee after he/she completes the work or handover be of any help/utilization to the Organization--just to satisfy the Rules/Policies? Though this CAN'T be generalized, quite often the presence of such employees CAN be counter-productive to the environment effecting other employees.

2] Now-a-days, many Companies have enhanced the Notice period to 2 or 3 months to control attrition. W.r.t. your line "Is it right to not accept salary of 45 days from him.......", pl note that this is SURELY NOT a right-wrong issue. The one danger of giving-in to this request would be to make this a precedence for future resignations---UNLESS you make this a one-time case & change/strengthen the HR Policies to preempt any such future situations.

One straightaway change would be this [most of the Companies have this wordings].

INSTEAD OF "..........On confirmation as a regular employee, you will be required to give 45 Day’s notice or salary thereof in case you decide to leave our services" CHANGE TO ".......On confirmation as a regular employee, you will be required to give 45 Day’s notice or salary thereof in case you decide to leave our services, at the sole discretion of the Company".

Reg the options open to you, one is to take things legal. The second is to put his name in the NASSCOM Skills Register--that would be referred to other Employers before they hire this employee. Both options have their own set of Pros & Cons.

Prima-facie, this ALSO points to another possibility. When the Notice Period is clearly mentioned as 45 days in all the Docs, how did this employee take the liberty to commit to the new Company that he can join in ~5 days? Did he get that impression--that he can get away without serving any Notice Period--from the existing Company environment? Were there any earlier such resignations--who were relieved earlier as a precedence for this case?

Rgds,

TS