Unfair Treatment During Leave: Absconding Accusation for Work Email
1 month ago
I had requested a leave of absence for five days to travel, which was approved by my manager via email. Prior to commencing my holiday on Friday, I had a discussion with my manager and informed them of my plans. On Friday evening, I departed on a flight and was unable to respond to messages upon arrival in a new country due to a delayed internet connection. However, upon regaining connectivity, I promptly messaged my manager to provide updates on my project’s progress. Despite being on leave, I remained engaged in work-related communication.
On Monday, attempts were made to contact me again, but I was unavailable as I was still on holiday. Then on Tuesday, I received an email accusing me of ‘absconding’ from work, stating that attempts to reach me via Slack and WhatsApp had been unsuccessful. However, I contest this accusation as I had promptly responded upon regaining internet access. It appears there may be a misunderstanding regarding my availability during leave.
Regarding the issue of contract terms, while there is no specific mention of working hours in my appointment letter, the termination clause states that termination may occur if there are reasonable grounds to believe I have engaged in misconduct, negligence, breached the contract fundamentally, or caused losses to the company.
Furthermore, my salary for the previous month has been withheld. Given these circumstances, I seek clarification on the next steps to be taken. Should I consider resigning without notice, or could there be potential legal repercussions? I possess evidence of the approval of my leave.
A.Dear Sir
Please approach the following authority or similar authority in a state
The Office Commissioner of Labour
Karmika Bhavan, Dairy Circle,
Bannerghatta Road, Bangalore-29.
Section 12 in The Industrial Disputes Act, 1947
12. Duties of conciliation officers.- (relevant section 12(2) of ID Act)
(1) Where any industrial dispute exists or is apprehended, the conciliation officer may, or where the dispute relates to a public utility service and a notice under section 22 has been given, shall hold conciliation proceedings in the prescribed manner.
(2) The conciliation officer shall, for the purpose of bringing about a settlement of the dispute, without delay, investigate the dispute and all matters affecting the merits and the right settlement thereof and may do all such things as he thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute.
(3) If a settlement of the dispute or of any of the matters in dispute is arrived at in the course of the conciliation proceedings the conciliationofficer shall send a report thereof to the appropriate Government 1 or an officer authorised in this behalf by the appropriate Government] together with a memorandum of the settlement signed by the parties to the dispute.
(4) If no such settlement is arrived at, the conciliation officer shall, as soon as practicable after the close of the investigation, send to the appropriate Government a full report setting forth the steps taken by him for ascertaining the facts and circumstances relating to the dispute and for bringing about a settlement thereof, together with a full statement of such facts and circumstances, and the reasons on account of which, in his opinion, a settlement could not be arrived at.
(5) If, on a consideration of the report referred to in sub- section (4), the appropriate Government is satisfied that there is a case for reference to a Board, 2 Labour Court, Tribunal or National Tribunal,] it may make such reference. Where the appropriate Government does not make such a reference it shall record and communicate to the parties concerned its reasons therefor.
(6) A report under this section shall be submitted within fourteen days of the commencement of the conciliation proceedings or within such shorter period as may be fixed by the appropriate Government: 3 Provided that, 4 subject to the approval of the conciliation officer,] the time for the submission of the report may be extended by such period as may be agreed upon in writing by all the parties to the dispute.]
An approved leave should not be considered as abscondence or misconduct on the part of an employee, and it should not lead to punitive action by the employer. It appears to be a case of victimization with potential ulterior motives to harm the employee's service career. Resigning without adhering to the terms of employment, such as serving the notice period, could result in consequences for breaching the contract.
In situations where an employee is forced to resign, which amounts to illegal retrenchment or termination, the employee can fight against the injustice rather than opting for a pressured resignation. Proving that the resignation was coerced can lead to an order for reinstatement with back wages by the adjudication authority or Labour Court. Section 25F of the Industrial Disputes Act outlines conditions that employers must fulfill before retrenching an employee.
These conditions include providing one month's written notice or wages in lieu of notice, paying compensation equivalent to fifteen days' average pay for each completed year of continuous service, and serving notice to the appropriate government. Simple termination based on the employment contract can be problematic if challenged by the employee before an Industrial Tribunal or Labour Court.
To address the arbitrary and unethical actions of the employer, it is recommended to serve a legal notice citing relevant laws. If the employee is not in a managerial position but is considered a workman under the Industrial Disputes Act, filing a complaint with the State Labour Commissioner and submitting an application under section 33C(2) of the Industrial Disputes Act before the Labour Court can be pursued. If the employee holds a managerial or administrative position, filing a civil suit before the Civil Court is advised for seeking appropriate relief.
A permitted or approved leave neither be termed as absconded nor misconduct on the part of an employee and does not attract any punitive action from the employer. So, it prima facie appears to be a clear case of victimization of an employee with ulterior motives to injure his service career. A resignation without complying with the terms of employment i.e, service of notice period may liable you to face consequences for breach of terms of contract. So, a resignation under pressure or compulsion is not a wise solution to protest the arbitrary and illegal action of the management, instead, you have to fight back against the injustice caused to you for no fault on your part. An employee who is being forced to tender a resignation that amounted to illegal retrenchment/termination, if you can prove the allegation with substantial evidence. Once you succeed in proving your resignation as retrenchment, the adjudication authority/Labour Court may pass an order for reinstatement in service even with back wages. Section 25F of the ID Act mandates that the employer shall fulfill certain conditions before retrenching any employee. It states that no workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until- (a) the workman has been given one month’s notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice, (b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days’ average pay for every completed year of continuous service or any part thereof in excess of six months; and (c) notice in the prescribed manner is served on the appropriate Government. The condition given under section 25F(c) requires the employer to give notice to the appropriate government in addition to the other two conditions. Hence, a simple termination as per the contract of employment can prove disastrous in the event the termination is challenged by the employee before the Industrial Tribunal or Labour Court. So, in the prevailing situation, you need to serve a legal notice protesting the arbitrary and unethical action of the employer citing the above proposition of relevant law and if you are not holding the position of Manager/Supervisor but a workman as defined u/s.2(s) of the Industrial Dispute Act then for such an arbitrary and illegal termination in violation of mandatory provisions of I D Act, reach out to the office of the State Labour Commissioner concerned for filing a complaint against the employer for redressal of your grievance and simultaneously file an application u/s.33C(2) of the I D Act before the concerned Labour Court claiming dues receivable to an employee on resignation and even on illegal termination/treanchment. In case you are holding the position of Manager/Administrative Officer in the Company, you have to file a civil suit before the Civil Court for appropriate relief.
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