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Employee Tender Resignation but did not serve until Last Day

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asked on Sep 29, 2014 at 15:27
by   sjchow
I have a staff who resigned on 10 Sep. His notice period is 2 months and his target last day is 09 November. As he requested to leave earlier, we try to accommodate him by allowing him to contra using his annual leave but with terms he needs to do complete pass-down of his work to his colleague.

Out of sudden he email and inform us he is not coming to work on 28 Sep. And he access the company server and delete some of the files (Under his directory). His last email stated he will not come to work anymore and he have return all company asset.

My question is:-
- What we can do on the delete files (Legal Action)?
I am issuing a show cause letter to him and will courier to his home.

- Short Notice Period
According to my payroll there is 2 way of doing it. One is consider weekend as notice period. Second, do not consider weekend as notice period.
If we calculate in weekend, we need to pay him 2 days, if we exclude weekend, he need to pay us 2 day.

My question is, is this legal? Can we exclude the weekend if we decide to accept his request to contra using his unused leave?
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7 Answers
answered on Sep 29, 2014 at 15:52
by   jeff005
Have you paid his Sept salary..??
Has he completed his "handover of work and duties"
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answered on Sep 29, 2014 at 16:04
by   sjchow
No, our payroll is on 30th of each month. We have emergency halt his salary payout today while confirming what to do.

Secondly, he did not pass-down any work at all and just left.
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answered on Sep 29, 2014 at 16:32
by   sjchow
An additional information. This staff is high level engineer which salary is more than 10K. Thus What are we able to do on law wise? I am new in HR and we are a start up, thus we have no proper way to deal with this as this is the first time we face this issue as well. Thanks again for the help!
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answered on Sep 29, 2014 at 18:21
by   jeff005
Hold back ALL his pay, allowances, claims and ask him in writing to come home to settle issues. Revoke his access to the server, do proper admin procedures to disgrunted employee. You can sue him later.

If i were him and the company has treated me unfairly, i can do much more destructive actions.. You can take other actions later..
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answered on Sep 29, 2014 at 18:41
by   sjchow
The issue is we treated him well. Even when he say he needs to leave earlier, we try to accommodate him by giving him option to use his Annual Leave to cover the short notice. As long as he complete the pass-down of all the project in time, we are okay to release him earlier.

However, he suddenly give the notice only yesterday and inform us he will go KL this month end and not coming to work anymore. We are really shocked. Furthermore he seems to manage to delete some files from our company server. He have been missing from work (EL) frequently before the final email, so there is basically nil work been done by him.

Secondly, he inform us to deduct the short notice from his September salary (in his yesterday email), and seems he already planned all these and going to KL without any intention to serve the originally agreed 10 October 2014. Are we able to sue him for the business loss due to the project hold? And secondly, for his short notice, if we deduct annual leave to contra the short notice, are weekend included as part of the notice?

My payroll inform me there is 2 way of doing it. Either we calculate in weekend (If we decided to let him go peacefully) or we exclude the weekend (he short-notice 2 days).
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answered on Sep 29, 2014 at 20:38
by   jeff005
@sandy,

1/What is your position in your company.??

2/Your company payroll, is it computer accounting??

3/Yr engineer, got appointment letter?? When in duobt, refer to that letter..

4/Yr payroll guy is inexperience...

5/If it is written in the appt letter 2 mths notice, you dont have to pay sept salary at all. You can offset it with the lack of completion of another month in lieu of notice.

6/Did yr co gave him a written consent for "early release".?? If no, just default back to 2 months notice.

Look,

I am no lawyer, and not lawyerment staff,and laywerment do not give legal advice. This is just a forum and your issue is so simple. Just use the law of the malaysian jungle la..!! You can get a lawyer to sue for non performance, if you can prove it , at a later stage.. Why so in a hurry..?? You are not cheating your staff any monies.. Just delay any payments, there nothing labor dept or industrial court can do.. You can even give him/her a 6mths PD chq. No more banking into ac once a staff have resigned..
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answered on Oct 1, 2014 at 04:54
by   arun1011
Hi there

Broadly there are 3 issues here.

1. On the issue of deleted files, if you have evidence that he deleted the files, lodge a police report first.

2. On the issue of whether he can be sued for loss of business, this cannot be answered without having a real look at all the documents.

3. On the issue of notice, as far as my understanding goes, if it is 2 months notice, it is 2 months calendar notice and that includes weekends.
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