Dear Labour and service law experts
I have some queries regarding a case of ambiguity about an employees joining or not joining in an organization. I will keep identities anonymous
Concerned company is a reputed Indian IT company (10000+ employees)
Pretext: Employee receives an offer from this company 1-2 months before joining date. Accepts the offer. Gets offers from other companies also (very common)
On the date of joining (virtual onboarding from home), company just does some document verification (aadhar, PAN, marskheets, previous company relieving letters) over a 10 min video call. No document signed by employee regarding joining acceptance.
Other joining and onboarding formalities to be completed on following day including induction, document signing, joining acceptance letter, EPF forms and other statutory forms (Form Q (appointment order as per Karntaka shops and establishment act), EPF Form 11, EPF Form 2, Gratuity form, Joining report
Employee wants to get some clarifications on this video call on the date of joining and is told he can connect with onboarding HR next day and actual joining formalities will be completed next day.
Problem / queries:
On the next day / date of induction, employee clearly discusses about his queries and dilemma with onboarding HR over call and confirms multiple times that if he wishes not to join, he can do so and his joining will not be processed and it will be marked as absent and no employment record will be there, no payroll etc. will be processed. It will be considered as not joined instead of joined and left. After clearly discussing this, employee decides not to join and sends a mail to cancel the joining. onboarding HR acknowledges the mail.
Earlier, Employee was sent a mail by the company on this day to fill mandatory statutory forms as part of onboarding process: Form Q, Joining report / Joining acceptance, EPF form 11, EPF form 2, Gratuity form. Employee doesn't signs / submits any of these forms.
Employee joins another company two days later.
Now, due to some internal errors / delays in properly closing this by the onboarding HR, company creates PF account for this employee after around 10 days of this incident. This reflects incorrectly in employee's service history.
Employee later raises this with the company and doesn't gets any proper response and everyone in the company keeps passing the blame and baton to another team. After lot of follow up company closes the PF account with again an incorrect date of exit overall showing 7-8 days of service causing an overlap of few days with other company where the employee joined. No contribution is made in the PF account. No payroll is generated.
PF account / member id once created cannot be deleted as per EPFO
Now, after multiple follow ups and escalations, company agrees to submit a joint declaration form to tbe PF office to update the date of exit to same date as date of joining. PF office rejects this after 1 month saying date of joining and date of exit cannot be same and asks employer to provide a clarification why PF account was created without joining. Employer since then is not responding at all.
Now, employee is concerned that during his current employer's background check and any future employment background check this will reflect incorrectly in service history and can cause issues.
Please share your thoughts / suggestions on how can this situation be dealt with?
Few specific queries:
1) There are mandatory statutory forms to be collected by employers as per various labour law acts, like Form Q, Joining report / acceptance, EPF form 11, EPF form 2 etc. If employee doesn't submits these documents as he/she did not join as explained above, based on this can the person complain to any authority about incorrect service history created by employer. Please share some details. What are the various authorities which can be approached? Labour officer, labour commissioner etc.? Can labour office ask employer to produce these mandatory forms related to joining signed by employee and if employer fails to produce these, can the person demand a letter of clarification from either the company or the labour officer stating that he has not joined the company and the PF account was created due to administrative error by employer? This is the main solution this person is seeking.
2) Can employer to safeguard their interest in fear of action being taken by EPFO if they accept that they created PF account by mistake without the employee joining, say that employee actually joined even in absence of any signed documents / forms by employee?
3) What is the best way to deal with this? Are there labour lawyers who take such individual cases and help negotiate with company and seek clarification letter and if it doesn't gets resolved, help take the matter to a legal forum?
4) What is the best source to search for an appropriate lawyer in this regard. Based on my limited research it seems, most labour lawyers work for employers and hardly any for employees. Not sure about this.
This can be a very serious issue for an individual throughout career if not resolved properly
Please suggest
If any labour lawyer in this forum is willing to provide initial guidance / suggestion, I can discuss further via PM or other channels with more details.
