Any Lawyers Here? Need Legal Advice!

Discussion in 'General Discussions' started by SGBV, Sep 25, 2022.

  1. SGBV

    SGBV IL Hall of Fame

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    I need some legal advice before taking this matter to a law firm.

    My brother runs a private company, where he has several staff members working in different profiles. One of them was a Bangladeshi, who worked as a consultant for a while.

    He left the country a few months back. One of the staff member made an administrative mistake and payed 20000 USD in addition to what he was supposed to be receiving in the final tranche. It was a huge loss to the firm, but they did not discover the mistake until the recent audit.

    The company reached out to the ex consultant through his personal e-mail twice, but no response.
    His FB and linked in profile shows he is out of Bangladesh, and on a roving job in Africa (travelling to different countries). His mobile number is not available.
    Not sure whether his home address is correct or not.

    We know the employer has the right to sue the ex-employee, even though this was clearly the mistake of the employer. This isn't fraud or crime. But I understand the company can take actions under civil law on the clauses of unjust enrichment. But, how is that possible if his whereabout is unclear?

    They were late to identify the error, and possibly the ex-consultant wasn't aware of this overpayment as he works for many multi-national companies and receives payments. Perhaps he doesn't have access to his Bangladesh bank anymore - Not sure, as my SL bank froze my account for inactivity for a year.

    Some times back, one of my ex-employer overpaid me, but I reached out to them after a while before they traced this down. But in this case, if the employee isn't corporative, what are the chances to recover the money????

    Has such matters happen frequently in India or US? if it is for a large company it will be OK to write off the amount, against charging the ex employee owing to the hassle and expenses of approaching a law firm.
    But for smaller firm, this is a huge money.

    What do you think guys?
     
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  2. MalStrom

    MalStrom IL Hall of Fame

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    Your brother should get legal advice, since it involves different jurisdictions. In general the employer would have the right to get the money back but this situation is more complicated since it is a ex-employee and in a different country.
    A lawyer can tell him the options and also whether it would make financial sense to pursue the case given the legal fees involved.
     
  3. SGBV

    SGBV IL Hall of Fame

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    Yes, he is getting one. Different lawyers say different advises in this regard, and hence he is looking for advice from us - from the different experiences before deciding with one lawyer
     
  4. 1Sandhya

    1Sandhya Platinum IL'ite

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    @SGBV
    I’m not a lawyer nor do I know one. That said the following observations occurred to me when I read your post.

    1. I don’t think spending even more money hiring a lawyer to go after this employee is the best use of funds for your brother.
    2. It took some time for them to discover the error. That suggests to me the amount is not as crucial as is being portrayed. Yes it’s bad the money was incorrectly given but what is the spirit in which this is being pursued? Is it a ‘how dare he get away with it, I won’t allow such a thing!’ Or is it something else?
    3. I honestly think your brother has other, bigger problems he needs to tackle first. What about the employee who made the mistake? What about the payment processes? He needs to fire that guy or demand an accounting of how such a major mistake was made and overhaul future payment processes so there is oversight. Maybe your brother should personally sign off on all the checks from now on?
    4. A full audit of the startup account books is a must. What else funny business has this erring staff employee been upto? What other monies have been paid out and to whom? Maybe this incident is just the tip of the iceberg? Is your brother trusting him too much? How was the mistake made? He needs to focus his time and energy on checking all this and making sure all his employees are honest and trustworthy.

    As for the $20k I would not try to involve lawyers. The firm made the mistake. I personally don’t think you have legal standing. The employee can easily claim he thought it was a severance bonus. If you send lawyer notice etc he may get defensive? He may lawyer up in turn and drag the matter. Plus your bro is spending even more money hiring a lawyer and litigating this issue. Max you can do, according to me, is contact the guy personally, politely explain the mixup and ask him to return the money. If he does great. If not there is very little you can do legally as you have no hold on this person. Anyway this was my opinion.
     
    Last edited: Sep 27, 2022
  5. SGBV

    SGBV IL Hall of Fame

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    Thanks @1Sandhya

    Let me respond to the queries first.

    Me neither. But, he doesn't want to simply write off the money as it is considerably a big amount.

    Yes, it was a payroll error.
    The consultant continued to receive his monthly payment even after leaving the company several months ago.
    We understood that he has left his country to work in a different country. Possibly, he wasn't aware of the monthly deposit into his local bank.
    Not really... The relationship between that consultant and the company was pretty smooth during his 2 years stay in Sri Lanka. It was clearly the company's mistake. But legal action is thought as the last resort when nothing else is doable to recover the payment.
    He has addressed the payroll issue. The staff member who did this mistake was identified.

    The periodic company audit did help them identify this major issue and some other minor issues in the company.
    I am not sure. The law says employer can legally recover the overpayment. But as far as I understand it is easy if the staff member is still attached to the office or at least residing in the same country. Here it is much complicated.

    Well, the contract doesn't say anything about this. But yes, it was our mistake and he can claim anything for keeping that money.
     
  6. Laks09

    Laks09 Moderator Staff Member IL Hall of Fame

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    The law wouldn’t apply to a foreign bank account of a foreign national. The Bangla bank is not bound by Sri Lankan laws. The legal route is most probably to have a lawyer in Dhaka coordinating with your SL lawyer. Plus, who knows what the laws of overpayment in that country are? Even if they have such a law, would it hold good for a foreign entity who made the payment? It isn’t straight forward and most likely will cost a lot.

    I personally think the diplomatic route of talking to him and sorting this out is better. A good compromise will be to try and get back at least half the money.
     
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  7. SGBV

    SGBV IL Hall of Fame

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    Yes, this is what we are hearing from the lawyers in Sri Lanka, though we are yet to be committed with one firm.
    We are trying to find him through linked in & FB as he seems to be active in them in the past. But unfortunately, he isn't reachable via these accounts, and not sure whether it is anyway connected to the overpayment or not.

    Regardless of this, we hope to recover at least part of the funds, if not full.
     
    Laks09 likes this.
  8. 1Sandhya

    1Sandhya Platinum IL'ite

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    Thanks for replying. I don’t have much else to add to what Laks suggested.

    I still feel suspicious about the erring employee who made the mistake. Unless he is your brother or you (ie a person whose motives are above suspicion) I don’t know how you have given him a clean chit so easily.
    Now it seems like the 20k was not a lump sum but the sum of his monthly salary he received post departure? Hmm.

    I would still check that employee (email phone and records) to rule out that he was in cahoots with this other person. They could be sharing the monies. He could be misleading you by putting all the blame on the departed employee. It’s possible and it fits all the facts of the case as you have laid it out.

    It seems the person who made the mistake is some highly trusted person. Trust can become a problem. People can misuse it and later fraud is revealed. Heard of many cases like that.
    Wish you good luck with locating the person and getting your money back!
     
    Last edited: Sep 29, 2022
  9. SGBV

    SGBV IL Hall of Fame

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    Dear @1Sandhya

    It was purely a mistake, as it is a family owned business with family members involved. The staff member made a genuine mistake, and my brother being the manager failed to identify this until the recent audit.
    The consultant from Bangladesh did not have many interaction with the Admin/HR staff who was working in the office, where as the consultant was working in the construction site. So, we do not think there was any foul play for the moment.
    However, we continue to investigate thoroughly and question the staff member's capacity to run this company's admin/HR matters.

    We tried to reach out the consultant via Linked in, and located his whereabout & present employer (Out of Bangladesh). But not sure whether it is appropriate to reach out to his present employer to find his present contact number. Please note: This person isn't reachable via his personal e-mails/TP
     
    1Sandhya likes this.
  10. Laks09

    Laks09 Moderator Staff Member IL Hall of Fame

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    If you do that whatever little chance you have at diplomacy will be lost unfortunately. It’s a catch-22 situation for sure!
     

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