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RSH (NA)     02 February 2010

Agreement of Service

 Hello Experts!

I have rather simple but bit complicated query in relation Breach of Agreement of Service.

I will try to as brief as possible, so kindly let me know if you need more information. 

Here are the facts in points:

Joining / Agreement date - April 17, 2008

Period - 5 years. April 17, 2013

Summary - Employer agreed to open a new division under his existing company to accomodate me as an head of the division and amis to provide News Analytics services to his existing clients (his companies' clients).

Employer's nature of business is to provide industry news updates which is NOT the aim of New Division where I have been hired as a Division Head. 

Terms / Condition - I can leave the said company any time by giving 3 months notice period. and can not do the similar business or associate / open similar firm for 1 year.

After 6 months we mutually agreed on to close the service which we aimed to provide to clients we did not gain profits as we expected. This communication happend on EMAIL where we both agreed to stop the service and close the new company's bank account and my balance dues were paid (Everything is in writtena s email communication, with me).

There is NO Communication or relationship from either side for past 6 months.

After 7 months - I open my new proprietorship firm which has does not which does not deals in Ex Employer's kind of business.

But I recieved a Legal Demand Notice where he argues that you have not given 3 months notice period and you are still under the agreement / bond.

What can do here?, Please guide.

Thanks In Advance!

RSH

 

 



Learning

 10 Replies

V. VASUDEVAN (LEGAL COUNSEL)     03 February 2010

 According to your brief, the contract stands terminated by the contents of the e-mail exchanged. Accordingly you may respond stating that the contract stood terminated on ......date (quote email correspondence) and hence the question of any breach of any agreement does not arise.

1 Like

Amardeep Srivastava (Senior Law Officer)     04 February 2010

I understand that your employer had opened a new division under the existing "company". Your employer was the "company". Later the "company" decided to close its "service" at the new division. If the communications relied upon by you deal with the closing of the service only It may not be treated as termination the contract of service. It needs to be seen whether those email communications can establish that you were discharged from the service or not.

RSH (NA)     04 February 2010

Right Amardeep, they said, "we are closing the bank account as well, and there is no binding on you further".

This was replied in my request to them after we agreed to close services from new division, they also paid me due share of profit as final cheque. Since then there is no communication and no transaction from either side. they also refer me as analytics professional who used to work with them sometime back. S

o dont you think that they accept that i am no longer working with them and they dont have any issue if i indulge in other work activity. I am not on their payroll for last 7 months so how can they say i am their employee?

 

Amardeep Srivastava (Senior Law Officer)     05 February 2010

I believe that the demand notice issued to you would be to compensate for the notice period. Could you tell whether your communication had coveyed a desire to be relieved from the service after waiver of the notice period? If so, was the reply quoted by you in response to that request?

RSH (NA)     05 February 2010

 Hi Amardeep,

Here's a part of communication with EMPLOYER, where I requested to pay due payments to me after we WE AGREED TO SHUT DOWN ANY PRODUCT/SERVICE/OFFER from new division and bank account as well. 

---------------

Fine EMPLOYER

No issues, we can settle the payments later but other formalities (I don't think there is anything except closing analytics bank account) should be done before you leave for USA. As I can't be bound to NURC for 2 months. 

FROM EMPLOYEE

XXX 

 

Reply from EMPLOYER

 Dear XXX 

I hv checked with the Bank and your presence is not required for closing the CRA division account. We will do it in due course. So there are no bindings for you henceforth.

Best regards,

EMPLOYER

Amardeep Srivastava (Senior Law Officer)     05 February 2010

Dear RSH,

I don't think what is mentioned in the communication above can establish that you had expressed an intention to leave and the employer has waived your notice period. In this situation you can be asked to pay for the notice period. Not being on pay roll would not help.

 

RSH (NA)     05 February 2010

Fine Amardeep. Consider this as well!

After few months of accounts settlement I have been referred to 3rd party, as their ex employee (In written, i have email) when third party asked about the services we used to offer.

From 3rd party

Hi XXX,

 

As you would find in the trail mail, we, ABC, are a training company and are interested in XYZ SERVICE (preferably monthly) for our organization.

 

EMPLOYER has given your reference. Kindly do let us know if you can help us in any way.

-------------

From EMPLOYER TO 3rd PARTY upon enquiring about work we used to offer months back.

Hi 3rd PARTY

I suggest you speak to XXX. He was earlier involved with our Analytics venture. His phone number is: 123456789

You can give him my reference.

 Best regards,

 EMPLOYER



Amardeep Srivastava (Senior Law Officer)     05 February 2010

Dear RSH,

This communication only shows that you are no more working with that employer. It does not indicate that you had complied with the conditions relating to termination of the contract i.e. notice period.

RSH (NA)     05 February 2010

Right Amardeep.

It shows that I am no more working with them and without pay for 7 months and they never about me.

I wonder what it means, please explain me what all this means?

Best

RSH

RSH (NA)     05 February 2010

 Should I wait till agreement period is over? which means 60 months without pay!

 


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