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Delecta   17 August 2017

Employer forcing buyout in lieu of notice period

This case is of my sister written as below .

I  joined this company on 5th January 2015 as an Associate. It is Recruitment agency and an Indian subsidiary with the head office in Hong Kong. My reporting manager was the Director, company who also heads the India Office. The total no of employees in this office is less than 10, to indicate the size of the organization I was working with. 

After working for over two years, I resigned from the company on 27th July 2017 post securing a new job opportunity. My contract stipulate that I need to serve one months’ notice period or one month salary in lieu of not willing to serving the notice. 

As per the contract, I resigned and mentioned my willingness to serve the notice period which is clearly stated in my Resignation email . There was a phone call where my boss asked me to take 2 months’ salary as a buyout from my new employer, when there was only 1 month notice period needed as per my contract. Upon being refused by my new employer for any buyout possibility, I informed the same to him. My Boss replied to the resignation mail, still being persistent and asking me to buyout the notice period from my new employer. My new employer, however, refused to buy out the notice period and was willing to wait for me to join after serving the 1 month notice period, which was originally my request as well, as per the contract. My boss however relieved me immediately of my duties and kept demanding that my new employer offer a buy out of the one notice period. His tone of persistence and arrogance is very clear in the emails as was in his phone call to me.  He also clearly mentions that he cannot go back on his decision, as he has committed the same to his seniors in the Hong Kong office. He has done so even after I refused for the buyout option and again displaying my willingness to serve the notice. I was denied the right of serving the notice period.

All my emails and request to serve notice period was falling on deaf ears in India, so I escalated matter to the HR, on 28th July  explaining her the situation and hoping for some fair response.My boss calls me the same day with lot of anguish expressing his fury over my escalation of this matter to the HR in Hong Kong. The phone call was a testimony to a lot of things that are unprofessional and no employer – employee relation would be justified by the things I was asked to prove and my competency in my job during the tenure with the company was questioned. I was asked to show a proof that I went for the interview on non-working day. No employer has a right to ask that, however I still succumbed to this unprofessional request and sent him the proof that I indeed gave this interview on a Saturday. He accused me of lying for the days I had taken sick leave (half day) to give the interview. Kindly note at this point I still had my unused leaves for this and last year. Fortunately, I was anticipating a phone call of this nature from Mr. Menon and I recorded the call to prove the above thing, in case I need to take a legal action against this.

On 2nd August My boss and the company HR,  forced the full and final settlement  on me where there was deduction of my one Month Salary including GST , To which I immediately replied asking for the explanation regarding the deduction .There were a few email exchanges where they completely overlooked my willing ness to serve the notice period.

Kindly note at this point, I was already handed by Full and Final settlement, returned the company mobile phone. I was an ex- employee by this time. I left for a holiday out of the city with the understanding that my employment is terminated with this compant

When I demanded the reason for the unfair notice pay out and informed them about me taking legal action against this, to my amazement, my boss instructs the HR to ask me join back in a one liner email. There is a tone of supremacy and arrogance in the email exchanges. He showed no hesitance to go back on his own words in the official email where he has mentioned “We have relieved you effective today. I can't go back on this now.”

The HR who sits in Hong Kong refused to acknowledge my willing ness to serve the notice siding with my boss and when I demanded the reason for the deduction of my salary they realized they had no legitimate reason for such action, and they casually ask an ex- employee to join.

My boss and the company have harassed me mentally and have extorted my hard earned salary in exchange of notice buy out ; reason for which they have no legitimate standing as I have clearly mentioned my willing ness to serve the notice period. They are now unresponsive and have not stated any reason for the deduction of my salary against notice period.

I wish take action against the company and especially my boss cindicating the bullying, extortion of my salary on false grounds and mental harassment throughout this process.

Please guide me , what should I do best to get the justice and my one month salary they deducted with GST and teach them a lesson that the world doe snot work as per their convinience.

 

Thanks and regards

 



Learning

 21 Replies

Kumar Doab (FIN)     17 August 2017

The current employer can not even ask levae apart force the outgoing employee to ask nexr employer to buy out notice period.

The boss wanted to become Hero and has stepped on your toes.

Now how do you want to handle the matter: Legally?

Delecta   18 August 2017

Thanks Kumar for your reply . Yes, I just want the one month salary and GST deducted in lieu of notice period pay cut . I wouldn't mind approaching labour commissioner office if that's the non legal way . But if going legal is the only solution , we are prepared for it. Few lawyers told me that we can send the notice . My only worry is the lawyer fees should not be much to justify the action for a months salary .

Kumar Doab (FIN)     18 August 2017

You seem to have already communicated the non acceptance of FnF  showing adjustment of notice pay.

You seem to have writen communication of relieving with immediate effect?

Do you have copy of FnF statement, written acceptance of notice of resigantion before expiry of notice period?

 

Kumar Doab (FIN)     18 August 2017

While posting such queries employee should post basic information!

What is this establishment; Commercial, Industrial?

What is its nature of business say; IT, ITeS?

How many persons are employed in it?

What is your designation and nature of duties?

How many persons report to you?

Do you have any power to sanction leave/increment/appoint/terminate/appraise etc etc ?

You are in which state? Since how many months you are working? Are you under probation period or your service is confirmed in writing?

 

Do standing orders (model/certified) apply to establishment and your designation? ( Apparently NO)

What is notice period as per appointment letter/offer letter and what was notice period tendered by you? ( Noted;30days)

Was ever any stinker, memo, show cause notice on any misconduct issued to you?

Does the establishment have its appraisal system? Do you have copy of signed appraisal forms, matrix, KRA’s, performance date? How was your performance?

Are you a member of employee’s/trade unions?

Has the establishment issued/supplied, offer letter, appointment letter, salary slips of all months, PF number and a/c slips of all years, ESIC card, correct FnF statement, Form 16 as per correct FnF statement, acknowledgment and acceptance of notice of resignation/final resignation, acknowledgment of handover of charge, NOC/NDC……………?

 

Delecta   18 August 2017

Yes I have copies of all the communication of the statement mentioned above . Can you guide how to go about this ?

Kumar Doab (FIN)     18 August 2017

Has the establishment asked you to join back and serve notice period now, in writing?

Has it already installed your replcaement?

Who is Manager, Representative of employer, employer as per Shops & Estbslishment registration of the establishment?

Usually the certificate is displayed near entrance, on notice board!

 

 

Kumar Doab (FIN)     18 August 2017

I shall do my best.

Pls post reply pointwise to all points.

Kumar Doab (FIN)     18 August 2017

What is the logic of asking for 2 months buy out from next employer, while notice period is 30 days?

Has your salary of July also been withheld?

Pls clarify what is your perception on deamand of 2 months buy out from next employer?

Delecta   18 August 2017

Yes the manager has asked me to join back now after exit in writing

Kumar Doab (FIN)     18 August 2017

Your interest and claim of unpaid wages, notice pay etc seems to be good.

Kumar Doab (FIN)     18 August 2017

How is your rapport, goodwill, terms with next employer and its officials in Line Mangement, HR,personnel etc ?

 

Would they support you if this Hero ( Director) adventures ( rather Misadventure as per your posts) and tries to commit transgression and step on your toes?

The only misadveture this Hero may commit; apparently is to delay your FnF and/or trouble for BGV/reference check if next employer wants it.

 

Do you want to rejoin and serve ntoice period?

Pls post your reponse pointwise to all points...

Kumar Doab (FIN)     18 August 2017

You seem to have handled the matter, with your skills, properly and built some irrefutable written record.

For which I appreciate you.

I shall post for heartfelt impressions on both:legal, Non legal recourses.

Respond to all points. 

 

Delecta   18 August 2017

Ok . A new twist . A friend asked me to approach labour commissioner office before going legal . I went there today with my Dad with the complaints letter in detail and supporting documents . They took my complaint in and will issue a letter with summon date for both the parties . They will send the complaint copy to the organisation and me . The boss has to be present for this summon date. It will act as a good shocker to him as he didn't think in wildest of his dreams that he will need to face consequences for his action . Do you know what happens in such process ?

Kumar Doab (FIN)     18 August 2017

Originally posted by : Delecta
Ok . A new twist . A friend asked me to approach labour commissioner office before going legal . I went there today with my Dad with the complaints letter in detail and supporting documents . They took my complaint in and will issue a letter with summon date for both the parties . They will send the complaint copy to the organisation and me . The boss has to be present for this summon date. It will act as a good shocker to him as he didn't think in wildest of his dreams that he will need to face consequences for his action . Do you know what happens in such process ?

You have already acted.

You may post reply pointwise to all points.


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