Please help ! my company forcing me to serve full notice period !
Parul
(Querist) 19 May 2014
This query is : Resolved
Dear All,
I am currently employed with a Bangalore based third party organization, working on client side (MNC) in Greater Noida.
I am working in IT operations as an Application Support Executive and I am the only girl in my whole team. The work environment is not so good here and few senior team members behaves very rudely with me.
So, I decided to move on from here and luckily I have been selected in some other organization.
The issue now is that my official notice period is 2 months but the new organization has given my joining date of 1 month.
So, I have given resignation in my current company for 1 month and I am ready to buy out/pay for rest of 1 month.
Below is the snippet of section of "Services and Termination" in my offer letter:
"YOUR SERVICES CAN BE TERMINATED BY EITHER PARTY BY GIVING TO THE OTHER, A NOTICE OF TWO MONTHS IN WRITING. THE COMPANY HOWEVER, RESERVES ITS RIGHT TO TERMINATE YOUR EMPLOYMENT BY GIVING YOU SALARY OF TWOM MONTHS IN LIEU OF NOTICE. THE COMPANY RESERVES ITS RECOVER AN AMOUNT EQUIVALENT TO TWO MONTH'S SALARY ON PRO-RATA BASIS IF YOU FAIL TO GIVE TO THE COMPANY, ADEQUATE NOTICE OF YOUR ATTENTION TO TERMINATE YOUR EMPLOYMENT."
But the HR is refusing to relieve me in one month, as they need a resignation acceptance mail from my client side reporting manager, and their reply on my resignation mail is as follows:
"As discussed, we cannot relieve you on short Notice.
Your have been appointed and placed at an important position at the Client’s Project end, which needs proper Notice for Knowledge transfer.
Also, Notice Period Buyout acceptance is completely dependent on Employer’s discretion.
These things get considered by Employer only in few extreme situations and after due diligence of Floor Operations only.".
QUESTION: Is it really the case that I cannot leave my current organization before my notice period even if I am ready to pay for 1 month ?
Please advise me how to proceed as I need the relieving letter from current company.
Regards
Parul Gupta
Guest
(Expert) 19 May 2014
If you have already given notice for one month and ready to buy out the balance period of notice, you cannot be compelled to serve for two months. You may reply to the company that your resignation be treated as effective with effect from ........ (date) treating the said date as final day of your service after completion of your notice and for the period short of notice period the company may either deduct from your full & final settlement or intimate how much you should pay to the company on prorata basis, as per terms & conditions relating to termination of service as contained in your appointment/offer letter.
Rajendra K Goyal
(Expert) 19 May 2014
Agree with the advise of expert PS Dhingra ji.
Kumar Doab
(Expert) 19 May 2014
>>> First of all you should take your next employer in confidence otherwise you may land in trouble at the hands of both current and future employer.
YOU may (preferably in writing) point out to next employer that during interview you has informed that notice period inserted in appointment letter issued to you by current employer is 2 months (and you need joining time of 2 months) and in offer letter issued to you by M/s…………………is 1 month only.
The current employer is unwilling to notice period of 1 month and may not issue acknowledgment, acceptance of notice and resignation and may not issue service certificate, relieving letter ( and may even post adverse comments…………….) and you can not supply these until these are supplied to you by current employer.
And conclude that you should be absorbed without need of any such document from your end and on the strength of copy of resignation, POD only.
The current employer and future employer both may have a published policy, or practice to allow joining time of 1 month to incoming employees and 2 month’s exit time to outgoing employees to suit its self centered interest.
Such policy and practice is detrimental to the employability, interest of employee(s).
.
>>> The language in notice period/pay clause is clear and notice pay in lieu of shortfall in notice period is applicable.
The interpretation of HR as posted by you is in not in sync with written extract posted by you and is arbitrary, contradictory to bilateral agreement that employer has drafted and signed with you……………………………and violates it.
The contract of employment should promote equitable discretion or it can be easily be termed arbitrary.
The employer can terminate by tendering notice pay in lieu of notice period without seeking discretion/acceptance from employee and employee has to seek discretion from employer??? Why so!
Resignation can be without permission and notice.
HR is not your employer. He/she is just another employee in the company.
Hence you may escalate to good offices of appointing authority, MD etc………..and seek relief. Highlight your contributions, achievements, awards, rewards, appreciations and conclude that you have always been sincere, loyal, trustworthy and no stinker has been ever been issued to you.
You may highlight that you have firmed up your next venture as per the spirit and essence of clause number………………..in appointment letter dated……………………issued to you and you have displayed character and sincerity by tendering long notice period of 1 month that is more than sufficient as per posting and tasks given to you.
AND YOU HAVE NOT EFFECTED ABRUPT TERMINATION.
You may affirm that notice pay be adjusted in FnF statement and it may be supplied to you well in time for verification and acceptance so that all docs and FnF wages are paid to you by the close of office hours on last date in office i..e dated…………………..
Probably the HR (even employer) is not able to recruit, designate replacement and failed to put a succession plan in place and hence is cooking stories.
Industry captains that have put succession plan in place are not wary of attrition.
They are not arm chair managers and reporting authority, HOD, even employer himself is willing to take charge.
Build sufficient written record (with a copy to you) to suit your long term interest.
>> If you can recommend (in writing) your replacement……………………….and affirm that KT shall take…………………….days only and to whom you should handover the charge within and up to last date in office as per notice of resignation tendered by you?
Remain amiable and try to separate at a good note.
>>> The concurrence of manager of client should be internal process as per the agreements signed by your employer with his client and your employer has to complete it without transferring any onus on you.
Your employer may designate anyone as your replacement and ask for KT.
1 month should be sufficient for your employer to put his house in order and perform KT.
>>> IT/ITeS companies are covered by various enactments e.g. Shops and Commercial Establishments Act. This enactment was enacted to govern the service conditions of employees working in Shops and Commercial Establishments.
Since you were located at Noida by your employer at an office of his choice (be it client or anyone else) the Uttar Pradesh Shops and Commercial Establishments Act (coined as U.P. Dookan aur Vanijya Adhisthan Adhiniyam, 1962) shall be applicable.
Sec: 20. Termination of employment by an employee.—
(2) Where an employee fails to comply with the provisions of sub-section (1), his unpaid wages for a period not exceeding fifteen days may be forfeited to his employer.
>>> AS per Supreme Court of India judgments the notice period/effective date of resignation tendered by employee can not be preponed or postponed. The clauses in extarct posted by you contradict it and may not stand.
The standing orders might be applicable to your establishment and your labor consultant/service lawyer may opine that you are covered as ‘Workman’ as in ID Act, ’Employee’ as in Shops and Commercial Establishments Act and that you can raise a dispute now.
If standing orders are applicable but are not certified Model Standing Orders shall apply and as per it the notice period applicable during probation period is NIL and after confirmation 1 month.
YOU may go thru: Sec:13-18.
The standing orders shall prevail upon any private agreement that employer has signed with employee e.g. appointment letter/contract of employment.
There are many threads on similar queries that you may find relevant e.g;
http://www.lawyersclubindia.com/forum/Notice-period-102337.asp#.U3iSoEeBmXU
http://www.lawyersclubindia.com/forum/Request-an-answer-around-my-rights-during-notice-period-102506.asp#.U3o21keBmXV
>>> Submit repeated reminders and ensure that no charge on any count is levied on you and HR/employer does not succeed to title you as absconding/abstaining/absenting.
.
>>> This is the time to apply your rapport, goodwill, persuasion, persistence, reasoning, negotiation skills and resolve the matter in your favor.
Try and separate at a good note and defend your interest too.
Parul
(Querist) 20 May 2014
Dear All,
First of all, thanks a lot for guiding me and giving me some confidence.
I have talked to my HR but today again he is not willing to listen my request.
I have replied on mail too with all the points mentioned by you all but no reply till now.
I am a bit worried that I will serve 1 month notice and even then also they will not give me my relieving/experience letter :(.
Please help what should be my next step.
My notice period of 1 month will end on Junt 13th and my joining in new company is June 17th.
Regards
Parul
Devajyoti Barman
(Expert) 21 May 2014
I would advise you to serve the notice period anyway.
Since joining date is much later than expiry of notice period, you should do this.'At least your case would be much stronger.
