Menaka Here (NA) 09 March 2013

One sided probation period notice

Dear Experts,

My company has following sections for "Probation" and "Termination" in the offer letter.

Probation

You will be on probation for a period of six (6) months from the date of joining. The Company may in its sole discretion extend your probation period based on your performance, conduct and/or other factors as the company may deem fit. You shall continue to be on probation, till your services are confirmed by the Company in writing. During such period of probation, your services may be terminated upon one week's notice or pay in lieu thereof, by the Company, at its sole discretion, without assigning any reason. However, in case of misconduct or non-compliance of any company policies on your part, your services may be terminated forthwith without any notice.

Termination

We hope your association with us will be a very long one. However, your employment with the Company can be terminated by Ninety (90) days notice in writing from either side, or Ninety (90) days pay in lieu of notice, as may be determined by the Company. However, in the event of any discrepancy or untrue information found in your application form or resume, willful neglect of your duties, breach of trust, gross indiscipline or any other serious dereliction of duties that may be prejudicial to the interests of the Company, the Company has the discretion to terminate your services forthwith or with such notice as it deems fit and without any notice pay whatsoever.

In essence Employer saying that notice period during probation period is 1 week from employer end but 3 months from employee end at any given point of time(irrespective of probation period). Are they legally correct to have one sided notice period during probation?

The reason I am asking is, I want to quit the company as job they offered me after joining the company is entirely different from what was described. I have complained to multiple higher authorities in the company, they did acknowledge my complaints but they are doing nothing, in a way they want me to live with what ever role they offer me. Now I have only option to quit and go back to my previous employer on old salary. But 3 months notice period is something old employer is also not comfortable with. Please help me with what all options I have under the law, if I quit with one week notice. Can employer withhold my salary or experience letters stating that I didnt serve 3 months notice period, or can they send me a legal notice?

Any suggestions are highly appreciated.

Thanks!

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3 Replies

Advocate Rohit (Advocate) 09 March 2013

Dear Menaka,

The Appointment Letter which is signed by the employee and employer is a binding contract between the parties. Thus, before signing the appointment letter the parties should read the terms and conditions carefully.

Further, company does keep few clauses in their favour because they want to protect their interest and also they incurr expenses in recrutingthe employees.

You may call on the belwo number for legal consultation.

Regards,

Advocate Rohit Dalmia

9324538481

Mumbai

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Kumar Doab (FIN) 09 March 2013

You have posted that:

“Can employer withhold my salary or experience letters stating that I didnt serve 3 months notice period, or can they send me a legal notice?”

NO.

But at the same time who can stop a recalcitrant, adamant, zealous, vindictive, line management/HR from doing it.

If you are still under probation period the notice period applicable is 7 days as per language stated in your post.

It is always better to avoid abrupt termination. You may tender notice of resignation, addressed to good offices appointing authority, MD, Chairman, company secretary, citing reference of clause number…..in appointment letter dated……issued to you, and mention notice period being tendered by you and thus your effective date of resignation, last day in office. You may mention all escalations made by you and thus reason of separation.

You may request the good offices:

- to assign you work which can be completed up to and within your last day in office,

-ensure that exit formalities are completed

-to inform you in writing to whom you should handover the charge/company property and designated employee may supply you the acknowledgment on the pot.

-to supply you the acknowledgment of notice of resignation immediately, its acceptance and final acceptance of resignation, correct FNF statement, payment of FNF dues by bank DD, form 16 as per correct FNF statement, attested copies of PF forms( submit the forms. Transfer of PF is better.), work experience/service certificate, relieving letter, etc…by the close of office hours on your last day in office

The service conditions are stated in and governed by Certified Standing orders of the company, appointment letter……

If standing orders are applicable to the company but are not certified model standing orders shall apply.

The service conditions stated in standing orders will prevail, and can not be negated in appointment letter.

Model Standing Orders;

13. (2) Termination of employment: (No Notice period applicable to probationer.)

(3) Where the employment of any workmen is terminated, the wages earned by him and other dues, if any, shall be paid before the expiry of the second working day from the day on which his employment is terminated.

16. Certificate on termination of service.--Every permanent workman shall be entitled to a service certificate at the time of his dismissal, discharge or retirement from service.

NOTE. - There is a provision under this Act for issuing a service certificate at the time of dismissal, discharge or retirement and every person is entitled to take such certificate.

Liability of 17[employer].—

18. Exhibition of standing orders

The notice period is expressed in SE Act, also. If your company is commercial establishment under SE Act, you may refer to SE Act applicable to your state.

Attached File : 288560908 model%20standing%20orders.doc downloaded: 226 times

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Menaka Here (NA) 10 March 2013

Thanks a lot Mr Kumar, appreciate your detailed reply.

Thanks to Mr Rohit too, if needed I will give a call for legal consultation.