gaurav 08 January 2015

Forced to serve 90 days notice period.

Dear All,

I am currently employed in an MNC in Noida, I recently got a another offer from different MNC.

I submitted by resignation to my existing organization on 8th of Dec 2014, When I had a word with my manager, he said he would not be able to release me before 82 days (i.e 27/02/2015).

Unfortunately, the next company said they could not wait, as their resource has already left, and the there is no one to take charge. If I could not join then in next 15 days (latest by 26th Jan, 2015), my offer stands cancelled.

I am ready to serve 45 days of notice period till 24th Jan 2015, and for rest days, I ready to buyout my notice period, however, I am still been told that they could not release me, as they don't have my replacement.

I have already served 30 days notice period, and when I again raised the concern of getting released early, I m still been told that they do not have my replacement. When I asked for the status of availability of replacement, I been told that hiring for my replacement has yet not been initiated.

I am been told that, if I did not serve my notice period in full, and leave early, despite, handing over my IT assets, I would still be considered and tagged as Absconder by my existing organization and they would not provide me with a Relieving letter / Experience Letter and would black list me, for not hiring me ever in future, across Globe.

Though, My next employer, has given me in writing that I could join them immediately, without getting relieving letter from my existing employer, as they could not wait for me to serve my notice period of 90 days.

However, I am still not comfortable in getting the tag of absconder, more over, there is variable part of my CTC, which I am suppose to get some time in April 2015, as per my performance ratings for the calender year (2014) with my existing employer.

As per the company rule, any employee, who has served the company till 31st Dec, deserves to get that variable component of his package, based on his performance rating.

I have already raised the concern of getting relieved ealry with my Line HR, but they said the discretion to release me early, lies in the hand of my Manager, who is not ready to release me.

Kindly suggest, Can I leave, after serving notice period of 45 days, and informing my manager, and his manager and my HR team, offering them to pay the buyout amount while full and final settlement, and handing over the IT assets issued to me.?

Can they still refuse to provide me with Relieving letter / Experience Letter and refuse to pay me the variable component of my package and tag me as Absconding.

What could I do on legal grounds, in order to get, what I deserve and not been black listed or tagged as Absconder.

Regards,

Gaurav.

Desperately waiting for your expert advice!!

Pasted below are few excepts of My offer Letter: Kindly check and suggest.

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TERMINATION

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This employment can be terminated by either side, by giving one month’s notice during the probation period or three month’s notice after confirmation or basic salary in lieu of the notice period. Prior to leaving the company, you will ensure that all your ongoing activities are successfully completed and properly handed over to the satisfaction of your manager/in charge/superior. However under no circumstances the relieving period can be less than one (1) month from the date of acceptance of your resignation.

The company may also terminate your employment without notice and without payment in lieu of notice period in the event of misconduct. Without prejudice to the generality of the scope of the term ‘misconduct’ the following events shall amount to misconduct:

a. Committing any act of indiscipline

b. Found in breach of your obligations under:



Individual Confidentiality and Access Undertaking



Code of Business Ethics and Conduct

c. Non compliance with any of the terms & Conditions of your employment or instructions / regulations issued by the company from time to time.

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1 Replies

Kumar Doab (FIN) 09 January 2015

1. What is the notice period tendered by you, and do you have copy and acknowledgment of the notice submitted by you?

What is your designation and nature of duties?

Do you have any power to appoint, terminate, sanction leave, award increments…..?

Have you registered your profile with NSR/Nasscom and shred the PIN with employer?

Have you recorded the threat of Blacklisting (audio/visual/witnesses/minutes) etc?

Is it stated in policy that the employee that has served the establishment till end of calendar year (31^st Dec) shall be paid variable pay in April (next year) only and shall not get variable pay if he/she is not in employment at the time of disbursement in April?

What is this establishment: Commercial or Industrial?

It is almost certain that due to exigencies associated with job profile of the Manager/HR personnel they may not relieve you and hence you have been verbally communicated the repercussions that you may face……………..and you seem to be willing to take a risk.

However employee should always take a calculated risk…….and avoid those that outweigh the benefits and are too risky.

The Manager/HR is not your employer and since you have not got any relief you may escalate to good offices of appointing authority, MD under proper acknowledgment…..

You should obtain in writing from next employer that it shall not terminate you in case of adverse feedback by current employer and it shall share the certified copy of BGV report with you, and it shall buy out the notice pay and variable pay without any precondition and shall pay it on the first day itself and it shall be Non refundable by you……..

If next employer agrees and current employer does not adjust it in FnF statement and reduce the amounts you may be subjected to double taxation….

2. The extract of company's clause on 'Termination' posted by you does not lay down any condition that employee can not be relieved if there is no Replacement...............................

If there is no replacement the charge has to be taken over by Manager/HOD...........................or employer himself.

You need to prove that you have affirmed in office/in person/writing to handover the charge within 45 days of notice period tendered by you..........................and NO tasks are pending at your end.....................

If you have not clear everything in subsequent communications under proper acknowledgment (mention names, dates, brief minutes of discussion…….)

45 days by all counts should be sufficient for the employer to put his house in order…………and if NO One has come forward for taking of charge from you then you are not at fault……………………however you have to build record.

The company has attempted to enlarge the scope of 'Misconduct' by referring to many of its private policies and probably endless number of clauses in it..................................thus even sneezing in office, going to Loo more than twice in a day..................... might be covered in Misconducts while it is not...............

You may download these policies to an able labor Law Consultant/Service matters lawyer in person and proceed under expert advice of your lawyer....................

It is almost certain your good for nothing personnel in Line management/HR are unwilling since they have been unable to install replacement (internal/external) within huge period of 45 days hence will not relieve you unless you serve full notice period…………………………..they may even ask you to stray beyond notice period citing say…………….unfinished tasks……………………..and if you do not oblige then may declare you absconding, thus charge you with misconduct of ‘Absconder’ and terminate…………………..and deny the relieving letter………………………and may even claim that you have not properly handed over the charge!

Is it possible that you refer some replacement to them?

3. The company might be a commercial establishment covered by Shops and Commercial Establishments Act that was enacted to govern the service conditions of employees working in such establishments……….and the standing orders (certified/model) might be applicable……….

The company may claim that you are not covered by the def. of ‘Employee’ as in Shops and Commercial Establishments Act, as ‘Workman’ as in ID Act…………………..but your lawyer may opine that you are covered….

You may go thru Uttar Pradesh Shops and Commercial Establishments Act/

U.P. Dookan aur Vanijya Adhishthan Adhiniyam, 1962

2. (6) 'employee' means a person wholly or mainly employed on wages by an employer in, or in connection with any trade, business or manufacture carried on in a shop or commercial establishment and includes—

(7) 'employer' means a person who owns, or who holds charge of, or has ultimate control over the trade, business or manufacture carried on in a shop or commercial establishment, as the case may be, and includes the manager, agent or any other person acting on behalf of the employer in the management or control of such trade, business or manufacture;

(18) 'wages' means all remuneration (whether by way of salary, allowances or otherwise) expressed in terms of money, or capable of being so expressed, which would, if the terms of employment, express or implied, were fulfilled, be payable to an employee, and includes—

(a) any bonus;

(b) any sum payable to the employee by reason of the termination of his employment; or

(c) any additional remuneration payable under the terms of his employment;

3. The provisions of the Act not to apply to certain persons, shops and commercial establishments

(2) A list of the employees referred to in clause (a) of sub-section (1) shall be displayed at a conspicuous place in the shop or commercial establishment and a copy thereof shall be sent to the Inspector concerned.

20. Termination of employment by an employee.—(1) No employee, other than an employee engaged for a specified period or in a leave vacancy, shall terminate his employment, except after notice of thirty days, or of such longer period, as may be required under the terms of his employment.

(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.

19. Discharge of employee by his employer.—(1) No employee, other than an employee engaged for a specified period or in a leave vacancy, shall be discharged from service by his employer except on the ground that—

Provided that the notice of discharge may be of a shorter period if the same is accompanied with payment of wages to the employee for the number of days the notice is short of the required period.

https://labour.up.nic.in/labourcommissioner/dookan62.htm

From the above it can be construed that the language in extract of ‘clause on Termination’ is aligned with this Act and if company can terminate by shorter period by tendering notice pay then employee by essence of ‘Equitable Discretion ‘ can also tender shorter notice period and tender notice pay………….

You may affirm in writing that notice period be adjusted in FnF statement /settlement and original FnF statement be supplied to you for verification and acceptance by you alongwith acknowledgment of notice of resignation ( notice period/effective date/last date in office should be clearly stated) , acceptance of resignation, service certificate, Relieving letter, acknowledgment of handover of company’s assets, handover of charge, Form16 as per correct FnF statement, PF number with a/c slips, ESIC card, salary slips of all months, NOC/NDC within and upto last date in office i.e. dated…………………and routine duties be assigned that can be completed on daily basis within and upto last date in office…………..and that you have on dated……………………..represented to Mr/Ms………….designation/dept……………to initiate handover of charge and complete all exit formalities within and upto dated…………. And reminded on dated……….( if your lawyer opines you may even add that condition of replacement employee is not applicable to you)………..

You may also go thru:

https://www.lawyersclubindia.com/experts/Resignation-original-certificate-516661.asp#.VK_hTsuUcqM

4. The question arises that:::::WHY EMPLOYEES SUFFER???

It is as simple that employees:::: majority of them do not unite to form unions and do not affiliate with trade unions………………

Are you aware that ‘Works Committee’ as explained in ID Act is an authority::::::and President is from employees::: and it has to have equal number of members from employees:::: and that the employees can negotiate the service conditions!!!!!!!!!!

One should participate in activities and be member of unions from the student days and be properly informed.

It shall be appropriate to show all docs on record to an able labor Law Consultant/Service matters lawyer now and proceed under the expert advice of the lawyer.