Dilbag (Analyst) 20 November 2013
Hello Friends,
Can a Company force an Employee to serve full Notice period?
As per my Appointment letter if you fail to provide 3 months notice period than you shall be required to pay to the company your three months salary in lieu thereof.
I am ready to serve one month Notice period and for shortfall I am ready to give waive off amount.
So can they force me to serve full notice period?
Thanks & Regards
Sophie Andres (Student) 21 November 2013
Under the ordinary course you should be allowed to leave with a month's notice and payment of 2 months salary. But, in case the company insists on the payment of 3 months salary, which seems to be the condition stipulated in the appointment letter, you can seek expert advice from the lawyer chosen as per your desired specifications at www.lawkonect.com Also, since your case would actually be determined by the exact wording of your appointment letter, it would be prudent that you contact the above mentioned service providers to know your exact position on this and take action accordingly.
Dilbag (Analyst) 21 November 2013
Dear Sophie Thanks,
But can they force me to serve full notice period?
Even when I am ready to serve for one month and pay for rest of two months..
The Words are exactly the same written above.
Kumar Doab (FIN) 25 November 2013
>> If the tasks of the employee that has initiated resignation are unfinished due to which employer may suffer financial or some other loss and the employee is unwilling to indemnify the employer then the employer may impress upon the employee to serve full notice period.
Another view point is that if employer has inserted notice pay in lieu of notice period then it should be the max. liquidated damages that the employer may claim from employee.
One more view point is that 1 month should be sufficient for the employer to put his house in order. The employer can designate replacement or an employee to take charge e.g. reporting authority, HOD etc...........and when a replacement is installed the charge can be handed over to the replacement of the outgoing employee.
It is imp. that the employee must take his next employer into confidence and there should be an agreement that in case the current employers resorts to tactics the employment with next employer should not suffer.
It is in interest of the employee to mention joining time of 3 months in job application and request the prospective employer to allow joining time of 3 months, as if there is a dispute employer can be in trouble at the hands of both current and future employer.
The employee should defend his interest in the best possible manner.
>> The notice period is part of service conditions and is stated in standing orders applicable to the company and extended to designation of employee, appointment letter, statue ...................................................................and is also stated in Shops and Commercial Establishments Act of the state applicable to the establishment if the establishment is commercial.
>> You may carefully structure your notice of resignation and subsequent communications, address these to good offices of appointing authority, MD and submit under proper acknowledgment.
You may also carefully structure your communications with next employer and defend your interest and mention that you have pointed out during interview that notice period of resignation is 3 months with current employer and the current employer is unwilling to accept shortfall in notice period and may not issue acceptance of resignation, FNF statement, relieving letter, service certificate and you can provide copy of resignation and POD only and company should agree to absorb you on the strength of these documents only.
You may affirm that as per clause number ................in appointment letter dated..............................issued to you the notice period of resignation is................................months and you are tendering notice period of...........................month and for the shortfall of ..............months the notice pay be adjusted in FNF statement and correct FNF statement be supplied to you for verification and acceptance and if any FNF amounts are payable at your end you affirm to tender the same by cheque the acknowledgment of which be issued to you on the spot, and that you affirm to handover the charge and company property (if any) and good offices may inform you the details of designated employee to whom the charge/ company property is to be handed over and designated employee be instructed to provide proper acknowledgment on the spot.
{ If the notice pay is adjusted in FNF statement and FNF amounts are reduced by notice pay then you shall get Form16 also as per FNF statement and next employer is buying out the notice period then you shall not be subjected to double taxation.
Since you shall be loosing 2 months pay it shall be good if you can negotiate buy out of notice period with next employer.)
And that no task/assignment is pending at your end and routine duties be issued to you that can be completed on daily basis and within and up to expiry of notice period and last day in office i.e. dated.........................
You may download the record and data to establish that no tasks/assignments is pending at your end and no loss (financial or other) due to uncompleted assignment is claimed and proved by employer.
You may mention that as per current responsibilities assigned to you and since no tasks is pending at your end you can handover the charge in say......................2 days and support the replacement for next 28 days of your notice period.
>> It shall certainly be appropriate that without wasting any time you may show the job advertisement, job application, interview call letter, selection letter, offer letter, appointment letter, standing orders applicable to the company and extended to your designation, service rules, service codes and regulations, HR policy, exit/severance/FNF policy and any other communication that you may have, to a lawyer specializing in labor/service matters and proceed under the expert advice of your lawyer. The lawyer that has seen all of your docs and has analyzed your inputs in person can advice you the best.
The employee should have enough on record to establish that the employer has taken action beyond its jurisdiction.
Your lawyer that has seen all of your docs and has analyzed your inputs can help you to understand the nuances of the matter and merits of your case.
You may find many threads on similar queries as relevant and useful e.g;
https://www.lawyersclubindia.com/forum/Notice-period-nad-absconding-employee-92345.asp#.UpMpStIW1MA
https://www.lawyersclubindia.com/forum/One-sided-notice-period-92171.asp#.UoiondKAqWM
https://www.lawyersclubindia.com/forum/Notice-period-92146.asp#.UoTD33CAqWM
This should help you to fine tune your representations as suitable to you.
© 2024 LAWyersclubindia.com. Let us grow stronger by mutual exchange of knowledge.
