I was working with a startup firm based out of Pune - the IT subsidiary of a large MNC Conglomerate operating out of Doha, Qatar. Quite recently the HR had issued an amendment regarding notice period to the Employment Contract across the board. This read as follows:
“Subject to successful completion of the Probation, your employment under this Agreement shall be deemed to have commenced on the date thereof and shall continue for unlimited period until terminated by either you or by the Company. Post your confirmation of employment, should you wish to resign from the employment with the Company you shall be required to give 90 days of notice in writing. The Company, at its discretion, may retain your employment after the date of receipt of such notice for all or a portion of the notice period and you will be compensated pro rata for the actual number of days of employment severed during such notice period. In case of any dispute regarding fulfillment of pending obligations, the Company’s decision in this matter will be final and binding on you. Similarly if the Company wishes to terminate your employment for any reason other than summary dismissal it shall provide you 90 days’ notice in writing. The Company reserves the right to claim from you compensation for shortfall in the notice period as specified. You shall not be deemed to have been relieved of your services except upon issue of a letter by the Company to that effect.”
When I served my papers in Nov'10, I informed the management that I would like to serve-out the entire 90 days of required notice. However, I was told by the Centre Head and the HR Manager that they would like me to leave at the earliest. I eventually left on the 24th Dec'10, post which I sought the notice pay period shortfall. To this I received an email from the HR Manager which stated:
“Please be informed that your full and final settlement will be done considering your last working day as December 24, 2010 as informed you earlier during our discussion followed by an email. With reference to the notice period clause ‘The Company, at its discretion, may retain your employment after the date of receipt of such notice for all or a portion of the notice period and you will be compensated pro rata for the actual number of days employment served during such notice period’, while calculating for full and final settlement your last working day will be considered as December 24, 2010. Thank you."
Please note that this policy statement reference by the HR Manager goes against the very wordings of the policy published for all at my ex-Company. In particular, the published policy has the word “severed” which in this context would rightly point towards each party compensating the other for any shortfall in notice period. The HR Manager however has changed the wording to “served” and is using the corresponding contextual meaning to inform me that my notice pay will be till the day I served the company.
My understanding is that the spirit of any Employee-Employer contractual policy should be applicable both ways. While my ex-Employer has been applying the rule when many of my ex-colleagues wanted to leave earlier post their resignations, in my case, even though they applied discretion – they seem to believe that it is rightful for them to not pay me for the notice period shortfall owing to their applying this discretion; especially when I had informed management that I will serve-out the entire period and that in case I have my exit options organized beforehand, I will inform them and the final date maybe decided in the shortest possible horizon in such case.
Given that management discretion was applied here, I am expecting that the days severed from the notice period be adequately compensated to me. This is not only per the very wordings of the policy addendum released by HR a few months prior to my tendering my resignation, but also in line with how the IT industry works in such cases of separations.
I would like to take the legal route here and thus request your advice on the matter.
Thank you.
NB: I have documents to prove the above - emails, memos, signed-off memo (from Employee-end)
