Resigned but employer is not supportive
sandy
(Querist) 26 January 2015
This query is : Resolved
I am working with one of the leading health insurance company and I have resigned from my job on 15 jan 15, My notice period is 45 days or 45 days salary, so i opted for 17 days working and other salary return option as per left days. But now my company is not relieving me and saying they will not provide relieving/experience letter to me and take legal action against me if i abscond.
As per my appointment letter the note is "your employment will be subjected to termination at any time by giving 45 days notice in writing by either side or by payment of 45 days salary in lieu of notice, provided that in case of the notice of termination is given by you, it shall be company's discretion to decide whether you need to work out full period of notice or whether your services shall be terminated at some earlier date determined by company.
Please Guide
Kumar Doab
(Expert) 26 January 2015
1. You have mentioned your designation as ‘Dy.Manager’. Designation alone does not decide the person shall be covered as ‘Employee’ as in ( Name of the state) Shops and Commercial Establishments Act, ‘Workman’ as in ID Act………..
There are many threads on it and currently following thread is in progress at:
http://www.lawyersclubindia.com/forum/details.asp?mod_id=115819#.VMY1d9KUcqN
2. Such companies are covered by ( Name of the state) Shops and Commercial Establishments Act and standing orders (certified/Model) are applicable. If standing orders are not certified, Model Standing Orders shall apply. The employer has to display the standing orders (certified/model) at a conspicuous place say near entrance/notice board and supply the certified copy to employee even if against a reasonable cost say Rs.10/ (Ask in writing under proper acknowledgment the designated HR personnel e.g. HR Head or Manager as displayed in registration Certificate issued by Shops and Commercial Establishments Inspectorate, ………….Employee or anyone can obtain the copy of standing orders applicable to establishment from o/o Labor Commissioner (DLC that might also be CO-Certifying officer0 at location of Regd. Office of the company or thru local o/o Labor Commissioner that can direct the company to produce the copy, Inspector appointed Under ( Name of the state) Shops and Commercial Establishments Act that can direct the company to produce the copy…………….
3. The notice period is part of service conditions that is governed by various enactments applicable to the establishment/employer/employee e.g. ( Name of the state) Shops and Commercial Establishments Act that was enacted to govern the service conditions of employees working in such establishments, standing orders……….. These being enactments/instrument of law/statue…. enacted as per law of the land, shall prevail upon any private agreement/policy/rule drafted by employer and signed with employee e.g. appointment letter/contract of employment/HR policy/service rules and regulations/service agreement etc……………and any service condition that is inconsistent with such enactments shall not survive…….
The notice period as per:
--- ( Name of the state) Shops and Commercial Establishments Act;;;;;is as per length of service and is not more than 30 days………..and both employer and employee can tender notice pay ( @ as explained in the Act)in lieu of notice period without seeking anybody’s approval…..
---Standing Orders is NIL during Probation Period and 30 days after confirmation of service and both employer and employee can tender notice pay ( @ as explained in the instrument of law/statue)in lieu of notice period without seeking anybody’s approval…..
You may go thru Model Standing orders ;Sec13
4. Resignation can be without notice or permission…………….However the employee should tender some reasonable notice and affirm that:
--- NO tasks are pending at his end and routine duties be assigned that can be completed on daily basis within and upto last day in office i.e dated………..as per notice of …….days tendered by notice of resignation dated…………and to whom the charge should be handed over within and upto dated………………against proper acknowledgment on the spot……….and acknowledgment of notice of resignation be supplied immediately by Redg. Post and if deemed fit may mention that postage prepaid self addressed envelope is attached herewith for sending the communications by redg. Post….
---The notice pay as per correct notice period applicable per laws be adjusted in FnF statement and correct FnF statement be supplied for verification and acceptance within last date in office i.e. dated………………….along with acceptance of resignation, service certificate, Relieving letter, payment of FnF dues by Bank DD, Form16 as per correct FnF statement, NOC/NDC, PF number with all a/c slips, ESIC card,salary slips of all months, etc…………
5. The extract of appointment letter shows that the conditions are one sided and can be termed as arbitrary……………………..and contract of employment should promote equitable discretions…………..
If employer does not require acceptance of notice pay in lieu of notice period from employee then employee also does not require any such permission from employer……
6. You should immediately update the next employer preferably in writing that as informed in interview the notice period is 45 days and current employer is unwilling to relieve before expiry of notice period by accepting notice pay in lieu of notice period and may not issue acknowledgment of notice of resignation, acceptance of resignation, service certificate, Relieving letter, FnF statement/dues , Form16 as per correct FnF statement, NOC/NDC, PF number with all a/c slips, ESIC card,salary slips of all months, etc………………………and obtain written concurrence from next employer that you shall be absorbed on the strength of copy of resignation only………………..
You should ask the next employer to buy your notice period without any condition and pay the amount immediately on joining…………
If current employer does not adjust notice pay in FnF statement (and you pay separately) and next employer buys out notice period then you may be subjected to double taxation…..
7. If you have decided to retire from employment by tendering notice of resignation, under proper acknowledgment then you are not absconding, and have mentioned notice period then employer can not postpone or prepone the date ……………………….and can not accept resignation before or after this date…………………..
If anyone states even if verbally that you shall be declared ‘Absconder’ then you should record (audio/visual/witnesses/minutes of discussion) such threats…………………as it would be meritorious evidence later for use at appropriate time in appropriate forum……………..and shall also be helpful the malafide intentions of employer and its attorney’s in line management/HR……………………..and even legal cell……………….however the onus to prove shall fall upon you, hence do not leave the opportunity to gather irrefutable evidence…….
‘Absconder’ is a derogatory word and you can sue the person……
‘Abscondment’ is misconduct and employer may resort to termination in its record…………….hence submit everything under proper acknowledgment…………..and maintain record…………The employer has to mprovide the opportunity of natural justice and establish the misconduct………………………You may go thru Model Standing orders ;Sec14
You have the option to write to good offices of appointing authority, MD……………..
8. Now the Life Insurance/health Insurance companies have also formed unions and have affiliated with trade Unions in many states …………………….and trade Unions leaders know precise ways to handle situations and can be helpful…………….
Employees should unite and united employees can negotiate service conditions and defend their rights better………………….
Are you aware that ‘Works Committee’ as per ID Act is an authority and the President is from employee’s side and it has equal number of employees……….
9. You may submit gentle representation to good offices of appointing authority,MD, under proper acknowledgment and pursue by applying your persuasion, persistence, negotiating, reasoning skills………………..to resolve the matter in your favor……………
At the same time you should build favorable written record………………..
10 It is also possible that your line managers may not want you to be with another company (competitor) and hence may want to spoil your BGV/Reference check hence may indeed proceed to terminate....................hence it shall be appropriate to consult an able labor Law consultant with copies of Job advt,job application,interview call letter, offer letter, appointment letter, HR policy/Service Rules and regulations/Conduct and Discipline Rules as mentioned in appointment letter, copy of notice of resignation,any communication by company, awards/rewards,KRA's,incetives,Tagt Vs performance details etc now and proceed under expert advise of your counsel.....
11. If possible obtain extension of joining date from next employer...............
Rajendra K Goyal
(Expert) 27 January 2015
Very well advised by the expert Kumar Doab, agree to it.
sandy
(Querist) 27 January 2015
Hi Kumar, thanks for your advice..I am deputy manager sales in my company where I am working since 14jun-10 and now post offering my resignation on mail to my Boss and cc to HR manager.they are not releiving me as per my request raised for 2feb-15(resignided on 15-jan-15) due to these HR person is acting that on th basis of note mentioned on my offer letter they can insist me to extend my notice period and if I will not do so they will terminate me..which may lead a disaster to my career. Although I am trying to convine my new employer too.but he approach of my current employer is quite dissatisfied me a lot despite of working for them for 4.5years. so please suggest is my current employer can terminate me on the basis of clause mentioned on my offer letter despite of disclosing my last working day and serving notice period of 17 days. I have also mentioned on my resignation mail that I am ok to pay recovery amount as per my balance notice period. Pls suggest
Kumar Doab
(Expert) 27 January 2015
You should record the statements that if you do not extend notice period a letter of termination shall be issued and your career shall be spolied. It will help you as you will have an evidence.
Rest has been discussed. for more you may preferably visit your counsel in person.
You have posted now that you have worked for 4.5years After 240 days in 5th year you may become eligible for Gratuity @ 15 days Basic+DA as per last drawn wages.....hence you may either complete tenure to be eligible or ask future employer to buy it....
You can withdraw resignation before acceptance...... however now your current employer knows that you want to separate and may treat the situation as suitable to it that may include levelling some charge.....
Hence it is in your interest to record evidence and defend your interest....
The companies do prefer to issue termination simplicitor......however if you have evidence you can contest on merits.
malipeddi jaggarao
(Expert) 27 January 2015
No personal feelings in employment. the best way is take permission from the new employer and complete your notice period. If the new employer is so interested in you, as he knows your problem, it will not be a big different if you resign or the company terminates. You should not split the notice period into two parts on our own. You want to take advantage. Naturally the company will also think similarly. According to me there is no problem at all. If your new employer is willing to allow you to complete the notice period, do so, if he says you to join immediately, intimate your present employer that you have already served the notice period indicating date of relieving and ready to refund the amount for the balance number of days as per terms of agreement and ask them to suggest about handing over. If they are silent, stop going and join in the new organisation. Send a mail to the present organisation on the day of quitting stating that as it has not replied to you, you are quitting and will hand-over the papers etc., as per its directions at a later date suggested by them. Do not complicate the matter and look for legal remedy on every count. Legal remedies are lengthy and unless it is warranted better to avoid.
Kumar Doab
(Expert) 28 January 2015
Whatever you want to do and whatever you may do......................gather the irrefutable evidence.
Believe it that you will need it at a time and you will be able to defend your interest in a better way if you have an irrefutable evidence.
sandy
(Querist) 31 January 2015
dear thanks to All of you show the courtesy to my matter!!!!
Although as suggested i have been asked my next employer to extend the date of joining neither they are able to extend nor they can accept that resignation intimation mail along with disclosure of LWD to my current employer
and i had already disclosed my LWD as 02-feb-15 to my current employer
now in both the situations in will be in loss of my employment and career.
So please suggest, some way legal by virtue of it can be relieved. because now my current employer becomes rigid
Kumar Doab
(Expert) 31 January 2015
If you are not able to handle the matter on your own and with your own skills.......................meet an able Labor Law Consultant/Service matters lawyer/law firm in person.......and understand the remedies and merits and evaluate all options and proceed as per most suitable option.......
It is your career so you have to choose the option that is most suitable to you.
sandy
(Querist) 31 January 2015
thnx kumar, but just want your expertise in my case if i will stop going to my current employer post my LWD then is that feasible that they can treat my employment with them as Absconding or terminated for future ref. check in other company's too.
And any possible in such scenario about not providing me relieving certificate/service certificate later on.
Kumar Doab
(Expert) 31 January 2015
@ Author- Sandy,
Only the current employer can state what it can do or what it shall do!
Isn't it!
In employment, employee can apply rapport,goodwill, exceptional levels of persuasion,persistence,reasoning skills, clauses of enactments applicable to employer, skills of employee's/trade unions leaders and support of unions, lawyer........law of the land, courts of law.........
You are not able to get thru with current employer that is benefiting from your presence on board and also future employer that wants to get benefited from your presence on board........
You do not seem to willing to consult your Labor Law Consultant/Service matters lawyer/Law firm with all docs on record and understand the remedies and merits.
Online discussions have its own limits.
It is reiterated that you have to make your own assessment of situation and choose
the most suitable option.....
sandy
(Querist) 31 January 2015
Kumar , it's not like that but my problem is that my LWD is about come in next 2 days and I have no option to pursue further although my concern was just only to kno if I have stated to my employer that this my last working day and from x day I will not serve anymore to company and also disclosing that I am ready to pay recovery of balance notice period then how come they dispose me as ABSCONDING or terminated with them as I will be available on just a one mail or phone call to my personal no. Which I will drop into my last mail..this is could be the same scenarios even if my current employer is not accepting my resignation but next employer consider the resignation intimation mail (with stated LWD) .
sandy
(Querist) 31 January 2015
Pls suggest
Kumar Doab
(Expert) 31 January 2015
Your 2 statements in your 2 posts (last post and 4th from last post) are contradicting:
“i have been asked my next employer to extend the date of joining neither they are able to extend nor they can accept that resignation intimation mail along with disclosure of LWD to my current employer”
“but next employer consider the resignation intimation mail (with stated LWD)”
If your next employer does agree IN WRITING that it shall absorb you on the strength of your resignation by email mentioning your LWD then you have some ground to agitate against next employer…………..
Your posts do not clarify if your current employer has replied in writing to your emails confirming your notice of resignation, LWD, affirming to adjust notice pay……………declining to accept your resignation and to serve full notice period………….If it has not then you may have some room……………….
You have not confirmed whether current employer has inserted in any of its published version of rules/policies e.g. HR Policy/employee handbook/Service Rules and regulations/Exit Policy etc…………….that if resignation is not accepted and employee doesn’t serve full notice period……..and does not attend to office ………………he shall be deemed as absconding ……………….and terminated……………………and service certificate, relieving letter shall not be issued………………….
If your lawyer opines that you shall be covered as ‘Employee’/’Workman’ you have protection of enactments or otherwise you have to contest on service conditions narrated and reduced in writing to you and signed by you.
It is almost certain that your company shall scream that you are not covered as ‘Employee’/’Workman’……………………contract of personal service can not be enforced in court of law …………..Specific Relief act shall apply…………
The HR personnel due to its own compulsions/employer’s internal policies for them to follow/ to not to let you without stigma/not to liberate you easily from the private policies and thus set a precedence for others……………………may declare you absconding and terminate and issue adverse feedback in reference check/BGV……………….and may not issue service certificate/relieving letter………………..
In such case your lawyer shall need to find loopholes and poke holes in defense of current employer…………………………………..and this might be possible by mediation/arbitration/conciliation skills of your lawyer………………by dialogue……………….or thru court of law…………..
You must show job advt., job application, interview call letter, selection letter, offer letter,appointment letter, HR Policy/employee handbook/Service Rules and regulations/Exit Policy/Conduct and discipline rules….. etc to your able Labor Law Consultant/Service Matters Lawyer in person and give inputs in person and understand the merits from your lawyer in person and preferable let your lawyer draft your representations……………… You may state in your communications that all communications to you should be supplied by Redg. Post and notice of 30 days be provided for any act to be performed by you……………..and postage prepaid self addressed envelope is attached for sending Redg. Post to you………….
It is reiterated that WITHOUT WIASTING TIME YOU SHOULD SPEND QUALITY TIME WITH YOUR ABLE LAWYER………………..AND PROCEED FURTHER AFTER WEIGHING ALL PROS AND CONS……………….AND AS DEEMED FIT TO YOU AT YOUR END……………..
APPLY YOUR JUDGEMENT AND ACT WISELY.
T. Kalaiselvan, Advocate
(Expert) 29 January 2015
