Change in notice period

Hi All,

To update the status of the above issue, my ex-organisation has given negative feedback about me, in one of the background verification made by an authorized back ground verfication team. The feedback clarifies that, I am not eligible for rehire due to post resignation behavior and indiscipline, they also quoted that, I am irregular to work, not punctual, very aggressive and rude in behaviour.

I do have the below justificaiton for the above allegations:

1. "Employee of the Quarter" award during my tenure.

2. Spot Assessment Award for the customer centric approach

3. Number of Appreciation emails by Business Partners, Managing Director, and Project Managers appreciating my efforts at the workplace. 

4. I did get a 330% salary hike along with a designation change in just 4 months of joining the organisation.

5. Worked for more hours than normal hours and a compensatory off for the same. (One day I did work for 19 hours continuously and everything is recorded in the Time sheet of the Organisation)

I do have all the emails for the above and I did approach the CEO of the organisation with those proofs. Unfortunately, my efforts in convinicing them failed. And they did ask me to send an apology in writing so that they can give me a clean chit, which I am certainly not going to do. My entire career including my current and future employment is under threat now.

I still have got the below questions:

1. Do I need to approach O/O Labour Commissioner directly or can  I file a Civil or Criminal Suit against the Organisation and the HR Head?

2. Can I file a defamation case against them asking to compensate me for damaging my name in the small IT market? What could be the court fee for the defamation?

3. Will I be able to file a defamation case later if I appoach O/O Labour Commissioner?

3. Can this be a voilation of Human Rights?

4. Can this considered as voilation of Human Rights?

I believe, I have a very good case in hand and I have to be compensated by the Organisation for the wrong allegations made against me. So that others who used beg apology are also motivated to fight against the injustice. 

Thanks in advance for your worthful suggetions. 

(I have also attached a pdf file related to defamation, which may help like minded people)

"There may be times when we are powerless to prevent injustice, but there must never be a time when we fail to protest." 
-Elie Wiesel

The conduct of this zealous and vindictive HR Head is perturbing. He is not fit to left to loose around in a civilized society. Kindly note that in some companies/by some managements it is felt that there is a place for such individuals and their practices as they are the guys who handle the dirty work for companies and that is their specialty.

You may deny the allegation emphatically to new employer and substantiate the zealous and vindictive conduct of this HR Head.

The allegations leveled in reference check are serious and the comment that your post resignation behavior is bad for  a simple reason that you dared to accept  a policy which was not applicable to you and refused to bow to this HR head.

if you have decided to proceed and approach lawful authority you may first approach the foreign principle MD, Chairman and explain your grievance. If you have access to a foreign attorney let them put a word to the o/o foreign principle MD, Chairman.

You may record (audio/visual) transactions during which you are coerced /forced to sign apology letter. It seems that this HR Head and his company is pressurizing for the apology letter as they find this is the only escape and bad reference check is another coercion and threat issued to you. This HR Head and his company must have tried this before and might have succeeded with majority of the employees and these are tricks of the trade hence domestic and foreign principles are waiting to see the result in your case.

However they seem to have complicated their problems, since you are determined.

The following is from your attachment:

“it is always better to have some

confirming evidence. ( a letter, a memo, an e-mail, statements from fellow employees

confirming the defamatory remarks about you, etc.)”

Obtain the copy of this report and also the contract given to third party for reference check. This shall help you to nail the HR Head and company. Their comment that “your post resignation behavior is bad” can trouble them.

For their wrongdoings you can approach any court.

Kindly approach a competent and experienced lawyer with all record, and give inputs and proceed under expert advice.

Dear Sir,

Thanks for the expert advice. Just now I spoke to my lawyer in this regard and we have planned to file a PCR immediately. My only concern is about Indian Labour Laws, I did hear from my fellow colleagues that Indian Labour Laws are not very rigoruous compared to USA or UK. Whatever the case, I am determined to teach a lesson to the HR Head and that Organisation. Will keep this forum posted about the happenings. Thanks...

Your friends can be right.

Your lawyer can be precise. Kindly take opinion and qualified decision.

hi Experts ,

can you giude me if any of the employee can be directly hired as confirmed employee and no ptobation clause in the appointment letter.

thanks VS

It shall depend upon the service rules of the establishment.

If the employer wishes employer can recruit as confirmed employee.

The probation period is the time given to the employer and also to the employee to find out if they are suited to each other.

    The objects of placing a fresh appointee on probation is to make a close watch on the performance during the period of probation so that at the end of probation, an overall assessment could be made to decide whether or not to retain him in service. A rigorous screening of performance during the probation period should be made and there should be no hesitation to discharge if the work of the officer during probation has not been satisfactory. Probation should not be treated as a formality and the general guidelines to review performance during the probation and the circumstances under which to discharge probationers should be systematically and vigorously followed so that the necessity of dispensing with the services of staff members at later stages may arise only rarely.

Thanx so much ,

just need to check if we have hired some one on contract for one year .. there after we make him permanent employee . But at the time of making him permanent employee we remove probation clause as we want to hire him directly as confirmed employee. are there any legal implications of this.

thanks for your help

There is no probation period in case of fixed term employment.

The probation period is the time given to the employer and also to the employee to find out if they are suited to each other.

If the employer is satisfied that the person on fixed term contract has performed to the satisfaction of the employer and is worthy of being taken into permanent employment employer can do so.

It can be arranged in line with service rules of the company.

It can be implemented with or without probation period in line with decision of the management. 

The offer of job is made by employer and terms of employment are quoted by employer.

The employer should look into what shall be best for interest of the company.

As a HR person you may obtain the sanction from the appointing authority/MD/Head-HR.

Hi, 

My friend resigned recently from the job and has been told to serve for 2months whereas the Offer letter states only one month notice period. Although it is mentioned in the offer letter that the policies can change time to time. Also this is a clause mentioned in the offer letter " You will be governed by the statutory regulations/provisions and the laws and policies of the company applicable to your position, which may be framed time to time" 

Is it necessary for the employee to abide by the new policies if he has not signed any paper with new policy for serving 2months notice period?? 

Also he has alraedy served one months notice period and wants to buy out for another month but the HR is forcing him to serve another month, and has told that he will be declared absconding if he does not do so. Can an employer force an employee to work if the employee is not willing to??

Please reply ASAP. Waiting for your inputs.

Thanks in advance!!

Aparna,

Kindly always start a new thread.

The question arises that has company supplied any communication to the employee on change in notice period? If no then there is no change initiated by company. All rules framed by the company have to be supplied to the employee and ideally company should obtain acknowledgment and keep a copy in personnel file and allow the employee to retain a copy in his personal file. All rules should be kept in reach and knowledge domain of the employee.  

If yes employee may accept or decline. If employee has not accepted it should not be enforced by the company.

“HR is forcing him to serve another month, and has told that he will be declared absconding if he does not do so.”

It is believed that these transactions are all verbal. Employee should record such transactions {audio/visual} and keep some evidence and witness. The burden of proof shall be on employee.

The employee may submit a carefully structured and drafted representation by letter thru redg post addressed to good offices of appointing authority, MD, Chairman, and Company Secretary and narrate all incidences {date wise with name of company officials} and concludes that the steps of HR are not legitimate and is coercion, and having served the company faithfully and notice period as per clause number……….in appointment letter dated………..employee should be relieved honorably. Employee should mention effective date of resignation and ask to whom charge and company property {if any} should be handed over under proper receipt. Employee may request the good offices to allow examining the personnel file kept by the company. Employee must declare that he/she is absconding. Employee may mention that all communications by company may be supplied to him/her by redg. post only, and a postage prepaid/self addressed envelope is enclosed. If company issues any communication, notice, legal notice, advertisement in paper { before declaring absconding, as per process} it should be replied with facts by redg. post.

Employees should handover the charge, and submit formal resignation, addressed to good offices by letter under acknowledgment.

The new employer should be informed in writing that he/she can produce only the copy of notice and final resignation and HR of previous employer has raked up an altercation on notice period to which proper representation with facts has been submitted to good offices, copy of which is enclosed. This is to keep record in favor of employee and avoid damage and distress.

Adamant and recalcitrant employers are known to step on the toes of employee, flout norms/rules/laws and insert false documents in personnel file, and sometimes even approach new employer.

If this employee is neither strong willed, not confident he/she may surrender to the tantrums of HR and serve the notice period.  

The state of Karnataka has ended the exemptions granted to IT industry from provisions of some of the labor laws. Now employee can agitate under all applicable labor laws.

Look into certified standing orders of the company, and if these are not certified model standing orders shall apply. If employee is other state, SE Act is applicable to IT companies.

Valuable advice of learned experts/members is sought.

Kumar, 

The HR and the management both are not ready to relieve him from services. Though he is ready to even pay back for the additional one month which was not stated in the offer letter, which he has not served. He has not yet been declared absconding but being threatened to be declared so, if he doesnt join back and serve the one month extra notice period. He has done all the communications thru e-mail so everything is well documented with him. 

This is what is written in the offer letter for your reference.

"This agreement may be terminated by providing a notice in writing on either side or salary in lieu of such notice. as per the company policy the notice period is one month in your salary grade. your relieving from the services however depends on the satisfactory completion of any assignments you are working on during the said notice period and the completion of handover formalities as defined by your supervisor. Please bear in mind that the company's policies(including the one pertaining to notice period / separation) are subject to changes from time to time and you will be communicated of those changes in a timely manner."

Now what i want to understand from here , even if the employer may have circulated any e-mail about chnage in notice period, can they force the employee to obey if they have not taken a signature from the employee for the change in notice period??

I am sorry for my naiveness but could you please explain what is "Good Offices" in the above explanation given by you?

Good offices within the company: Appointing Authority, MD, Chairman, Company Secretary…

“Please bear in mind that the company's policies(including the one pertaining to notice period / separation) are subject to changes from time to time and you will be communicated of those changes in a timely manner."

The above statement of the company affirms a communication addressed to this individual by name and not a generic circular etc.

Has the company communicated any change to employee even if by circular?

Thanks Kumar,

There is no communication/Circular that he is aware of. How he got to know anout the changes in the notice period, was by word of mouth. But he will check in the old e-mails. also just communicating to the employee of any such changes will force him to obey it? or is there a need of an acknowledgement/signature from the employees side? 

--“How he got to know anout the changes in the notice period, was by word of mouth.”

Gossip and rumor can’t be the rules.

Has the employee submitted notice of resignation under acknowledgment?

Has the company issued any reply in writing?

Employee may submit reminder{s} and mention effective date of resignation/last day in office as per clause number……from appointment letter dated……issued to employee and demand acknowledgment and name and address of designated employee to whom charge and company property should be handed over.

Employee may include and narrate all previous representation made so far in person, by email, letter etc with complete record of date, time, and name of company personnel/designation/dept to which representation was made.

Obtain copy of standing orders, service rules etc.

--“also just communicating to the employee of any such changes will force him to obey it? or is there a need of an acknowledgement/signature from the employees side?”

Company may claim no reply is deemed acceptance. Employee may claim no reply is deemed declinature. However employee should check all emails etc and refrain from feigning ignorance. Employee may request the good offices to allow examining the personnel file kept by the company.

However the employee has to take a stand suitable to him and legitimate.

In this case company should not restrict to sending information but ask for acceptance in compliance to service rules to effect the change.

Change in service conditions should be accepted in writing. That is why companies obtain acceptance on letter.

Let the employee visit a competent and experienced labor consultant/service lawyer with all documents and records and let a lawyer evaluate the merits and conclude that employee falls within the category of workman. Companies grant fancy designation and burn extra energy to make an employee feel that he/she is not workman. Various enactments applicable to workman limit the choice to employer.  

It prevalent circumstances today employee should keep access to a trained legal mind/lawyer/law firm and seek advice in time. Employee should retain family doctor and family lawyer. Both are must.

Valuable advice of learned experts/members is ought.