cpc

acceptance of resignation and notice period


Hello,

May I request you for some advice?

I am working for a consultancy company which has been formed out of a joint venture partnership with an overseas company. The Indian side of the partnership manages the operations here.

I have put up my resignation due to a medical emergency in the family which is forcing me to relocate to my hometown and am currently serving the notice period.

I put the resignation thru email after discussing with the reporting managers (I have an operational head and an administrative head). The administrative head was quite aggressive and started getting personal during the discussions.

1.       I am yet to receive an acknowledgement / acceptance for the resignation letter from my reporting managers  or the HR.

2.       I have requested for a waiver of my notice period ( 3 months). I also offered to pay for 1.5 months in lieu for the notice and that remaining 1.5 months shall utilized for handing over and exit formalities. I have not received any response for these points

3.       I am also being loaded with work as if I have not resigned and have also been asked to attend meeting with Clients. I politely declined to do this. However, have been threatened by dire consequences including termination and legal action.

4.       May I also understand what constitutes payment in lieu of notice. Is it the gross salary or basic + DA + HRA?

May I request you for some advice to tackle the situation.

Thank you

Best Regards

 

 

 
Reply   
 
FIN

Either you can serve full notice period of 3 months

Or

You need to look at other options and counter the moves of line managers/HR.

 

You and redg. Office of the company is in which state?

What is your nature of duties?

 

 

You have mentioned you as a ‘GM’.

The establishment must have registered its redg./ office/HO/your office under (Name of the state) Shops and Commercial Establishments Act and should have displayed the registration certificate near entrance. The name of the Manager/Agent of the employer must be mentioned in it. The name of appointing authority must have been mentioned in appointment letter issued to you.

The name of the Directors etc must be known to you.

The designation alone does not decide employee is a ‘workman’ as in ID Act and ‘Employee’ as in Shops and Commercial Establishments Act or not!

The notice period/pay and service conditions are stated in appointment letter, HR Policy/Service Rules and regulations mentioned in appointment letter………………………and Standing Orders (Certified/Model) applicable to the establishment and extended to the designation of the employee. If your designation is covered by say certified standing orders then it being instrument of law shall supersede/prevail upon appointment letter.

If the employee is not covered then he can approach Civil Court.

Is there any provision of notice pay in lieu of notice period stated in appointment letter issued to you and HR Policy/Service Rules and regulations mentioned in appointment letter…………………??

If yes employer is also bound by the T&C of contract of employment.

Are you aware of incidences when the employer has not allowed serving full notice period to employee that has tendered notice of resignation and has relieved during notice period?

 

1.5 months by all counts should be sufficient to handover the charge/company property and to enable the employer to put his house in order.

Such matters are best resolved by applying rapport/goodwill and exceptional levels of reasoning, persuasion, persistence, negotiation skills.

Employee should carefully draft notice of resignation/resignation and subsequent representations and thus build favorable record in writing.

You may mention in representation preferably by redg. Post, addressed to good offices of appointing authority, MD, Chairman (Directors in foreign office, Manager/Agent of the employer as in registration certificate) that no tasks are pending at your end as on date, and routine duties be assigned that can be completed on day to day basis within and up to expiry of notice period tendered by you/last day in office i.e dated………………………..and to whom you should handover the charge and charge should be taken within and upto dated………………..as after this date you shall not be available at the your HQ.

You may also mention the corresponding clause in appointment letter vide which notice pay in lieu of notice period can be tendered and ask to adjust notice pay in FNF settlement and supply the correct FNf statement in original for verification nd acceptance to you within and upto last day in office for verification and acceptance by you along with acknowledgment of notice, acceptance of resignation, service certificate, relieving letter, NOC/NDC, Form 16 as per correct FNF statement, PF number-a/cs slips for whole tenure of employment, salary slip of last month and whole tenure of employment, Notice of determination of Gratuity, and all payouts by Bank DD only, etc………….. thru redg. Post only.

 

Line Managers can not be rude and rowdy. Rowdiness of bosses is not a new and unknown thing. Employee should record such transactions (audio/visual) for use at appropriate time in appropriate forum.

 

Since you have been threatened of terminated, you can raise a dispute/complaint now also.

Before you act further It shall be appropriate to show the job advt, job application, interview call letter, offer letter, selection letter, appointment letter, CTC sheet, Salary Structure, Salary slips, STANDING ORDERS APPLICABLE TO THE ESTABLISHMENT (CERTIFIED/MODEL) AND EXTENDED TO YOUR DESIGNATION, HR policy, Service rules and regulations, Conduct and discipline rules, notice of resignation etc…………….. Communications exchanged to a competent and experienced Labor consultant/service lawyer at your location, give inputs in person and proceed under the expert advice of your lawyer.

 

Don’t remain entangled with HR/Line managers. Let your lawyer draft a representation addressed to good offices of appointing authority/MD…………..

 

 

 
Reply   
 



Thank you for the reply Sir.  to answer you points.

1. Even though I have been designated a GM, i report to the HOD for my department. My roles are strictly restricted and have no administrative powers. I also do not have anyone reporting to me.

2. My company is based in Mumbai. I am aware of the names of the directors.

I am not really happy the way my appointment letter was formulated. My appointment letter was given to me after a month of joining the organization as against, on the day of joining and after relocating to my current city with my family and house. They had added couple of additional clauses in the appointment letter which were not acceptable to me. While I objected to these additions, I was told to "shut up and sign" since I did not have a choice. I was a bit apprehensive to quit immediately because I had relocated, taken up a house, admission for my kid etc. 


Another reason was the fact the way they treated couple of other employees who resigned almost the same time that I joined. None of them had a easy exit. They were made to run circles and had tough exit. It is a known fact that employees leaving this organization are ill treated.

Following were the additional clauses that were included against my will which was never discussed with me:-
1. You shall not for a period of 3 months after leaving the company join any direct or indirect competitor in any capacity including as an employee, consultant, agent or otherwise
2. You shall not engage with any direct or indirect client for a period of 6 months after leaving the company.

I believe that these clauses are quite unreasonable since this actually affects my profession and livelihood. I am not sure of the ramifications of this clause because, I will have to join somewhere for work.

I went thru my appointment letter in detail and have the following observations.

1. There is no definition for "pay". I believe that I will need to get this clarified by the finance dept / HR.
2. The person who signed my appointment letter was the head HR and is no longer part of the organization. I am not sure if the person was actually the authorized signatory because he was not allowed to sign on other company related matters or contracts.

If things go out of control, I will need to consult a lawyer. However, I am contemplating on drafting another letter highlighting the key points such as relieving date, payment for buying out the notice period and request to limit my duties to routine assignments which can be completed on day to day basis and limited or no client interaction. I hope this should suffice.

Please do let me know if you have any suggestions or advice.

Thank You

Kind Regards,


 
Reply   
 
FIN

Employee should inquire about the establishment, its ranking, reputation, standing, repute of its promoters, Managers, HR practices before joining it.

Employee should negotiate service conditions and obtain all docs including appointment letter, HR policy/standing orders/service rules and regulations stated in the appointment letter……………………… before joining it.

The employer may claim that appointment was accepted without appointment order and service conditions were negotiated.

If service conditions that were not negotiated were inserted in appointment letter then employee should always submit gentle dissent in writing under proper acknowledgment.

Did the company agree to pay relocation expenses and did you claim and did it pay?

Your lawyer can opine that you would be covered as ‘workman’ as in ID Act and ‘Employee’ as in Shops and Commercial Establishments Act or not! If you are not covered then the service conditions shall be governed by service conditions stated in appointment letter and HR Policy/ service rules and regulations mentioned  in the appointment letter………………………………………Therefore you may not restrict yourself to appointment letter alone but must obtain the HR Policy/ service rules and regulations, too.

Is notice pay in lieu of notice period stated in appointment letter issued to you? If yes it shall be applicable and may be the max. amount of liquidate damages to be paid.

Employee should not leave any room for the company to lay a claim that employee has caused any kind of loss.

Employee should build sufficient record in writing to suit his long term interest.

Rowdiness of bosses can be complained. However remain amiable and gentle.

 

Job application and separation are personal matters and can be communicated from personal email id.

If employee has submitted resignation to retire from establishment then he has notified the separation and he shall choose the date of retirement. Submit regular reminders and do not let managers/Employer to claim that employee has absented/absconded/absented or has indulged in any misconduct.

Your managers/Employer for sure shall scream that you are neither workman nor employee and relationship is that of master and servant , Specific Relief act shall apply and contract of personal service can not be enforced in court of law and jurisdiction shall be courts at Bombay.

                                                              

1.       Indian Courts have consistently been declining to enforce Non Compete Clauses/agreements as it hits the right to earn livelihood and clauses of Indian Contract Act. You may find the attachments useful.

2.        The HR head might have been authorized by the board as appointing authority.

 

The establishment should be covered by Bombay Shops and Commercial Establishments Act…….

 

You may go thru:        

Sec 2: Definitions: (4), (6), (7) ,(16), (30)

38

38-B: Application of Industrial Employment (Standing Orders) Act to . establishments.-

{ If the company employs 50 people the standing Orders shall be applicable. If standing Orders are not certified Model Standing Orders shall apply: Sec 13………………..Notice period during Probation is NIL and after confirmation it is 1 month.}

 

 66 .Notice of termination of service.-              

{ For service period <1year notice period is 1 month30 days

                                        < 1 year > 3 months notice period is 14 days

                                        < 3 months NIL.          }

Before you act further it shall be appropriate to show all docs and give inputs in person to a competent and experienced Labor consultant/service lawyer at your location, give inputs in person and proceed under the expert advice of your lawyer.

 

 



Attached File : 737076497 the bombay shops establishments act.pdf, 737076497 model standing orders industrial employment standing orders rules.pdf downloaded 150 times
 
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