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Karthik (Sr Manager)     30 September 2011

Employer employee agreement

Dear Experts,

My wife is working in a IT firm for the last 4 years. But due to personal reasons, she wanted to quit the job. She has put in her resignation and asked for release after 37 days. But there is a 60 day Notice period clause in her employment agreement. She had offered to buy out the notice period or surrender unused leaves. But her employer is adamant and wants her to serve the full 60 days. So, my question is

1. Is the Employer legally right in asking her to stay against her wishes?

2. Is this not mental harassment?

Please revert. 



Learning

 8 Replies

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com)     30 September 2011

Dear Karthik

if your wife have some unused leave then the employer shall adjest the leave

it is also a mental hrrassment

akash kapoor (*************)     30 September 2011

It depends oh the term of contract between the promisor and promisee...

Adv. Vaishali Karloopia (lawyer)     30 September 2011

CONTRACT CAN BE REVOKED AT ANY TIME IF PARTIES PHYSICAL HEALTH IS NOT ALLOWING HIM/HER TO DO SO.

Karthik (Sr Manager)     30 September 2011

If the company is not willing to adjust the leaves and reject the offer of buying out the notice period, what is the next course of action, she can take? Can she choose a date and not attend work from that date? Will the company be in a position to file an absconding case? 

PS: Her Employment Offer letter states that either party can give the other, 2 months notice or pay 2 months gross salary in lieu of the number of days of notice period.

Kindly clarify.

Kumar Doab (FIN)     30 September 2011

IT firms are IT firms. Lady has served the firm for 4 years and the employer is adamant.

This sector should form a trade union and communities. 

Employer can not force the employee to work and the penalty can be max. to the amount of notice pay. Hope Company has not issued any adverse comments in any of its communications, to the lady.

Lady can structure her resignation letter/follow up communications.

lady can submit a written representation under acknowledgment with a copy to her, addressed  to her appointing authority, MD,HR Head, Company Secretary and can mention that she has submitted her notice of resignation dated..........with effective date of resignation..........in concurrence to clause no....of appointment letter dated....issued to her and the notice pay if any may be adjusted in her FNF and amount payable if any by her may be informed along with the original copy of FNF statement so that she can make arrangements to tender the amount by a/c payee cheque to the company. She can request the good offices that she has served the company with absolute dedication for 4 long years and under unavoidable circumstances beyond her control she is constrained to resign and good offices may arrange and ensure so that she is granted a smooth exit with completion of exit formalities and is relieved within the effective date of resignation  and is supplied the acknowledgment of her notice of resignation immediately thru registered/speed post and acceptance of resignation, settlement of a/c and payments due to be paid to her, form 16,work experience certificate, relieving letter, PF accumulation reports, PF withdrawal/transfer forms, NOC/NDC etc, within  2 days after the effective date of resignation by redg/speed post( or the ambit of law of land and rule/policies of the company concurrent to the concurrent law of the land if this is deemed fit  by you, elders in the family, competent and experienced well wishers, lawyer/law firm). Kindly ask in this letter to whom the company property should be submitted and the designated official may kindly be advised to issue proper acknowledgment on the spot confirming receipt of company property and handing over the charge. Lady may mention that she is willing to cooperate to train her replacement up to and within the effective date of resignation, and she may please be informed in writing the details of her replacement. She may be assigned work or task which can be attended by her up to closing hours of her effective date of resignation.

Company can sit on relieving letter and post good/adverse comments in the Conduct column in relieving letter or can issue conduct certificate with good/adverse comments.

If there is no evidence against the employee, the employee can charge the company and demand to print a retraction. If the company declares the employee absconding then employee can approach o/o labor commissioner and let the company face the consequences.

 

 

It shall be appropriate to obtain good comments on work done by her, tasks completed by her, her professional ability, clean and good service till date, and her conduct from her reporting authority/HR by a latest communication by email or letter.  Copy of all appraisals till date and all relevant communications should be kept safe for future.

Lady can seek an appointment with her reporting authority, and good offices and make her position clear and may submit the minutes in writing.

You should take care that no blunder is committed and no room is left for the company to level any kind of charges on conduct or loss caused to company. Employee should use rapport, goodwill, persuasion, persistence, reasoning, negotiation, flexibility; convincing skills to build the record in his/her favor and obtain the favorable results from concerned personnel of the company. Employee should obtain copy of employee rule book, standing orders of the company soft copy of which may be available at the HR page of the intranet or hard copy can be demanded form HR in writing. Employee  should remain cool, amiable, and gentle in his/her written or verbal transactions and avoid to land up in altercations, disputes, litigations.

If nothing works lady may lodge a complaint with o/o labor commissioner.

The situation in today’s business environment is such that attrition is a teething problem and recruitment and retention is difficult and employer wants to deter any one to defy notice period and in some instances posted at LCI employers have demanded that the relieving date shall be decided by the company as per business needs even if it exceeds the notice period. The ill informed, hapless innocent employee suffers.

It is time to be aware and vigilant about rights, processes, rules etc and act smart.

Be Smart.

V. VASUDEVAN (LEGAL COUNSEL)     30 September 2011

No employer can complel an employee to work against his/her desire. At the best the employer may seek for notice for any deficit in notice period. In the instant case, send a notice setting out the details of notice period that the employee can provide, the leave adjustable as per the leave policy of the company and also set out the personal reasons for earlyer relieving ALso undertake to pay for the remaining notice period (residual after adjusting the notice period/leave balance) by cheque oro adjustment in the settlement (only basic pay calculation for the notice period)

vasudevan

Kumar Doab (FIN)     30 September 2011

Learned Mr. Vasudevan has given valuable advice.Kindly follow it.

Submit a crisp, specific, to the point,structured communication to this employer. Mention notice pay @ basic pay only.

Don't even waste your words with such employer.

swajan.... (advocate - F.C.M.A LL.M)     01 October 2011

Do not fear or try to go to nitty grity of any thing. As per Slavery abolition Act by International Human Rights where India is also a permanant member, NO ONE IS FORCED TO WORK AGAINST HIS WILL.

Just write a letter to National Human Rights and see THE IT Company at their knees. They will run to you to settle the matter with compensation, which probably you can not imagine.

See this link for education ... https://www.yourrights.org.uk/yourrights/the-human-rights-act/the-convention-rights/article-4-prohibition-on-slavery-and-forced-labour.html

Also this ..  https://www.antislavery.org/includes/documents/cm_docs/2010/b/background_information_for_teachers.pdf

And this ... https://www.ohchr.org/Documents/Publications/slaveryen.pdf

Cover no less than the Managing Director.

All the best


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