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Sumi (Manager)     22 May 2013

Employer not agreeing for accepting buy out

Dear Sir/ Mam,

I am working with an MNC for the past 3 years. Due to personal reasons, i have decided to put down my papers from the present organisation. I had first taken my resignation letter to my Boss on the 15th of May, 2013 to which he immediately tore the letter and threw it in the dustbin. Immediately upon which i sent an email that night to him and marked cc to the HR head requesting them to relieve me from the services of the organisation by 30th of June,2013 (45 days from intimation) as i am required to join my new employer by 1st of July,2013.

Now my HR is forcing me to service the entire notice period which is 3 months so that i lose the new job and i lose the present job also. My appointment letter clearly states that i am required to serve 3 months of notice else pay for the notice period. But my HR is not accepting the Buy out offered by my side. Also there is a clause in my appointment letter which states that i cannot join a competitor for a period of 3 years after leaving the services of the company.

My queries are that what legal rights do i have in making my HR oblige to work as per the contract terms and relieve me in 45 days and take 45 days money? Also what steps am i required to take now for the records.

Also please throw some light if my employer can bind me legally as i am joining a competitor.
Awaiting for your invaluable suggestions.


Thanks.



Learning

 4 Replies

Rama chary Rachakonda (Secunderabad/Highcourt practice watsapp no.9989324294 )     22 May 2013

 there is a clause in my appointment letter which states that i cannot join a competitor for a period of 3 years after leaving the services of the company.

As per this clause you are not entitled to get relieve order. As fas as notice is concerned 3 months notice is required as per the clause.

Sumi (Manager)     22 May 2013

Dear Sir,

My employer does not have any proof that i am joining a competitor. But regarding notice period, in my offer it is clearly mentioned that i am required to either give notice of 3 months period else make payment of the notice period. Now my employer is not accepting my proposal of buy out which is as per the contract. I need to understand what is the next step i can take so that my employer becomes obliged to releive me.

Kumar Doab (FIN)     22 May 2013

 

You are in which state, and the HO/Redg. Office of the company is in which state?

 

What is this company: a commercial or industrial establishment, and what is nature of your duties?

 

You may obtain the copies of standing orders of the company, HR policy, service rules applicable to employees, Exit policy, severance policy and other imp. documents pertaining to Tgt Vs performance, and completion of all tasks/assignments on hand.

 

You have posted that:

 

------“ I had first taken my resignation letter to my Boss on the 15th of May, 2013 to which he immediately tore the letter and threw it in the dustbin.”

 

This is not in line professional decorum, etiquette and displays, high handedness, high headed, rude behavior and intimidation. Your lawyer may opine that it amounts to criminal intimidation.

 

 

“Immediately upon which i sent an email that night to him and marked cc to the HR head requesting them to relieve me from the services of the organization by 30th of June,2013 (45 days from intimation) as i am required to join my new employer by 1st of July,2013.”

 

You could have stated the incidence of tearing an official and legal document which is pertains to severance of contract of employment between employer and employee.

 

 

Now my HR is forcing me to service the entire notice period which is 3 months so that i lose the new job and i lose the present job also.”

 

HR has chosen to become a party with boss and is now unworthy of being trusted for an unbiased and professional conduct. Barring a few good HR professionals, companies with good HR practices majority of the HR personnel adopt such practices.

 

 

They may create other unpleasant scenes.

 

Remain amiable and accessible, but alert.

 

If possible and workable keep some colleague as your witness or some visitor in office/trade union leader as witness and if you can record the incidences (audio/visual) for use at appropriate time in appropriate forum.

 

The resignation should be ideally addressed to good offices of appointing authority, MD, Chairman, and submitted by redg. post ( avoid speed post/courier). If the employee wants copies may be marked to line manager/HR Head.

 

POD of redg. post can be obtained from PO.

 

 

------ You may choose your options carefully and wisely.

Either serve full 3 months notice as being demanded by current MNC, and retain one job.

Or prepare in advance for an anticipated tussle and do not get perturbed.

 

 If any situation you may choose, build some favorable and written record.

 

-----First of all take your prospective employer in confidence, and submit in writing even if by email to HR/Line managers who have selected you, that your current employer is unwilling to accept your resignation/issue relieving letter since as informed during interview your notice period is 3 months and joining period offered to you is 45 days, so if possible the company may extend the joining period by another 45 days, and that your company has inserted a non compete clause in appointment letter for 3 years.

 

And you can not submit the acceptance of resignation/relieving letter, until or unless the current employer issues the same and supplies it to you, hence you can only supply copy of notice of resignation/resignation submitted by you and proof of its dispatch and delivery, and company should employ you on the strength of these documents only.

 

The new company may agree however if it adds a condition that you have to submit relieving letter within say………..2 months again you shall have issues.

Therefore you should have some document on record and in your favor.

Now my HR is forcing me to service the entire notice period which is 3 months so that i lose the new job and i lose the present job also. You have to handle the issue of BGV as well. The current employer may post adverse comments.

 

Therefore it is imp. that future employer supports you in all eventualities.

 

 

--------“ My appointment letter clearly states that i am required to serve 3 months of notice else pay for the notice period. But my HR is not accepting the Buy out offered by my side.”

 

You can tender notice pay by cheque (demand acknowledgment and to adjust in FNF statement) or ask the company to adjust in FNF statement/settlement.

 

Subsequent to resignation, hurriedly sent by email by you, you may submit now carefully structured and drafted representations to good offices mentioning that you have and are submitting notice of resignation dated with notice period of ……………………days/effective of resignation/last day in office being dated………………….and that you are willing to tender notice pay for shortfall in notice period as per clause number……………in appointment letter dated…………….issued to you, and handover the charge for which appropriate communication be supplied to you by redg. post.

 

This clause in appointment letter is a bilateral agreement to tender notice or notice pay in lieu of it.

 

 

 

You may mention that all tasks on hand have been completed by you and now onwards routine duties be assigned to you which can be completed within and up to your effective date of resignation/last day in office and you should be informed to whom you should handover the charge., and the concerned employee may be advised to issue acknowledgment on the spot.

 

 

“Also there is a clause in my appointment letter which states that i cannot join a competitor for a period of 3 years after leaving the services of the company.”

 

You need not inform the company which other company you are joining.

 

Indian Courts have been declining to accept the non compete clauses beyond period of termination of employment, terming it violative of Indian Contract Act and right to earn livelihood During period of employment with the same employer non compete clause is enforceable.

 

However does your position provide you custody of sensitive information, data protection etc?

 

 

You should take extra care on what you print, download, forward, so that company does not succeed if it charges you for Breach of Trust………………… and what you submit to next employer in writing about clients etc of past employer.

 

 

Resignation can be without permission or notice.

 

In case of employment contract the party which breaches the contract has to compensate the other party. This compensation is already described in bilateral agreement by employer and employee: and in your case it is notice pay.

 

Relieving letter is issued once all a/c’s by employee have been settled e.g. tasks/assignments on hand, payables to company, handing over the charge/company property……..

 

 

You may fine tune your representations as suitable to you and as deemed fit at your end.

 

It shall be appropriate to show all documents to a competent and experienced labor consultant/service lawyer, give inputs in person, spend quality time with your lawyer and proceed under expert advice of your lawyer.

 

If in your trade you have to work with such individuals, employers, sign such contracts, it shall be appropriate to maintain access to a smart lawyer and consult beforehand and thus avoid legal traps.

 In the meantime you may go thru the attachments.

Valuable advice of learned experts/members is sought.

 

 

 

 

 

 

 

 


Attached File : 501707597 417759075 validity of employment bonds.pdf, 501707597 background paper.pdf downloaded: 91 times
1 Like

Sumi (Manager)     22 May 2013

Dear Sir,


Thank you for sharing all the best possibilities and it has guided me thoroughly. I will take my prospective employer into confidence immediately & also send a formal letter through registered post to my appointing authority as per your inputs. Most likely they shall be forced to accept my resignation after i send them the letter through registered post.

 

Thanks a ton sir for your expert advice.


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