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Ranvijay (Business Development Manager)     22 January 2013

Notice period buy out

Dear All, 

 

I need your guidance. 

I have recently resigned from my company. I have only served 6 months and was on probabtion. but the company is sighting the appointment letter saying that my notice period is 3 months. doesn't matter even if I am under probation. 

Also in case of buyout they are asking me for 3 months gross salary. In the apponitment letter it is written " payment of salary in lieu thereof". 

I wanted your urgent help as to I always heard that buy out happened on Basic Salary only. Also it is not metioned Grosss or basic so can they force me to pay buyout on Gross Salary !!!

according to basic salary I can buy out but gross will be too expensive. 

 

Please help I need to leave ASAP this bad company. 

 

Regards,

Ranvijay



Learning

 5 Replies

Kumar Doab (FIN)     22 January 2013

What is your organization ….an industrial establishment or commercial establishment, Govt or private….?

You may look into SE Act applicable to your state and standing orders of the company, extended to your designation.

You may go thru clause on probation/confirmation of service in your appointment letter/standing orders.

It is felt that 3 months notice period during probation period can be termed unreasonable.

Notice pay in lieu of shortfall in notice period is ideally Basic + DA .Employer encashes paid leave, disburses bonus, OT, Gratuity……on Basic + DA.

The notice period is part of service conditions. The service conditions are governed by standing orders of the company, appointment letter.

The terms and conditions of employment in the certified standing orders cannot be negated by conditions contained in letter of appointment.

The employer should display standing orders near entry/gate on notice board and provide certified copy of standing orders to employee against nominal charges say Rs.10/.

The Inspector/Chief Inspector can be approached for violation of rights. You may obtain the latest version from Dept. of labor website of your state or buy from market.

e.g. SE Act Delhi: 30.  NOTICE OF DISMISSAL

Model Standing Orders; 13.        Termination of employment, 16.       Certificate on termination of service.-, 17.    Liability of 17[employer

Valuable advice of learned experts/members is sought.


Attached File : 835119668 delhi shops & establishments act, 1954.pdf, 835119668 model%20standing%20orders.doc downloaded: 448 times
1 Like

Ranvijay (Business Development Manager)     22 January 2013

Dear Sir, 

Thanks a lot for your prompt reply. 

the duration is exactly my contenion and also the payout amount calculation based on Gross Salary. 

My company is Bilcare Ltd., pune. Its a Pharma packaging company based in Pune. 

I have attached my appointment letter for your refernce. I would be grateful if you can please check it and advice whatever possible actions I can take. 

Looking forward for your kind reply. 

 

Regards,

Ranvijay


Attached File : 835155291 ranvijay bilcare appointment letter.pdf downloaded: 335 times

Kumar Doab (FIN)     22 January 2013

Although it is your decision however erase the names etc to maintain confidentiality when you attach a document.

You have posted that:

--“ I have recently resigned from my company.”

Have you submitted notice of resignation or resignation with immediate effect?

Has your resignation been accepted in writing?

--“ I have only served 6 months and was on probabtion.”

Have you served less than 6 months or more than 6 months?

Did the company extend your probation period?

--“ but the company is sighting the appointment letter saying that my notice period is 3 months. doesn't matter even if I am under probation.”

Is this statement in writing e.g. letter, email or even if effect of it reflected by deduction/adjustment in FNF statement.

--“ Also in case of buyout they are asking me for 3 months gross salary.”

Your remuneration is as per CTC sheet.

By gross salary you mean Monthly Total {A} or…..total CTC. 

 

SE Act for Maharashtra { SE Act Bombay}: бб.Notice    of termination of service. (b) for less than a year but more than three months, without giving such person at least fourteen days' notice in writing, or wages in lieu of such notice:

If the company has sent you the FNF sheet you may not sign acceptance and you may submit non acceptance and protest in writing and request them to supply you a copy of standing orders of the company. If company is under the preview of IESO act and has not framed certified standing orders model standing orders shall apply. The service conditions in appointment letter can not be negated by conditions in appointment letter and you may find a relief from it.  

You may also submit your contentions in writing addressed to good offices of your appointing authority and MD and Chairman and request them to provide relief.

The company may claim that you have accepted the clause on notice period and notice pay and you are under contractual obligation of contract accepted by you and there is nothing illegal in demand of the company.

Hence you may approach a competent and experienced labor consultant/service lawyer with copies of all docs and records including details of communications exchanged with the company and let your lawyer look into the merits.

Your lawyer may ask you a set of structured questions and may opine that you fall within the category of workman or you may have to agitate in civil court.

The good offices of the company may provide relief or company may yield to legal notice {legal language} of your lawyer or you may have to agitate in appropriate forum.

               


Attached File : 835191485 the bombay shops establishments act.pdf downloaded: 152 times
1 Like

Ranvijay (Business Development Manager)     22 January 2013

Sorry Sir, I will do it from next time onwards. 

The sequence of events is like this. I joined on 5th july 2012 and resigned on 8th Jan 2013, so I have resigned after 6 months and 2 days. I have not received any communication regarding my confirmation or completion of probation period. nor was there any communication regarding extension of my probation period. 

So I resigned on on 8th Jan stating that please release me within next 7 working days under the impression that since I am under probabtion there is no notice period. 

On 9th Jan 2013 I received call and mail from HR head stating that I have a notice period of 3 months irrespective of under probabtion or not. So either I serve the notice period or have to pay off. This is the only mail I have received regarding the resignation till now. Can it be considered as acceptance of my resignation.

On phone when i asked them about the amount he said it will be calculated based on Gross Salary. I haven't asked as I dont have the money to pay them. but I have to join the next offer soon. 

On 12th Jan 2013 I have mailed back stating that I am not in a financial position to pay and will be willing to serve notice period advcied to me. moreover I have mentioned that when i joined I had already paid my previous organisation 50,000/- as payout which this company didnt give saying they dont have a policy for it. also I have mentioned that I was advcied by seniors that my work is not matching companies expectations and If this continues I might have to look outside implying that I should change or moveout. But now that i have resigned why i am not being released. 

I am meeting my sales head on thrusday to plea for an early release without the buy out but I am not very hopeful. I am looking at 2 - 3 options:

1. Is there any option where I can be released without paying according to my appointment letter and the communication I have mentioned. 

2. If they accept payout at basic salary basis.

3. If they ask me to pay on gross salary basis, can I go on legal case against them. 

I am very distrubed as I had joined this company with high hopes and didnt expect these things to happen. my tenure has not been a memorable one dispite my full efforts as I didnt get any help from back end team. and now when I resigned thinking that this is what they are looking for me to do, they are harassing me by not releasing me. 

kindly help. 

 

Regards,

Ranvijay

 

Kumar Doab (FIN)     22 January 2013

The probation period is time during which the g authority to confirm services of probationer shall assess overall performance and suitability of the probationer to reach a judgment on whether to confirm the services or terminate the service.

You have posted that “also I have mentioned that I was advcied by seniors that my work is not matching companies expectations and If this continues I might have to look outside implying that I should change or moveout. But now that i have resigned why i am not being released.”

At least you have placed on record that you were being asked to look for employment elsewhere implying your services were not likely to be confirmed.

Keep the copy and printout of this email safely with you in your file.

Do you have copy of any stinker/email/letter/appraisal vide which you are reprimanded on your performance in the company? Keep it safely.

It would have been better had you mentioned the names/designation/date on which you were asked to look for employment elsewhere.

Your lawyer would be able to structure your future representations and build the record in your favor.

It is suggested that you may consult elders in the family, competent and experienced well wishers, lawyer/law firm before you submit a representation and you should submit some representations to build the record in your favor.

--“ On 9th Jan 2013 I received call and mail from HR head stating that I have a notice period of 3 months irrespective of under probabtion or not.”

As already pointed out the company may claim that you have accepted the clause on notice period and notice pay and you are under contractual obligation of contract accepted by you and there is nothing illegal in demand of the company.

You need to counter it. Your lawyer can help you.

--“ So I resigned on on 8th Jan stating that please release me within next 7 working days”

If it was a notice of resignation the notice period given by you is expired.

“On 12th Jan 2013 I have mailed back stating that I am not in a financial position to pay and will be willing to serve notice period advcied to me.”

From which day you wish and company agrees to count the notice period?

The transactions with the company should be specific and clear., and effective date of resignation/last day in office should be mentioned.

--“I am meeting my sales head on thrusday to plea for an early release without the buy out but I am not very hopeful.”

“my tenure has not been a memorable one dispite my full efforts as I didnt get any help from back end team.”

You may cover everything in the minutes of discussion that you may submit after this meeting. It is suggested that you may consult elders in the family, competent and experienced well wishers, lawyer/law firm and draft your representation carefully and submit it carefully.

--“ Can it be considered as acceptance of my resignation.”

NO.

You have not served final resignation and company has not relieved you. Moreover you have chosen to serve full notice period. {I am not in a financial position to pay and will be willing to serve notice period advcied to me.}Another point is that as your performance is rated by seniors dissatisfactory company may issue a communication in writing that your probation period is extended.

--“ On phone when i asked them about the amount he said it will be calculated based on Gross Salary.”

Obtain specific response in writing.

Let your lawyer draft and structure your representations.

--“ moreover I have mentioned that when i joined I had already paid my previous organisation 50,000/- as payout which this company didnt give saying they dont have a policy for it.”

Since you did not secure a communication expressing concurrence to this effect on company you may not succeed in staking a claim.

However let your lawyer may make a final comment on it.

You may approach a competent and experienced labor consultant/service lawyer with copies of all docs and records including details of communications exchanged with the company and let your lawyer look into the merits.

Your lawyer may ask you a set of structured questions and may opine that you fall within the category of workman or you may get some relief under SE Act/IESO Act/ID Act or you may have to agitate in civil court.

 Valuable advice of learned experts/members is sought.


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