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rahul (xyz)     20 February 2013

Notice period buy-out

Hi,

I have resigned from my company on last monday i.e 11th Feb 2013 and i have asked them last date for 19th march 2013. But as per my contract my releaving period is of 3 months.

But my manager is not ready to leave , he is putting unncessary mental pressure on me to complete the project . He says that I will have to serve 3 months completely. He is doing this purposely.

I got 25 annual leaves pending with me as well i have asked them for notice period buy-out option but they are not ready to compensate.

My problem is i am relocating to singapore permanently, my wife got permanent transfer to singapore and she is travelling on 5th march 2013 and she is 2 month's pregnant and it becomes utmost important for me to be present with her.

The company which i am joining want me to join by 21st of March 2013 and not later than this and they want releaving letter for sure.

Please help me out with any suggestion what i can do

My offer letter has below clause:

Termination
During the period of probation, your employment is terminable either at your option or the option of the Company by giving prior written notice of 30(thirty) days to the other. Payment of salary in lieu of notice period shall be at the sole discretion of the Company. After confirmation of your employment, either the Company or you may decide to terminate the employment by giving a 90 (Ninety) days prior written notice. Payment of salary in lieu of notice period shall be at the sole discretion of the Company. However, in the event of gross misconduct or commission of a serious breach by you, without prejudice to any other rights the Company may have, the Company is entitled to terminate your employment with immediate effect with or without prior notice. Your have taken up employment with the Company at your “will’ and you understand and agree that it is for no specified term. There are no representations or promises that your employment will continue for a specific period or will be terminated only under particular circumstances. Breach by you of any of the above conditions of this offer or those in any of the Annexure hereto or Company Policies, IIA, will render your service liable to termination without any notice or payment in lieu of such notice. In the event of termination of services, the Company shall be entitled to offset payment of any allowance / advances, leave, any amount that you owe the Company,etc., against salary due and or any other amount due to you and to withhold amounts that may be required by the relevant authorities.

 

Regards,

Rahul



Learning

 3 Replies

Kumar Doab (FIN)     20 February 2013

Such matters are best resolved by applying rapport, goodwill, persuasion, persistence, reasoning, and negotiation skills. Good offices of the employer should be approached and a fair opportunity be given to good offices to provide relief. Even while you are agitating remain amiable. Good offices should act fairly as parent and should adopt unbiased and reasonable approach and save the organization and employee from burden of litigation.

You have posted that:

--“ I have resigned from my company on last monday i.e 11th Feb 2013 and i have asked them last date for 19th march 2013. But as per my contract my releaving period is of 3 months.”

You are not causing abrupt termination, and thus you have displayed character and have done well to your organization.

You have tendered reasonable notice of 38 days. This should be the sufficient time for your company to put the acts in order and to put a succession plan in place and to its effect.

--“ But my manager is not ready to leave , he is putting unncessary mental pressure on me to complete the project . He says that I will have to serve 3 months completely. He is doing this purposely.”

What kind of mental pressure? Do you have any evidence or witness? No one can be rude, coercive, threatening at work place and take the law in hand.

Employee should record such transactions (audio/visual) and keep witness/evidence.

This might come handy at appropriate time and in appropriate forum.

You may remain amiable (on record) and request the manager with whom you have long association to be nice, gentle and let you carry the rapport and good relationship with him and organization and do not cause alienation or make the environment stressful.

Assure him that you shall do your level best to train the designated replacement and thus help to complete the task. If workable suggest (on record) the internal and external candidates who can replace you. If there no replacement is short listed/selected why does not he come forward to share the task along with other superiors and colleagues /peers?

He should lead from the front.

Does he not know the task being performed by you? Is he an arm chair manager? Isn’t it his responsibility to ensure “show must go on” and mind the store?

It is felt that it is also the time to put misconduct of the company/line management/HR on record and keep evidence/witness.

Many of the CEO’s deliberate that they and the companies run by them are not affected by attrition as they are always ready to share the work and have succession plan in place.

(Read Attachment: Should employee be forced to serve the notice period.).

--“ I got 25 annual leaves pending with me”

Company shall encash the paid leave in FNF statement. (Most probably @ Basic + DA)

Company may not agree to reduce the notice period by period of annual leave as it would like the employee at work station for whole period of notice.

“i have asked them for notice period buy-out option but they are not ready to compensate.’

You may affirm that notice pay may be adjusted in FNF statement (@ Basic + DA)

--“My problem is i am relocating to singapore permanently, my wife got permanent transfer to singapore and she is travelling on 5th march 2013 and she is 2 month's pregnant and it becomes utmost important for me to be present with her.”

Explain in writing under acknowledgment with a copy to you, in notice of resignation or subsequent representation and thus make it part of notice.

Since manager has turned self centered do not limit your self to line management and HR and address all representations to good offices of appointing authority, MD, Chairman, Company Secretary and request to intervene and provide relief. Thus build favorable written record.

--“The company which i am joining want me to join by 21st of March 2013 and not later than this”

This is another reason for you to tender notice period and affirm your willingness to bear the penalty for shortfall in notice period from your savings/salary.

You can even enclose the cheque for the payment of notice pay and list of payables by you to company and payables by company to you and conclude that company owes you the monies.

“ and they want releaving letter for sure.”

This is the catch and raw nerve which your manager is pressing and even HR and superiors may press.

Reliving letter signifies proper relieving and is issued post all settlements by employee. Settlements due at the end of employee are handing over the charge/company property to designated employee, payment of dues if any. Ideally it should be handed over  on last day in office or within next 2 days.

You may write to the good offices that you are willing to transfer the knowledge, handover the charge/company property within and up to your effective date of resignation/ last day in office and task may be assigned to you on day to day basis which can be accomplished up to and within your effective date of resignation and details of the designated employee for handover should be supplied to you in writing and designated employee may be advised (with a copy to you) to supply you proper NOC/NDC and receipt/acknowledgment on the spot.

Charge is usually handed over to HOD/reporting authority.

If you have surrendered the company property/charge and have affirmed to pay amounts if any as per correct FNF you have completed your part of the contract and company should adhere to its contractual obligations and relive you gracefully and honorably.

You may request the good offices to supply you the acknowledgment of notice of resignation, acceptance and ensure that acceptance of resignation, correct FNF statement, payment of dues as per correct FNF statement, Form 16 as per correct FNF statement, PF number/account slips/pass book/attested copies of PF transfer forms, payment of gratuity ( if it is in CTC sheet), NOC/NDC, service certificate/work experience certificate, relieving letter, etc should be supplied to you by your last day in office….

Avoid verbal transactions.

--“ Payment of salary in lieu of notice period shall be at the sole discretion of the Company.”

If notice pay is not deemed a sufficient then company should quantify and justify what does it want in lieu of or in addition to notice pay?

{Resignation can be without permission or notice.

Notice pay is as per the exit clause of appointment letter. It is a compensation given by one party (Who broke the contract) to other party because of the breach of contract. Law regarding breach of contract is given in section 73 of Indian contract Act 1872.

Section 73 is declaratory of the common law as to damages. The basic purpose of damages is to put party whose rights have been violated in the same position, so far as money can do so, as if his rights have been observed. When compensation sum is named in a contract as the amount to be paid in case of breach then it is know as liquidated damages. Example in the employment contract. When it damages are not given in contract then it known unliquidated damages in these damages will be defined by court on the bases of reasonableness and facts of the case.

Section 74 contract of contract act deals with liquidated damages and penalty. Whether they compensation amount mentioned in contract is liquidated damages or penalty will be defined by court. Compensation amount mentioned in contract will be maximum damages if court found that amount is not reasonable then it can reduce it because compensation is only given for losses not for penalty but court can not increase compensation amount.

It is general law that whenever there is any ambiguity in terms of contract then benefit of doubt will given to party who don’t make the contract.

Employee does not prepare/make the contract.}

--“ After confirmation of your employment, either the Company or you may decide to terminate the employment by giving a 90 (Ninety) days prior written notice.”

Has the company confirmed your services in writing?

What is this company and Industrial Establishment or Commercial Establishment?

Has it framed its certified standing orders and extended to your designation. If IESO Act applicable to it and certified standing orders are not framed model standing orders shall apply. Service conditions stated in standing orders can not be negated in appointment letter.

Obtain copies of job advertisement ( and see the details for any thing relevant to you) HR policy, service rules, severance/exit policy etc.. Most companies’ issue appointment letters which state that the various policies of the company (eg. leave policy, HR policy, exit policy, severance policy, etc.) are part of the appointment letter and the employee is bound by the same and these override contrary provisions of the appointment letter.

The constitution of India provides the fundamental right to every person to choose the profession of his choice and any agreement contrary to this is invalid.

It should have put its registration certificate on Notice Board.

SE Act is applicable to all employees.

The SE Act applicable to your state may not mention notice period of 90 days, thus the appointment letter issued to you may be violative of SE Act and void to that extent.

e.g. SE Act Delhi: 30. Notice of Dismissal.—

The notice period of 90 days is beneficial to the company and not you as per explanations given by you in your post.

Model Standing Orders: 13. Termination of employment,

15.        Complaints., --16.        Certificate on termination of service.-, 17.    Liability of 17[employer].-- 18.           Exhibition of standing orders.--

The payment of wages and certificate of service should have been supplied to employee on last day in office or within two days.

--“In the event of termination of services, the Company shall be entitled to offset payment of any allowance / advances, leave, any amount that you owe the Company, etc., against salary due and or any other amount due to you “

You may affirm that company adjust the notice pay in lieu of shortfall in notice in FNF statement and supply you the correct FNF statement by registered  post only.

You may mention that a postage prepaid ( as purchased from PO) self addressed envelope is enclosed for sending you the payments (by Bank DD only) and documents as mentioned above by registered  post only.

 You may proceed as per reply from good offices. If good offices deny relief or maintain studied silence you may have to approach lawful authority, court of law.

--‘Your have taken up employment with the Company at your “will’ and you understand and agree that it is for no specified term.”

Is it a MNC?

Does it want to point out that you have accepted AT WILL employment and your post is not permanent?

Whatever it may be whatever ides or clauses it may import and insert in appointment letter it has to operate and function under law of land in India.

(Employment At Will: What Does It Mean?

If you are employed at will, your employer does not need good cause to fire you.)

The designation alone does not decide employee is a workman or not. Your lawyer may ask a set of structured questions and may opine that employee is a workman. The labor laws applicable to a workman limit the choice to employer.

Your lawyer can explain you the merits under Specific Relief Act.( Contract of Personal Service cannot be enforced in a Court of Law implying that if you quit before the Notice period mentioned in appointment letter, the company can recover only  the notice pay, which you are already willing to pay and have written to good offices…..)

It shall be appropriate to approach a competent and experienced labor consultant/service lawyer with copy of standing orders of the company, appointment letter, and any other document relevant to your case. Let your lawyer opine finally on the merits and eventualities.

 

Valuable advice of learned experts/members is sought.


Attached File : 516039462 should employee be forced to serve the notice period.doc, 516039462 delhi shops & establishments act, 1954.pdf, 516039462 model%20standing%20orders.doc downloaded: 459 times
1 Like

rahul (xyz)     21 February 2013

Sir, Thanks a lot for your great response, appreciated a lot.

I spoke to my HR team but they are not ready to give Notice Period BUY-OUT option to me.

If i leave company on 19th march, by dropping them an email that "due to so so condition i wont be able to serve further.

I am ready to pay notice period amount which can be settled in f&f from your end."

So after this will they provide me with relieving letter , exp. letter and f&f statement.

Also please suggest me what else i can do.

Thanks

Kumar Doab (FIN)     21 February 2013

You have posted that:

--“I spoke to my HR team but they are not ready to give Notice Period BUY-OUT option to me.”

It has already been suggested and is reiterated that:

-“Avoid verbal transactions.” “do not limit your self to line management and HR”.

“address all representations in writing under acknowledgment to good offices of appointing authority, MD, Chairman, Company Secretary and request to intervene and provide relief.” “Obtain copies of job advertisement (and see the details for any thing relevant to you) HR policy, service rules, severance/exit policy, standing orders etc..’

If you are communicating from official email id it shall be blocked any time and you won’t be given copies.

In case of your resignation which is your personal matter you may transact by letter thru regd. Post or from personal email id.

Obtain POD from Post Office (internet generated POD under sela and signature of post master is given free and certified copy of post man is against Rs.10/. Obtain both)

-“Explain in writing the reasons of separation and notice period of 38 days under acknowledgment with a copy to you, in notice of resignation or subsequent representation and thus make it part of notice. Conclude that you have given 38 days notice which is sufficient to complete the transfer knowledge/tasks on hand/handing over of charge etc.. , and thus you are fully co operating. You should suggest replacement internal/external ask in writing (submit reminders) for installing replacement for handing over of charge to designated employee/HOD/reporting manager.You may also devise a plan how to complete the so called project in 38 days by you and if anything is left by chance how it can be completed by your manager/superiors/peers/designated employee/replacement etc….Submit in writing the stages of completion of project.”

-“If i leave company on 19th march, by dropping them an email that "due to so condition i wont be able to serve further.’

It shall be better to explain the conditions before final resignation in notice of resignation. If you have not added in notice submit subsequent representations and narrate the representations you have made to HT/line management (mention dates, names….designation…dept…address and brief minutes of discussion).

Be specific, concise and precise. Highlight your contributions, achievement, revenues you have generated, profits you have fetched, services you have rendered, appreciation/medals/trophies/certificates/incentives etc you have earned,  and point out that you have issues, family issues at hand and you should be relieved honorably and gracefully.

The line managers and HR may insert documents/comments in your personnel file that it has been communicated to you in person in office that your resignation has not been accepted. They may create a situation that you have not been attending office and have absconded/abandoned the employment and as per some stupid policy of the company in such a situation relieving letter is not issued…………

You may also request the good offices in writing under acknowledgment to allow you to examine personnel file.

-“So after this will they provide me with relieving letter , exp. letter and f&f statement.”

You are asking to make a forecast, which is not possible.

On line discussion have its own limitations.

Employment is not marriage. Employers do not marry the employees. Resignation/termination is not divorce. Hence there is no emotional burden.

Dealing with employer has become game of chess. Better to learn and master it and play the right moves.

Seek an appointment in writing (under acknowledgment) from good offices to plead your case. If someone calls on phone to deny the appointment write the minutes and build record. If no appointment is given keep on writing. Barge/Move into the good offices and submit your side of the matter emphatically ( like a Chipkoo). Later submit minutes in writing under acknowledgment.

Stir and shake the good offices and resolve the matter in your favor while in employment.

This shall be the best resoloution.

Your silence or your hesitations shall be counted amongst your weaknesses and you will loose the game.

You are closest to your line management, HR, good offices and you know them better than any one else. You would know better than any one else your ability, skill, strategy and chances of your success with your company.

Our hunch is: Most probably NO.

The company may become rigid, adamant, recalcitrant, vindictive, zealous and may adopt penultimate approach.

 

If you have favorable record in writing it shall help you. The transitions shall be smooth, less complicated.

It shall be appropriate to approach a competent and experienced labor consultant/service lawyer with copies of all documents and communications, give inputs in person and spend quality time with your lawyer, understand the remedies in various situations and proceed under expert advice of your lawyer. Let your lawyer structure and draft your representations and build record in your favor.

The Labor Inspector may want to give notice and this may work in your favor and your payments, certificates may be released and the matter may end.

The company may relent and yield to your representation to good offices, demand notice, Notice by Wages Inspector, Inspector under SE Act, and legal notice by your lawyer. The option to approach civil court is there too.

Kindly proceed as deemed fit at your end.

Valuable advice of learned experts/members is sought.


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