LIVE Online Course on NDPS by Riva Pocha and Adv. Taraq Sayed. Starting from 24th May. Register Now!!
LAW Courses

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

Arun (Tech Lead)     12 February 2017

Offer letter: termination clause not applicable for probatio

I am working for a startup company of size 20+ from 19th sept-16, till now and I have placed my resignation on 11th jan-17 and agreed to serve notice period of 45days as stipulated in the termination clause.

I just recently found that there is a line probationary clause that says "termination clause is applicable to probation"
Below is the probationary from offer letter,

---Probationary Period---
The Employee shall be on probation for a period of six (6) months from the date of joining.
The Company shall be entitled to forthwith terminate the services of the Employee and this
Agreement at any time during the probation period. The Company may in its sole discretion
extend the Employee’s probation period based on the Employee’s performance, conduct
and/or other factors as the company may deem fit. The Employee’s probation period shall not
be considered to be completed, unless the Employee’sservices are confirmed by the Company
in writing by a Letter of Confirmation. The provisions of Clause 10 shall not apply to a
termination under this Clause.
--- Probationary Period ---

Does this I mean, legally I am not obliged to serve notice period?

P.S.:

My resignation was duly accepted by the management and was already serving my notice period.

Clause 10 is the termination clause and let me know if seniors would like to check that, so I will post it here



Learning

 14 Replies

Akash Kapoor (Owner at Shramsamadhan India)     12 February 2017

Please post your termination clause also.

Arun (Tech Lead)     12 February 2017

@Akash:

Thanks for the quick reply.

Below is my termination clause.

 

Termination
 
10.1 This Employment Agreement may be terminated by the Company by giving to the Employee 45 (forty five) days’ notice in writing or salary in lieu thereof at the sole discretion of the Company.  
 
10.2 Subject to the other provisions of this clause, the Employee may resign from employment by giving to the Company 45 (forty five) days’ notice in writing; provided that the Company in its sole discretion will have an option to accept the same and relieve the Employee prior to completion of the stipulated notice period of 45 (forty five) days, without any pay in lieu of the notice period. For the purpose of this clause salary shall be the salary last drawn by the Employee and include all components except employer’s contribution to Provident Fund and any compensation linked to performance.
 
10.3 If at any time, in the opinion of the management of the Company, which shall be final and binding, the Employee is involved in or is accused of or is guilty of dishonesty, negligence or indiscipline in discharge of the Employee’s duties or of any other conduct, act or omission considered by the management of the Company to be detrimental to the interests of the Company, or in violation of one or more terms of this Agreement or any terms, policies, guidelines, conditions or agreements incorporated by reference in this Agreement, the Employee’s relationship and employment with the Company shall be liable to be terminated with immediate effect, without any prior notice or payment of salary in lieu thereof.  
 
10.4 Unauthorized absence or absence without permission from duty on the part of the Employee shall entitle the Company to terminate this Agreement forthwith without prejudice to the Company’s right available under the applicable laws to initiate legal action against the Employee including without limitation to recover any damages from the Employee.
 
10.5 If at any time, in the opinion of the management of the Company, which shall be final and binding, any conduct or act of the Employee, or any allegation in respect thereof, may require any enquiry or investigation, the Company may suspend the Employee with immediate effect pending the enquiry or investigation.   
 
10.6 Upon termination of this Agreement or upon suspension, the Employee shall promptly return all letters of authority, powers of attorney or Employer’s property and material in his/her possession to the Employer.  
 

Ritesh Maity (Labour Law Advocate)     12 February 2017

Clause 10.2 says that an employee is required to serve a notice period of 45 days. It clearly says that an employee. You do not get the status of an employee during the probationary period though other statutory benefits may be same with other permanent/ confirmed employees.

I could not find any clause for serving notice period for a probationer/ unconfirmed employee.

Hence, I do not think you are required to serve the notice period during your probationary period. 

Arun (Tech Lead)     12 February 2017

@Ritesh

Thanks for your reply.

 

I am currently serving notice period since 12th Jan-17, and on 25th Jan-17 i had to leave because of my mothers medical condition and i had already informed HR and team on 25th verbally and through email on 1st Feb.
For reasons i have no clue about and by the time i had left the company I was in very good terms with management, team and HR.
But they have sent many emails on 8th Feb claiming i am absconding and on unauthorized absence, and many more disciplinary issues and have withheld my January salary and previous months compensations.

If notice period doesnt apply to me, can I terminate the employment agreement and still get my due salary and compensations?

Ritesh Maity (Labour Law Advocate)     12 February 2017

Since they are sending you several emails levelling charges against you, it is necessary to give them proper reply denying the charges (you can take legal assistance for such reply too) and also demand your outstanding salary, if due.

It seems that they are levelling the charges against you only to deprive you of your legitimate dues.  

Kumar Doab (FIN)     12 February 2017

It is believed that it is some IT/ITeS company.

Confirm!

 

Before you proceeded on leave, was any memo, stinker, SCN issued to you on alleged discipline related matters?

You must mention that on dated……………..you had informed Mr/Ms……………….in office about leave and reason ( Mother’s sickness) and obtained sanction of leave in principle and also informed by email dated…………………..(copy attached) and till the day you proceeded on leave there was never any discipline related issue with you.

Kumar Doab (FIN)     12 February 2017

You are in which state?

What is our nature of duties, on record?

How much person report to you?

Do you have any power to sanction (not just recommend) leave/increment/appoint/terminate/appraise/conduct inquiry/issue SCN etc etc etc?

Can anyone modify/amend/cancel your sanction/recommendations?

Has your notice of resignation been accepted in writing?

What is mentioned in it?

What was mentioned by you in notice of resignation?

Keep the mother's sickness related documents copy with you.

 

Arun (Tech Lead)     12 February 2017

@Kumar

Please find my below comments.

1) Which State: Karnataka. Nature of company is a small startup company

2) Nature of duties: Principal Software Developer working on RnD, build base design and development which then the team can pick up.

3) Number of persons reporting to me: All report directly to the Director of the company who is in london. Locally in bangalore I help the team with the development

4) I didnt understand the question very clearly, but if the question is "whether i have any power to sanction leave/increment/etc to others?", then NO. they are all decided by the director from London.

5) Can anyone cancel/amend/cancel my sanctions? Not applicable, since I dont have sanction authority and it is with the Director in London.

6) Has my resignation accepted? Yes, with even a emailed message from Director saying that they would like to take me back after my medical issues are resolved. Along with that message , they had asked me whether I would be able to spend 60 days of notice, for which replied back that mine and fathers medical condition getting worse day by day and I cannot extend it further.

7) What did i mention in my resignation? My chronic back pain(caused by the bad chairs at office since day one and management did acknowledge the same and they are chaning the chairs now  ) is a known history for everyone at the office and including the management and a series of medical illness on my family. I had just mentioned the same and for the I would like to resign and take a break, and I would like to serve the 45 days notice period to make the transition smoother.

 

I have already replied to all their emails of allegations and provided them with all the medical reports of my mother.

 

Also, until the day of 6th Feb(when the emails of accussation started coming), I never had any message, emails, warning, show cause notice of any form.

The management did recognise me as key and valuable resource and thats why they even mentioned in my resignation that they would like to take me back after my issues sorted.

 

Kumar Doab (FIN)     12 February 2017

There are IT/ITeS unions in State of Karnataka and trade unions also.

They can support and help you.

It seems to be a feeble attempt to entangle you in cockfights.

You have a record to support.

You do not seem to be on weak foot.

You are in probation and contract of employment should be equitable and not arbitrary.

By equitable discretion you should also be in aposition to terminate the employer-employee relation without any notice.

Handle skillfully and get your relieving letter with good comments (avoid without comments/adverse comments), salary slip of all months, NOC/NDC, handover of charge/assets, Correct FnF statement showing earned wages/bonus/leave encashment etc, Form16 as per correct FnF statement, PF a/c slips, ESIC card etc and relax.

If you wish,Submit final resignation under proper acknowledgment quoting acceptance of resigantion supplied to you and affirm to hanodover assets (if any) .

Kumar Doab (FIN)     14 February 2017

You may also go thru the link sent to you.

 

Arun (Tech Lead)     14 February 2017

@Kumar Doab

Since the IT/ITes/Startups are excempt from  Industrial Employment (Standing Orders) Act, 1946, are employees/probationer eligible for legal provisions under Industrial Act?

Kumar Doab (FIN)     14 February 2017

@  Arun Tech Lead 

Which Industrial Act you are referring to?

The file that I have sent to you is self explanatory and could have been sufficient, to answer your last query.

The Dept.of Labor Karnataka has also maintained list of trade Unions and Labor Officials on its website.

https://labour.kar.nic.in/labour/trade-unions-list.htm

The list of IT/ITeS employees unions should have been with you. You must be aware and/or you can find out locally, the IT/ITeS employees unions that are embraced by Trade Unions.

Get in touch with them and have their support and apply if the need be.

 You may also go thru:

Karnataka Shops & Estbs Act; Sec,2(e,g,h,p),3,6A,7,8,15,16,18,21,27,29,39(1,7)

https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/94256/110576/F-1357361103/IND94256.pdf

Your resignation has been accepted.

Resolve the matter with your own skills, first.

1 Like

Arun (Tech Lead)     14 February 2017

Thanks a lot for your details.

I just contacted IT/ITes Employee Center and explanied them my situation and they agreed to help me.

Kumar Doab (FIN)     14 February 2017

You have acted wisely.

You are an employee.

Employee should be Properly informed and properly supported.

Employee should always, retain access to employee's/trade unions and a very able counsel/law firm specializing in Labor/service matters.

 

Get back if you still have issues.

If your union also want any support let them come thru you.

 

 

 


Leave a reply

Your are not logged in . Please login to post replies

Click here to Login / Register  


Start a New Discussion Unreplied Threads



Popular Discussion


view more »




Post a Suggestion for LCI Team
Post a Legal Query