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Bharat (Engineer)     27 October 2013

Overseas resignation problem

Hello,

I am currently deputed at an overseas location through my current employer. Deputation is not complete yet. But due to some reasons I have decided to resign. Wanted to understand the implications of resigning outside home country. I have explained the policy and the deputation agreement clause below:

1. For resignation at abroad location, employees must refer to the home country separation policy. No exit from the company will be processed for deputed employees, employee need to return to the home location for exit formalities. However the employee can serve the notice period in the abroad country based on the needs, approved by the superiors and human resource. However this is not an entitlement to call upon and agreement for these will be taken based on business needs and requirements

2. The home location human resource people will get in touch with the employee for full and final settlement and final exit from the organization, taking into account the terms and conditions appertaining to the employee's own deputation agreement and compliance requirements.

3. Non-immigration agreement clause:

I shall not accept any employment or assignment with any other company, who has been introduced to me during the deputation, or employment by any competitor of my current employer or any other employer in host country or other countries while I am on deputation. If I violate this agreement, the current employer is entitled to recover liquidated damages and seek injunctive relief in a court of law, with jurisdiction, in the country of deputation or any other country.

4. Deputation agreement

Breach of agreement by the employee:

Failure to complete the deputation: The parties recognize and agree that the employer is sending the employee on this deputation with the understanding and expectation that the Deputation (and all assignments of the deputation) will be successfully completed by the Employee to the Employer's satisfaction. The Employee acknowledges and agrees that by leaving any assignment on this Deputation before the completion would automatically result in breach of terms and conditions of the agreement.

Taking the above points into consideration, will there be any implications if I put down my papers from host location (abroad location)?

Please advise.

Thank you.



 3 Replies

Kolla V. Raman (Founder Chairman of Global Lgal Services)     27 October 2013

Deputation agreement mentioned clause 4 applies to you.

Bharat (Engineer)     27 October 2013

Sir,

Thanks for the response.

The human resource policy allows to resign but says:

1. For employees resigning in outside home country, the minimum notice period is 3 months". So, in accordance with the policy, I will be resigning and serving the full notice period as per the policy.

2. If the employee is covered under deputation agreement and resigns at overseas location (gap between the exit date and submitting resignation is less than three months), he or she is liable to pay pro-rated liquidated damages which is calculated based on the number of completed months served, after date of resignation/reporting to home country.

Still the clause 4 of deputation agreement applies?

Please advise.

Kumar Doab (FIN)     29 October 2013

 

 

First of all it is not understood what is so special in this  deputation and what is the extra ordinary favor granted by the employer to employee that there is a need to sign a separate ‘Deputation Agreement’ with clauses like ‘Liquidated Damages’.

 

 

 

 

 

What benefit employee is deriving from this ‘Deputation’ that employer needs to be compensated by employee by ‘Liquidated Damages’ in addition to Notice pay?

 

Apparently the conditions are one sided tilted towards the employer as if employer chooses to separate then employee can serve notice period too abroad however if employee wishes to separate ‘No Exit’ shall be processed………….

 

Then employer can initiate litigation in country(ies) chosen by him…………….for recovering liquidated damages and also seek injunction……………..from joining another company.

 

The Indian Courts of law have been consistently been denying to enforce non compete clauses viewing these as restraint of trade violative of Sec27 of Indian Contract Act and void.

 

This may not true in case of all countries.

 

It shall be appropriate to show all documents to a competent and experienced labor consultant/service lawyer in India and current country of location give inputs in person, under stand the merits and proceed under expert advice of the lawyer.

 

Before you submit notice of resignation in haste submit pointed communication stating that no task/assignment is pending as on date and by the expiry of notice period nothing shall be pending as you shall be completing all tasks assigned on routine basis…………….

It shall also be appropriate to take the superiors and HR in confidence and obtain from them in writing that you do not need to return to hone country for exit formalities and you can be relieved after expiry of notice period from current country without any need to pay any liquidated damages and post termination no clause of any agreement e.g…………….deputation agreement, non compete clause (and any other) shall be  applicable to you.  

  

 


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