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

gulshan saraswat (Sr. manager)     07 April 2013

Termination after resignation has been accepted

Experts,

I am putting up here a case which would attract professional opinions, references and suggestions from you. It involves termination after acceptance of resgination by the  company upon BREACH UNDER EMPLOYMENT AGREEMENT

Please allow me to submit information in a chronological manner within the same thread and hope sooner we will achieve potential case points and that will be a great help to me.


The incident dates back to March 2013. On March 21st i resigned from the company and it was accepted by the company on the same date.  However, by mistake i had sent a mail from my official ID to a third party that had company information. I got a notice from the company on 3rd April about breach of contract and they said in the mail that they have terminated me. I am posting the mail below: -

NOTICE OF BREACH UNDER EMPLOYMENT AGREEMENT

The Company has found that you have disclosed Sensitive Confidential Information to an unauthorized third party by sending email dated April 3, 2013 at 12:21 PM with subject line: Campaign Report for India.. from your Blackberry Phone.

Upon disclosure of such critical and confidential information to an unauthorized third party on your part there has been WILLFUL NEGLIGENCE, GROSS MISCONDUCT, UNETHICAL BEHAVIOUR, DISLOYALTY, MATERIALLY DETRIMENTAL BEHAVOIUR TO THE INTERESTS OF THE COMPANY BY YOU.

Further, you are in DIRECT BREACH of the following terms and conditions of your Employment Agreement dated March 12, 2012 with Vserv Digital Services Ltd. (herein after referred to as the company) :

 Clause 3 (a) under Schedule II – Protection of Confidential Information:

Employee agrees that at all times during or subsequent to his/her employment, he will hold in trust, keep confidential and not disclose to any third party or make any use of the Confidential Information except for the benefit of the Group Company.  Employee further agrees not to cause the transmission, removal or transport of Confidential Information from the Group Company’s places or business or such other place of business specified by the Company, without prior written approval of the Company

 

Clause 5 – Termination of Employment

(a)                           Delivery of Documents and Data Upon Termination of Employment:  In the event of termination (voluntary or otherwise) of Employee’s employment with the Company, Employee agrees, promptly and without request, to deliver to and inform the Company of all documents and data pertaining to his employment and the Company’s Confidential Information, whether prepared by Employee or otherwise coming into his/her possession.  Employee will not retain any written or other tangible material containing any information concerning or disclosing any other Company’s Confidential Information except that financial information that he/she is entitled to possess in the capacity of an Employee.

(b)                           Obligations of Employee Subsequent to Employment:  In the event of termination of Employee’s employment with the Company, Employee agrees that he will protect the value of the Confidential Information and prevent the misappropriation or disclosure thereof.  Employee will not disclose or use to his/her benefit (or the benefit of any third party) or to the detriment of the Company any Confidential Information.

 

Clause 4 under Schedule I – Conflict of Interest:

The Employee is prohibited to use or release to a third party any data on decisions, plans, competitive bids or any other information which might be prejudicial to the interest of the company.

 

            Further to above, as per Clause 6 under Company’s Leave Policy, “employees are not entitled to any leave during notice period. Pre approved leave during notice would also be nullified by the management if required”. By remaining absent from duty during the notice period you are in direct violation of the Company’s Leave Policy.

 

As a consequence to your breach and violation of company’s policies, company hereby terminates your employment with  immediate effect and without incurring any obligation or liability towards termination.

Company calls upon you to forthwith cease and desist from any usage of Confidential Information belonging to the company. You are also called upon to forthwith return all information/documents available with you or within your control immediately to the company.

You are further called upon to confirm in writing and in person to your reporting  manager;

(1)   Admission to your breach of Employment Agreement with the company

(2)   On whose demand have you disclosed the confidential information belonging to company

(3)   You have immediately ceased use of all the Confidential Information belonging to the company

 Kindly note that if you fail on your part to comply with above, immediately upon receipt of this Notice, company reserves the right to institute both civil and/or criminal proceedings against you and/or the concerned person/s for which you alone shall be responsible for both cause and consequences thereof. Company also reserve the rights to claim rendition of accounts and damages from you.

My question is can the company terminate me after i have resigned and what is it that i can do now?



Learning

 9 Replies

Kumar Doab (FIN)     07 April 2013

You have posted that:

1.  “On March 21st i resigned from the company and it was accepted by the company on the same date.“

{You had tendered notice of resignation or resignation with immediate effect. The company issued just an acknowledgment of notice of resignation or acceptance of resignation after expiry of notice period or acceptance of resignation with immediate effect i.e. from the close of office hours on March 21st. If your resignation was accepted w.e.f. March 21st then you were discharged from office and duty. }

2.  By remaining absent from duty during the notice period you are in direct violation of the Company’s Leave Policy.”

{ If your resignation was accepted w.e.f. March 21st then you were discharged from office and duty. Did you apply for any leave during notice period starting from March 21st and was it approved and do you have the copy?}

Both the statements posted by you as at 1 and 2 are conflicting.

Before the resignation is accepted company can terminate.

Company has declared the grounds of termination in order of termination issued by it.

Company has also stated:

Company calls upon you to forthwith cease and desist from any usage of Confidential Information belonging to the company. You are also called upon to forthwith return all information/documents available with you or within your control immediately to the company.”

Which you should do.

“You are further called upon to confirm in writing and in person to your reporting  manager;

“(1) Admission to your breach of Employment Agreement with the company”

“Company also reserve the rights to claim rendition of accounts and damages from you.’’. How damaging is the information sent from your email id to third party?

The touch screen smart phones are very sensitive. There are chances of inadvertent error happening which might not be intentional.

Now before your lawyer has examined all documents including the one which has been sent by you by email to third party, appointment letter issued to you, standing orders of the company, conduct rules, leave policy, misconduct, appeal rules, etc…notice of resignation/resignation submitted by you, acceptance issued by company, your inputs in person, you may refrain from submitting a statement in writing.

Approach a competent and expedrienced service lawyer as ap.

Valuable advice of learned experts/members is sought.

 

1 Like

gulshan saraswat (Sr. manager)     07 April 2013

hi Kumar,

 

i am grateful for your reply, i have answered your question pointwise below :-

1.  “On March 21st i resigned from the company and it was accepted by the company on the same date.“

{You had tendered notice of resignation or resignation with immediate effect. The company issued just an acknowledgment of notice of resignation or acceptance of resignation after expiry of notice period or acceptance of resignation with immediate effect i.e. from the close of office hours on March 21st. If your resignation was accepted w.e.f. March 21st then you were discharged from office and duty. }

My resgination : The contract requires either party to give a notice of 45 days, however I
would be obliged if I could cease work immediately. I quite liked your idea
of immediate settlement that you discussed in our conversation yesterday in
which the notice period is waived off by the employer and dues settled
immediately. I will assume this is satisfactory unless otherwise noted.


The employer replied :-

We have accepted your resignation with immediate effect. In order to achieve
a smooth handover and exit formalities you are required to report to office
on 26th and 27th of March 2013.

2. By remaining absent from duty during the notice period you are in direct violation of the Company’s Leave Policy.”

{ If your resignation was accepted w.e.f. March 21st then you were discharged from office and duty. Did you apply for any leave during notice period starting from March 21st and was it approved and do you have the copy?

i had applied for leave on 20th March to which my superior replied : -

Dear Gulshan,

Can't approve this leave as it is a quarter end. And we are waiting for
your revert on the discussion we had last evening.

Also the smart phone that i use is not a touch screen and i still do not have a signed copy of the appoointment letter from the company after a year though i had signed it.

Let me know if you require any more information kumar

 

Kumar Doab (FIN)     07 April 2013

You have posted that:

----“The employer replied :-

“We have accepted your resignation with immediate effect.”

If this statement of competent personnel of the company is dated March 21st, then your resignation has been accepted w.e.f. March 21st.

---“ In order to achieve
a smooth handover and exit formalities you are required to report to office on 26th and 27th of March 2013.”

There seems to be no ambiguity in date of acceptance of resignation and confirmation of acceptance of resignation as dates completion of exit formalities has also been issued to you.

Did you appear on these dates for handover/exit formalities and do you have the acknowledgment/evidence of your attendance?

If yes it is in your favor.

---“ And we are waiting for
your revert on the discussion we had last evening.”

{ Apparently separation has been discussed.}

“I quite liked your idea
of immediate settlement that you discussed in our conversation yesterday in
which the notice period is waived off by the employer and dues settled
immediately.”

{ Apparently separation has been discussed and finalized.}

The leave application was dated 20th March, and leave has not been approved. The resignation is dated March 21st and has been accepted w.e.f. March 21st.

The access to emails etc should have been blocked on March 21st, Blackberry should have been collected on March 21st,  or 26th ………..

Do you have the copy of HR process mentioning step by step well laid process depicting how, on which date, and by whom access to emails, file etc has to be blocked in case of resignation/termination?

Apparently the resignation has been accepted.

Now the company should file a suite/case than issuing termination.

Refrain from submitting a statement in writing.

Approach a competent and experienced service lawyer as ap.

Let your reply be structured, drafted by a lawyer. Let your lawyer’s opinion be final on all points discussed in this thread.

In the meantime apply your rapport, goodwill, persuasion, persistence, reasoning, negotiation skills, keep the channels of communication open and remain amiable.

Valuable advice of learned experts/members is sought.

gulshan saraswat (Sr. manager)     07 April 2013

1) Did you appear on these dates for handover/exit formalities and do you have the acknowledgment/evidence of your attendance?

No i did not appear on these dates. And i own the blackberry device it is not company owned.

2) Do you have the copy of HR process mentioning step by step well laid process depicting how, on which date, and by whom access to emails, file etc has to be blocked in case of resignation/termination?

No

They did not block my emails after my resignation.

Kumar Doab (FIN)     07 April 2013

You have posted that:

---“i own the blackberry device it is not company owned.”

‘They did not block my emails after my resignation.”----They should have.

---“ No i did not appear on these dates.”

Company has probably not issued any reminder on it to you.

You may affirm to handover the charge on any other date which is mutually convenient/as issued by company.

Aparently your resignation has been accepted.

Let your lawyer’s opinion be final on all points discussed in this thread.

Approach a competent and experienced service lawyer as ap, with copies of all docs and records and give inputs in persona and proceed under expert advice of your lawyer.

Valuable advice of learned experts/members is sought.

gulshan saraswat (Sr. manager)     07 April 2013

kumar, i have a query, in response to their mail can i ask for my copy of the appoinment letter? also how strong is my case?

thanks

Kumar Doab (FIN)     08 April 2013

You have posted that:

---“can i ask for my copy of the appoinment letter?”

“i still do not have a signed copy of the appoointment letter from the company after a year though i had signed it.”

You can certainly ask. You can narrate the number of times you had asked for it in office but it was not supplied to you.

However consult your lawyer and let him structure it for you.

---‘However, by mistake i had sent a mail from my official ID to a third party that had company information.”

What is the content of the information in this email?

What is so damaging for the company?

If company is so much concerned it should have blocked the access, after acceptance of the resignation.

On line discussions have its own limitations.

It is felt that although you are perturbed, you are hesitant to approach your lawyer.

Finally: it is reiterated that by now you should have approached a competent and experienced service lawyer as ap, with copies of all docs and records and given inputs in persona to proceed under expert advice of your lawyer. Let your lawyer structure all of your replies, communications, and representations.

Your lawyer would know how to handle the matter and defend you.

You may avoid proceeding on your own.

You had resigned and your resignation was accepted.

Let your lawyer’s opinion be final on all points discussed in this thread.

Valuable advice of learned experts/members is sought.

gulshan saraswat (Sr. manager)     08 April 2013

Hi Kumar,


The email that i had sent contanined information on the business done by the company month wise to the person who was the sales head of the company till february 2013. So the only information that he has is the march information nothing else.

And yes you are right i am hesistant to approach my lawyer. but after your mail i think i should.


Thanks

Kumar Doab (FIN)     08 April 2013

The sales data of every company is available in market e.g. ORG. C-Mark etc….Every company buys competitor’s data.

Your resignation was accepted; hence company should remove the order of termination from your personnel file.

Since appointment letter copy was never supplied to you, you may request the company to allow you to examine your personnel file and grant you an appointment.

You may have the temptation of writing too much and everything.

You must not accept in writing that you had forwarded the email.

{If the official email is password protected then in addition to employee usually the administrator in the company and sometimes HR/Line manager/IT manager also has the access to password the password. However in your case the email was sent from Blackberry owned by you. Ayer may be in a position to tell you how to counter it.}

You could have avoided sending email.

The best place to fight a corporate is in market place.

Firm up your next venture preferably with an employer who would stand by you.

Your lawyer may not like to reveal everything and may like to keep the cards close to chest.

Dealing with employer has become a game of chess. Your lawyer would know the moves.

Labor/service law is altogether different field. In each city there are few advocates who specialize and practice only in labor/service law. They are well known.

While you approach your lawyer, appraise on everything including separation was discussed and finalized. Do not conceal anything.

Understand the merits and strategy from your lawyer, and proceed under expert advice of your lawyer.

Many good service lawyers and your lawyer too, may prefer to draft every communication you need to submit and provide you the printouts of structured replies/representations which you may submit by redg. post only.

Let your lawyer’s opinion be final on all points discussed in this thread.

Valuable advice of learned experts/members is sought.


Leave a reply

Your are not logged in . Please login to post replies

Click here to Login / Register  


Recent Topics


View More

Related Threads


Loading
Start a New Discussion Unreplied Threads



Popular Discussion


view more »




Post a Suggestion for LCI Team
Post a Legal Query