Hi seniors,
I am facing a difficult situation at present. We are a small software development firm and in a transition phase from product based to project based. Recently we have bagged a prestigious foreign project and have included the best employees in that project. The duration of the project is 4 months. Before including the developers we had a face to face discussion with everyone and asked them openly about their plans to leave the company within near future. We have a notice period of 3 months and we informed them that if they resign they will have to serve this entire 3 months for the requirement of this particular project. This whole episode happened just a month back.
Today 2 of these employees have resigned and in the resignation mail itself they wanted a release on 5th September 2008, which is not even a month.
We generally practice of releasing the employees as soon as possible as we firmly believe if anyone wants to leave there is not point in coaxing him/her to continue. But keeping in mind about the current scenario we have asked them to serve the entire notice period. They have leave of 40 days in hand and in our company every leave is a privilege leave.
Can they adjust the notice period with the leave in hand though we don't have any written rule about leave adjustment with notice period in our company.During full and final settlement we give the basic salary of the leaves in hand for them. Please advice if we can ask them to serve the entire notice period to meet the deadline of the project. Is their any law covering the above situation.
I need some suggestion as soon as possible.
Thanks for your suggestion in advance.
From India, Calcutta
3I am facing a difficult situation at present. We are a small software development firm and in a transition phase from product based to project based. Recently we have bagged a prestigious foreign project and have included the best employees in that project. The duration of the project is 4 months. Before including the developers we had a face to face discussion with everyone and asked them openly about their plans to leave the company within near future. We have a notice period of 3 months and we informed them that if they resign they will have to serve this entire 3 months for the requirement of this particular project. This whole episode happened just a month back.
Today 2 of these employees have resigned and in the resignation mail itself they wanted a release on 5th September 2008, which is not even a month.
We generally practice of releasing the employees as soon as possible as we firmly believe if anyone wants to leave there is not point in coaxing him/her to continue. But keeping in mind about the current scenario we have asked them to serve the entire notice period. They have leave of 40 days in hand and in our company every leave is a privilege leave.
Can they adjust the notice period with the leave in hand though we don't have any written rule about leave adjustment with notice period in our company.During full and final settlement we give the basic salary of the leaves in hand for them. Please advice if we can ask them to serve the entire notice period to meet the deadline of the project. Is their any law covering the above situation.
I need some suggestion as soon as possible.
Thanks for your suggestion in advance.
From India, Calcutta
Hi, You can ask them to serve the entire notice period as per the terms of appointment. They cannot ask you to adjust the leaves. Please send a letter to them in reply to their resignations and ask them to complete the notice period. Please make it very clear that you will not relieve them or clear their dues unless they comply.
Umesh Sharma
From India, Madras
Umesh Sharma
From India, Madras
Dear sunetrab10,
I have replied earlier on this issue, Let me clarify once again what is legally correct approach?
First of all lets see what is provision in appointment letter for notice period:
Whether clause of notice period from either side or pay in lieu of notice period clearly mentioned? which is generally incorporated in every appointment letter.
Therefore I presume this clause is applicable in your case too. In this situation employee may request for notice pay in lieu of notice period and management has to resolve amicably not authoritatively because employee is free from his liability to serve the company by offering notice pay in lieu of notice period and employer canot force employee beyond reasonalbe and legitimate period of relieving. In that case employee has legal right to file a suit for his claim for damages or loss due to delay in relieving occured to an employee.
We in India have typical tendancies to press employee for right is might by withholding dues to put pressure on employee to continue has no legal validity and not legally correct or doesnot have legal defence at the loss of opportunities to employees who has resigned for better opportunity.
You may request employee as mutual agreement to resolve the issue by building trust and confidence that he should continue for the period of your request because employees cannot be treated like bonded labours.
Regards
Sawant
From Saudi Arabia
I have replied earlier on this issue, Let me clarify once again what is legally correct approach?
First of all lets see what is provision in appointment letter for notice period:
Whether clause of notice period from either side or pay in lieu of notice period clearly mentioned? which is generally incorporated in every appointment letter.
Therefore I presume this clause is applicable in your case too. In this situation employee may request for notice pay in lieu of notice period and management has to resolve amicably not authoritatively because employee is free from his liability to serve the company by offering notice pay in lieu of notice period and employer canot force employee beyond reasonalbe and legitimate period of relieving. In that case employee has legal right to file a suit for his claim for damages or loss due to delay in relieving occured to an employee.
We in India have typical tendancies to press employee for right is might by withholding dues to put pressure on employee to continue has no legal validity and not legally correct or doesnot have legal defence at the loss of opportunities to employees who has resigned for better opportunity.
You may request employee as mutual agreement to resolve the issue by building trust and confidence that he should continue for the period of your request because employees cannot be treated like bonded labours.
Regards
Sawant
From Saudi Arabia
Hi Sawant,
Let me clarify certain things. As I mentioned in my post that we believe in releasing the employees as soon as possible and in many cases in spite of having a notice period of 3 months we have released them within a month without any salary deduction. So no point in thinking it that the employees are treated as bonded labourers. Atleast not at our company.This question of notice period adjustment arrived as I had mentioned earlier due to the criticality of the resource. I am pasting the rule we have in this regard below:
"From the date of confirmation, being a permanent employee, you or the Company may terminate your service at any time by giving 90 days notice or basic salary in lieu thereof. However due to exigencies of business the Company may at its sole discretion reject the salary in lieu of notice and ask you to serve the entire or part of the notice period. You shall not be deemed to have been relieved of your services except upon issue of a letter by the Company to that effect."
So keeping that clause in mind we can surely deny to adjust the salary in lieu of notice. But the question arrives whether they can mention about their release date as 5th September (giving the resignation on 18th August) or if they can adjust the rest of the days with leaves in hand.
Thanks
Sunetra
From India, Calcutta
Let me clarify certain things. As I mentioned in my post that we believe in releasing the employees as soon as possible and in many cases in spite of having a notice period of 3 months we have released them within a month without any salary deduction. So no point in thinking it that the employees are treated as bonded labourers. Atleast not at our company.This question of notice period adjustment arrived as I had mentioned earlier due to the criticality of the resource. I am pasting the rule we have in this regard below:
"From the date of confirmation, being a permanent employee, you or the Company may terminate your service at any time by giving 90 days notice or basic salary in lieu thereof. However due to exigencies of business the Company may at its sole discretion reject the salary in lieu of notice and ask you to serve the entire or part of the notice period. You shall not be deemed to have been relieved of your services except upon issue of a letter by the Company to that effect."
So keeping that clause in mind we can surely deny to adjust the salary in lieu of notice. But the question arrives whether they can mention about their release date as 5th September (giving the resignation on 18th August) or if they can adjust the rest of the days with leaves in hand.
Thanks
Sunetra
From India, Calcutta
Hi there,
Thanks for your comments and exhibiting notice period clause clause this entails me to view whole issue in the context of labour laws.
I would like to advise in this case better you should take legal opinion of experts.
Because as true IR and HR working professional, in my 17 years experience I learned many things and one among them is We put many clause in appoint letters/ employment agreement including in Wage and Salary Settlements without duly endorsed by Labour commissioner.
We admit that knowingly we add many invalid clause knowing union leaders are not knowledgable enough on certain issue and to please our management and just to keep pressure on labour force or unions but when it is challenged in court that clause are vitiated in the court because they comes under unfare labour practices or colourable exercise of power.
Your 90 days is questionable issue here no employee can wait for 90 days.
No law can protect your 90 days clause because employment practices do not allow prespective employer to wait for 90 days to fill the vacancy fromthe date of interview 30 days notice is acceptable waiting period to join new organization and employee may loose opportunity therefore its not fare. This clause has no legal validity in the eye of laws and for your satisfaction you may obtain legal opinion from the labour laws experts specially who practice in high court level who are well verse with judgement history and interpretations.
regards
Sawant
From Saudi Arabia
Thanks for your comments and exhibiting notice period clause clause this entails me to view whole issue in the context of labour laws.
I would like to advise in this case better you should take legal opinion of experts.
Because as true IR and HR working professional, in my 17 years experience I learned many things and one among them is We put many clause in appoint letters/ employment agreement including in Wage and Salary Settlements without duly endorsed by Labour commissioner.
We admit that knowingly we add many invalid clause knowing union leaders are not knowledgable enough on certain issue and to please our management and just to keep pressure on labour force or unions but when it is challenged in court that clause are vitiated in the court because they comes under unfare labour practices or colourable exercise of power.
Your 90 days is questionable issue here no employee can wait for 90 days.
No law can protect your 90 days clause because employment practices do not allow prespective employer to wait for 90 days to fill the vacancy fromthe date of interview 30 days notice is acceptable waiting period to join new organization and employee may loose opportunity therefore its not fare. This clause has no legal validity in the eye of laws and for your satisfaction you may obtain legal opinion from the labour laws experts specially who practice in high court level who are well verse with judgement history and interpretations.
regards
Sawant
From Saudi Arabia
Thanks Sawant for your valuable suggestions. If you can give me some reference of some labour law experts it would be of great help. Thanks Again Sunetra
From India, Calcutta
From India, Calcutta
Hi there,
Thanks a lot to all of you for this post.
My situation is same as above.
I am working on an international project of organization. I also have notice period of 90 days. I am working in this organization since last one year and have 30 days privilege leave. I want to adjust that against my notice period. There is no specific clause in employee handbook about adjustment of privilege leave.
Please assist me, if they will ask me to serve 90 days notice, can I ask them to adjust my privilege leave? And if they will deny my request, what action can I take? I am ready to pay for my short notice period.
Thanks in advance.
Regds,
Manish
From India, Mumbai
Thanks a lot to all of you for this post.
My situation is same as above.
I am working on an international project of organization. I also have notice period of 90 days. I am working in this organization since last one year and have 30 days privilege leave. I want to adjust that against my notice period. There is no specific clause in employee handbook about adjustment of privilege leave.
Please assist me, if they will ask me to serve 90 days notice, can I ask them to adjust my privilege leave? And if they will deny my request, what action can I take? I am ready to pay for my short notice period.
Thanks in advance.
Regds,
Manish
From India, Mumbai
Thanks for your reply.
In my appointment letter, the following is the clause:
"Leave:30 Days per year
Encashment of unavailed leave will be at the discretion of the management.
Separation: Your services with the company can be terminated at 90 day's notice on either side. However, the company has the right to terminate your services at any time without giving any notice whatsoever, by paying you an amount equivalent to 90 day's salary in lieu of notice.
In case the company accepts your request to relieve you of your work services with the company at a shorter notice, then the company will be entitled o deduct from te final settlement amount, the remuneration attributable to the notice period waived by the company. The remuneration for this purpose shell be the basic salary, management allowance and other allowance as mentioned in 1,2 and 3 above."
I am worried about, if i will put paper, HR people will disallow my leave and ask me to serve 90 days notice period and will not adjust my leave against notice period as well as will not encash my leave.
Please assist me, how can i move forward.
Is they can challenge me in court, if I will not pay them or not serve my notice period??
What document should I take at the time of full and final settlement??
If they will ask me to serve notice period of 90 days, can I deny request and pay them for short notice? I am worried about its legal conscience.
Please reply me and assist me as I don’t have more idea about labor law and HR policy/rights.
Thnxs once again in advance.
Regds,
Manish
From India, Mumbai
In my appointment letter, the following is the clause:
"Leave:30 Days per year
Encashment of unavailed leave will be at the discretion of the management.
Separation: Your services with the company can be terminated at 90 day's notice on either side. However, the company has the right to terminate your services at any time without giving any notice whatsoever, by paying you an amount equivalent to 90 day's salary in lieu of notice.
In case the company accepts your request to relieve you of your work services with the company at a shorter notice, then the company will be entitled o deduct from te final settlement amount, the remuneration attributable to the notice period waived by the company. The remuneration for this purpose shell be the basic salary, management allowance and other allowance as mentioned in 1,2 and 3 above."
I am worried about, if i will put paper, HR people will disallow my leave and ask me to serve 90 days notice period and will not adjust my leave against notice period as well as will not encash my leave.
Please assist me, how can i move forward.
Is they can challenge me in court, if I will not pay them or not serve my notice period??
What document should I take at the time of full and final settlement??
If they will ask me to serve notice period of 90 days, can I deny request and pay them for short notice? I am worried about its legal conscience.
Please reply me and assist me as I don’t have more idea about labor law and HR policy/rights.
Thnxs once again in advance.
Regds,
Manish
From India, Mumbai
Hi,
Thanks for your comment...its really add up to my knowledge. i have a small doubt over calculation of last date of an employee, to be confirmed after utilizing his leaves, will the employee be on roles of the company till the last date, in case we are using his leaves to cut short the notice period.
For example, an employee is having 10 days of leaves in lieu, and he wants to get relieved on 31 Jan, but notice period says last date as 10 Feb, so if we utilize his leaves to shorten the notice period, wht will be his last working day.
Regards,
Vinay
From India, Bangalore
Thanks for your comment...its really add up to my knowledge. i have a small doubt over calculation of last date of an employee, to be confirmed after utilizing his leaves, will the employee be on roles of the company till the last date, in case we are using his leaves to cut short the notice period.
For example, an employee is having 10 days of leaves in lieu, and he wants to get relieved on 31 Jan, but notice period says last date as 10 Feb, so if we utilize his leaves to shorten the notice period, wht will be his last working day.
Regards,
Vinay
From India, Bangalore
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