Hi respected seniors of this community,
I have seen many contradictory statements in different forums regarding the way and process of ending employer - employee relationship. So I'm putting forward a very basic question due to my unawareness of law.
If an employee (Suppose working for a month or two - during probation) wants to end the relationship with his employer when does it actually end?
1. If he resigns and serves the notice period mentioned if any then on his last working day.
2. If he resigns with immediate effect and doesn't serve the notice period but willing to buy back the notice period then once he pays the full amount then only the relationship stands cancel.
3. If he resigns with immediate effect and is willing to buy back the notice period, even if his company doesn't accept the resignation on the day of resignation the agreement stands cancel.
In first two options an employee can be properly relieved I guess. But if somebody resigns with immediate effect and mentions in his resignation letter that he is ready to buy back notice period as per employment agreement and the employer doesn't accept it for may be say 10-15 days or may be more than that then can the employee say that his relationship ended the day he put down his papers? Because theoretically he intended to buy his full notice period so does he need an acceptance on resignation in this case? Or without that he can claim the agreement is over.
If he needs an acceptance then also why?
Awaiting some views on it.
From India, Bengaluru
I have seen many contradictory statements in different forums regarding the way and process of ending employer - employee relationship. So I'm putting forward a very basic question due to my unawareness of law.
If an employee (Suppose working for a month or two - during probation) wants to end the relationship with his employer when does it actually end?
1. If he resigns and serves the notice period mentioned if any then on his last working day.
2. If he resigns with immediate effect and doesn't serve the notice period but willing to buy back the notice period then once he pays the full amount then only the relationship stands cancel.
3. If he resigns with immediate effect and is willing to buy back the notice period, even if his company doesn't accept the resignation on the day of resignation the agreement stands cancel.
In first two options an employee can be properly relieved I guess. But if somebody resigns with immediate effect and mentions in his resignation letter that he is ready to buy back notice period as per employment agreement and the employer doesn't accept it for may be say 10-15 days or may be more than that then can the employee say that his relationship ended the day he put down his papers? Because theoretically he intended to buy his full notice period so does he need an acceptance on resignation in this case? Or without that he can claim the agreement is over.
If he needs an acceptance then also why?
Awaiting some views on it.
From India, Bengaluru
What I have understood after reading a few threads that when an employer terminates an employee with immediate effect the contract gets terminated. Then the employer goes for f&f and pay the due amount to the employee. But the last working day is the day when the employee gets terminated and that's when the agreement also gets terminated.
Similarly when an employee resigns with immediate effect the agreement gets terminated, then the employer will calculate the f&f and the employee has to pay the notice period in lieu off in mentioned in the agreement.
In both the cases nobody requires an acceptance from the other party. Employer doesn't need acceptance of employee to terminate him with immediate effect, similarly employee doesn't need an acceptance of his resignation with immediate effect.
Please correct me if I'm wrong from legal perspective.
From India, Bengaluru
Similarly when an employee resigns with immediate effect the agreement gets terminated, then the employer will calculate the f&f and the employee has to pay the notice period in lieu off in mentioned in the agreement.
In both the cases nobody requires an acceptance from the other party. Employer doesn't need acceptance of employee to terminate him with immediate effect, similarly employee doesn't need an acceptance of his resignation with immediate effect.
Please correct me if I'm wrong from legal perspective.
From India, Bengaluru
Agreement here is a contract that is governed by the Indian Contract Act. Now contracts create what legal theorists call "Jus in Personam" which means justice against defined persons. In case of other laws it creates "Jus in Rem" which means justice against the world. So in contract act just the outer periphery is defined. This means what cannot be done is defined. Like no contract with illegal or immoral considerations can be made. Other things about the contract like the terms, role and responsibility are left on the parties to decide. I am explaining this because in every case the terms used in the contract must be taken into consideration. What is the power and duties of employer or employee. If they transgress this powers then it breach of contract and damages can be claimed by parties.
Generally during probation employer retains the right of removing an employee, so employer can remove a employee. This will not be called a breach as the specific power is vested in the contract. But in case of employee from the date the employee is inducted into service (Not Training), he is bound by notice period. This can be made out by language used in the drafting of contracts. Generally the drafter will commence the liability of employee from the commencement of job. So his liability to oblige the notice period depends upon the terms of the contract.
From India, Kolkata
180Generally during probation employer retains the right of removing an employee, so employer can remove a employee. This will not be called a breach as the specific power is vested in the contract. But in case of employee from the date the employee is inducted into service (Not Training), he is bound by notice period. This can be made out by language used in the drafting of contracts. Generally the drafter will commence the liability of employee from the commencement of job. So his liability to oblige the notice period depends upon the terms of the contract.
From India, Kolkata
Hi Sir,
Yes the employee is bound by notice period. But what if the contract has a clause of notice period buy back/in lieu off then the employee can resign with any acceptance or permission provided he intends to pay the damage mentioned in the contract for the said act.
In this case the day when he resigns is this day going to be his last working day and relieving day as well? Or he needs employer's acceptance even when it's mentioned in the HR handbook that an employee can resign voluntarily any time provided he intends to pay the damage?
That is exactly what my question is. When an employee is ready to pay the damage does he need the acceptance from his employer on his resignation with immediate effect ?
From India, Bengaluru
Yes the employee is bound by notice period. But what if the contract has a clause of notice period buy back/in lieu off then the employee can resign with any acceptance or permission provided he intends to pay the damage mentioned in the contract for the said act.
In this case the day when he resigns is this day going to be his last working day and relieving day as well? Or he needs employer's acceptance even when it's mentioned in the HR handbook that an employee can resign voluntarily any time provided he intends to pay the damage?
That is exactly what my question is. When an employee is ready to pay the damage does he need the acceptance from his employer on his resignation with immediate effect ?
From India, Bengaluru
For the sake of my understanding I'm thinking that the employee is a confirm one and the employer wants to terminate him with immediate effect he can do it immediately provided he pays the notice period amount to the employee. For that the employer doesn't need an acceptance from the employee.
Then when an employee resigns with immediate effect and ready to pay the damage mentioned in the agreement why ddoes he need a permission/acceptance from the employer?
I as a layman think in both the cases nobody need a permission from the other party provided the party who is breaching the contract is ready to pay the damage amount to the party who suffers.
Am I right? Please do let me know if my understanding is wrong.
From India, Bengaluru
Then when an employee resigns with immediate effect and ready to pay the damage mentioned in the agreement why ddoes he need a permission/acceptance from the employer?
I as a layman think in both the cases nobody need a permission from the other party provided the party who is breaching the contract is ready to pay the damage amount to the party who suffers.
Am I right? Please do let me know if my understanding is wrong.
From India, Bengaluru
For any scenario Employer = employee relationship effectively ends only w
i) hen he/she is actually struckof from the rolls of the employer, or
ii)death or
iii)the last working day or
iv)the date of actual relief
- whichever is early, irrespective of whether he/she resigns or terminated or contract is over etc. Normally, practically, effectively the date upto which his/her salary accrues/paid/to be paid. Either during probation or there after, whether the notice period has commenced or is running or over.
Above events always coincides with end of service with an employer, upto which he/she will be treated as on the rolls of the employer. Thereafter the separation under whatever be the reason for such a separation
The notice period as such is only the indicator by end of which the employee ends his relationship with the employer. Whereas in case of "pay in lieu of notice period" the effective date which is mentioned in the relieving letter is the effective date of separation. It's possible even after ending the notice period an employee may be retained on the rolls till all relevant issues are sorted out. But in any case what is stated in the relieving letter is the final say in this.
From India, Bangalore
i) hen he/she is actually struckof from the rolls of the employer, or
ii)death or
iii)the last working day or
iv)the date of actual relief
- whichever is early, irrespective of whether he/she resigns or terminated or contract is over etc. Normally, practically, effectively the date upto which his/her salary accrues/paid/to be paid. Either during probation or there after, whether the notice period has commenced or is running or over.
Above events always coincides with end of service with an employer, upto which he/she will be treated as on the rolls of the employer. Thereafter the separation under whatever be the reason for such a separation
The notice period as such is only the indicator by end of which the employee ends his relationship with the employer. Whereas in case of "pay in lieu of notice period" the effective date which is mentioned in the relieving letter is the effective date of separation. It's possible even after ending the notice period an employee may be retained on the rolls till all relevant issues are sorted out. But in any case what is stated in the relieving letter is the final say in this.
From India, Bangalore
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