Since the company wants you to leave earlier by a month, SMILE! for you are entitled to collect the salary and other dues for the full notice period - i.e. 3 months, take that money go on a honeymoon, or start looking for another job without any professional commitments.
From Pakistan, Karachi
78From Pakistan, Karachi
Dear Prabhat,
If I want to leave a company, the company legally requires three months (or whatever was in offer letter) notice. Since I am the one submitting resignation I do not need the notice period. Hence the onus lies on the company when it relieves you.
Similarly, if the company gives you notice, the onus is on you to accept the notice. you may decide to leave before the notice period. Since the company has given the notice, it may pay you for the notice period. Similarly if I give the notice, I may pay for the notice and leave early.
A different situation to understand who is giving notice to whom-
in disciplinary process, I am served a notice by the company to reply within 15 days, but I may choose t reply in 1 day. the time period for the next step starts from the day of my submission of reply, not the original notice period. that was for my benefit which I choose not to avail (here it is my wish, since I am the recipient).
Manoj
9868933248
From India, Delhi
If I want to leave a company, the company legally requires three months (or whatever was in offer letter) notice. Since I am the one submitting resignation I do not need the notice period. Hence the onus lies on the company when it relieves you.
Similarly, if the company gives you notice, the onus is on you to accept the notice. you may decide to leave before the notice period. Since the company has given the notice, it may pay you for the notice period. Similarly if I give the notice, I may pay for the notice and leave early.
A different situation to understand who is giving notice to whom-
in disciplinary process, I am served a notice by the company to reply within 15 days, but I may choose t reply in 1 day. the time period for the next step starts from the day of my submission of reply, not the original notice period. that was for my benefit which I choose not to avail (here it is my wish, since I am the recipient).
Manoj
9868933248
From India, Delhi
Qoute
"Dear jhadevbrat
I differ with your contention that it will be the right of employer to relieve before three months.
This is only acceptable in case the employer pays the notice pay for thee remaining period of the notice i.e. 3 months.
This matter has also been discussed several times on this forum. Irrespective of whether your company practices this; it can not be termed fair or legal. Else, companies will keep having a longer notice period (say six months or 1 year) and whenever an employee puts up a resignation notice, they can RELIEVE that employee Without Pay !!!!
The best way to understand such unfairness is to view things from the other side; having empathy i.e. put oneself in place of the employee. Then the matter will become crystal clear."
Unquote
Dear Mr. Raj Kumar Handsa,
Nice to go through your views on my opinion.
However, I would again like you to consider the following before you reach to any conclusion:
Any contract whether an employment contract or otherwise, is to be regulated by the Law of Contract, which provides equal rights and casts equal responsibilities on both the paries in case of two party agreement.
In the instant case, it is employees decision to terminate the contract and as a result employer is getting adversely impacted. If the contract requires both the parties to give three months notice (or salary in lieu thereof ) and employee wants to be relieved after one month only, in such case subject to acceptance of employer, employee may be relieved after one month but employee would have to deposit two month's salary. Employee has always an option to buy out his notice period.
Likewise, when employer decides to terminate the contract, it is his responsibility to give three months notice( or salary in lieu thereof). Like employee, employer also has right to buy out the notice period if he so desires and by paying three months salary, he may relieve the employee forthwith.
Therefore, employer would be required to pay salary only when it is his decision to terminate the contract and not when employee terminates the contract(resigns). The law does not and cannot provide for either party to cause an inconvenience to other party and at the same time get compensated as well.
From India, Pune
"Dear jhadevbrat
I differ with your contention that it will be the right of employer to relieve before three months.
This is only acceptable in case the employer pays the notice pay for thee remaining period of the notice i.e. 3 months.
This matter has also been discussed several times on this forum. Irrespective of whether your company practices this; it can not be termed fair or legal. Else, companies will keep having a longer notice period (say six months or 1 year) and whenever an employee puts up a resignation notice, they can RELIEVE that employee Without Pay !!!!
The best way to understand such unfairness is to view things from the other side; having empathy i.e. put oneself in place of the employee. Then the matter will become crystal clear."
Unquote
Dear Mr. Raj Kumar Handsa,
Nice to go through your views on my opinion.
However, I would again like you to consider the following before you reach to any conclusion:
Any contract whether an employment contract or otherwise, is to be regulated by the Law of Contract, which provides equal rights and casts equal responsibilities on both the paries in case of two party agreement.
In the instant case, it is employees decision to terminate the contract and as a result employer is getting adversely impacted. If the contract requires both the parties to give three months notice (or salary in lieu thereof ) and employee wants to be relieved after one month only, in such case subject to acceptance of employer, employee may be relieved after one month but employee would have to deposit two month's salary. Employee has always an option to buy out his notice period.
Likewise, when employer decides to terminate the contract, it is his responsibility to give three months notice( or salary in lieu thereof). Like employee, employer also has right to buy out the notice period if he so desires and by paying three months salary, he may relieve the employee forthwith.
Therefore, employer would be required to pay salary only when it is his decision to terminate the contract and not when employee terminates the contract(resigns). The law does not and cannot provide for either party to cause an inconvenience to other party and at the same time get compensated as well.
From India, Pune
Dear jhadevbrat
When you read both of your paras, it is what I meant exactly.
If notice period is 3 months on either side; and an employee gives a notice of 3 months; he has complied with his side of the contract.
The employee accordingly may have made all his arrangements for taking up another means of livelihood.
The company now has 3 months to find or train a replacement.
If they need more time, they may ask the employeee to continuw; which the employee may or may not accept.
In case, the company finds a replacement or does not require the services of thee employee from the very next day; they can relieve the employee immediately.
But, since they have received a due notice; and they are also bound by the 3 months notice clause in the contract. They are equally liable to PAY OUT the notice salary, if they want the employee out before 3 months.
An employee giving notice of resignation; does not empower the company to DENY HIM the notice period or notice pay by RESORTING to the EXCUSE that he has given a notice first.
(Only exception can be a mutual understanding; where the employee accepts to be relieved earlier; just as many companies WAIVE the notice pay upon request.)
Hope the matter is clear. If not, then, I shall again request that instead of viewing it from just the employer's side; one should place himself in the employee's shoe and think how one will feel, if complying with the terms, one puts up a notice of 3 months, and the employer terminates his service the next day without giving any salary in lieu (thus depriving him of a salary of months as well as making him un-employed during theat period).
This is the reason (that company is also liable to give notice pay) that companies do not have longer notice period. Else what stops a company from having a notice period of years; to prevents attrition.
Warm regards.
From India, Delhi
When you read both of your paras, it is what I meant exactly.
If notice period is 3 months on either side; and an employee gives a notice of 3 months; he has complied with his side of the contract.
The employee accordingly may have made all his arrangements for taking up another means of livelihood.
The company now has 3 months to find or train a replacement.
If they need more time, they may ask the employeee to continuw; which the employee may or may not accept.
In case, the company finds a replacement or does not require the services of thee employee from the very next day; they can relieve the employee immediately.
But, since they have received a due notice; and they are also bound by the 3 months notice clause in the contract. They are equally liable to PAY OUT the notice salary, if they want the employee out before 3 months.
An employee giving notice of resignation; does not empower the company to DENY HIM the notice period or notice pay by RESORTING to the EXCUSE that he has given a notice first.
(Only exception can be a mutual understanding; where the employee accepts to be relieved earlier; just as many companies WAIVE the notice pay upon request.)
Hope the matter is clear. If not, then, I shall again request that instead of viewing it from just the employer's side; one should place himself in the employee's shoe and think how one will feel, if complying with the terms, one puts up a notice of 3 months, and the employer terminates his service the next day without giving any salary in lieu (thus depriving him of a salary of months as well as making him un-employed during theat period).
This is the reason (that company is also liable to give notice pay) that companies do not have longer notice period. Else what stops a company from having a notice period of years; to prevents attrition.
Warm regards.
From India, Delhi
Dear Mr. Raj Kumar,
I really enjoy academic and professional discussion. Let me clarify that I am not viewing from employer's side only. I am in fact keeping the spirit of the contract as well as provisions of the Law of contract into consideration which is based primarily on the principle of equity and justice.I have a total of more than 23 years experience handling Employees relations issues of a very large Central Government organisation having 35000 employees, with 10 very strong recognised unions.
Let me take another opportunity to convey my point of view.
By virtue of the clause in the offer of appointment( three months notice by either parties or salary in lieu thereof), any party willing to terminate the contract is legally responsible/bound to give three months advance notice( or salary in place of notice period). In another words, the other party has a legal right to receive either notice or salary in lieu thereof.
Now in a situation, where an employee resigns, in discharge of his legal responsibility contained in his contract of employment will have to give three months notice( offer himself to serve for three months) or deposits three months salary( if he is willing to quit forthwith).The employer(who has legal right to receive such notice from a resigning employee) in such situation may have his discretion to either accept services offered by employee for three months or wave him of from such responsibility and allow him to quit forthwith. Serving during notice period by a resigning employee is in fact his legal responsibility and a necessary condition for terminating the contract rather than his right. This may please be understood in right perspective.
Likewise, when employment contract is intended to be terminated by the employer, it is his legal responsibility, necessary and essential condition (by virtue of termination clause in the agreement) to give three months notice or salary in lieu of notice. In this case, it is legal right of the employee to get such notice or salary in lieu thereof, whatever,employer is willing to offer. The employer cannot remove an employee unless either he gives three months notice(allows employee to serve for three months) or pays salary for the notice period.
Above, analysis is totally based on principle of equality, equity and justice and both employer's and employee's perspectives have been considered.
Hope above clarifies my contention.
From India, Pune
I really enjoy academic and professional discussion. Let me clarify that I am not viewing from employer's side only. I am in fact keeping the spirit of the contract as well as provisions of the Law of contract into consideration which is based primarily on the principle of equity and justice.I have a total of more than 23 years experience handling Employees relations issues of a very large Central Government organisation having 35000 employees, with 10 very strong recognised unions.
Let me take another opportunity to convey my point of view.
By virtue of the clause in the offer of appointment( three months notice by either parties or salary in lieu thereof), any party willing to terminate the contract is legally responsible/bound to give three months advance notice( or salary in place of notice period). In another words, the other party has a legal right to receive either notice or salary in lieu thereof.
Now in a situation, where an employee resigns, in discharge of his legal responsibility contained in his contract of employment will have to give three months notice( offer himself to serve for three months) or deposits three months salary( if he is willing to quit forthwith).The employer(who has legal right to receive such notice from a resigning employee) in such situation may have his discretion to either accept services offered by employee for three months or wave him of from such responsibility and allow him to quit forthwith. Serving during notice period by a resigning employee is in fact his legal responsibility and a necessary condition for terminating the contract rather than his right. This may please be understood in right perspective.
Likewise, when employment contract is intended to be terminated by the employer, it is his legal responsibility, necessary and essential condition (by virtue of termination clause in the agreement) to give three months notice or salary in lieu of notice. In this case, it is legal right of the employee to get such notice or salary in lieu thereof, whatever,employer is willing to offer. The employer cannot remove an employee unless either he gives three months notice(allows employee to serve for three months) or pays salary for the notice period.
Above, analysis is totally based on principle of equality, equity and justice and both employer's and employee's perspectives have been considered.
Hope above clarifies my contention.
From India, Pune
Dear All,
I agree with what Mr. Raj Kumar has stated above. An HR is not meant to be treat himself / or to be treated as 2nd employer. Every HR Professional should must understand the roles and responsibilities & they should must be specific to the particular point.
In my earlier responses, I have requested every one to understand the difference between
1. "why the notice period is required in case of termination of employment contract (from either side)" and
2. "salary and other benefits should be paid to employee or not in any such cases". Again, I would like to request for the same.
Friend Manoj, What I have observed in this discussion that most of people are considering the 1st point only. You must agree that any employment contract is governed by labor & statuary laws.
I hope this every aspect is clear now. This forum is for discussion and every one's concern should must be welcomed and appreciated.
Regards,
Prabhat
From India, Mumbai
I agree with what Mr. Raj Kumar has stated above. An HR is not meant to be treat himself / or to be treated as 2nd employer. Every HR Professional should must understand the roles and responsibilities & they should must be specific to the particular point.
In my earlier responses, I have requested every one to understand the difference between
1. "why the notice period is required in case of termination of employment contract (from either side)" and
2. "salary and other benefits should be paid to employee or not in any such cases". Again, I would like to request for the same.
Friend Manoj, What I have observed in this discussion that most of people are considering the 1st point only. You must agree that any employment contract is governed by labor & statuary laws.
I hope this every aspect is clear now. This forum is for discussion and every one's concern should must be welcomed and appreciated.
Regards,
Prabhat
From India, Mumbai
Dear Devbrat
I still consider myself a learner and young; even though I find that I have far more and longer experience than your 23 years; in a Maharatna PSU having more employees than quoted by you, in every single units of the organization, having a city-size townships attached to its plants; and also having much more unions than you have quoted. I hope being an experienced person you must have been able to guess and comprehend the complete picture.
However, let this not be taken into consideration, and I seldom mention this; for I do not wish to become or known as "öld", with rigid ideas and unable to see the other side of any argument or concept. Anyway, I have put my opinion; and I do not wish to "personalize" this issue. There several sayings, full of wisdom; against arguing with others; and I subscribe to those pearls of wisdom.
In any case, I agree with whatever you say; as it may be in the terms and condition of your company.
I also know for a fact, that many small family-run outfits, registered as companies, ROUTINELY ENGAGE IN SUCH EXPLOITATIVE PRACTICES; so as to save money. They also indulge in BIFURCATING THE MINIMUM WAGES; so as to reduce their contribution of P.F. They do not give Gratuity in case an employee does not complete more than 5 calendar years in service; they club all the Weekly Off or Holidays during, before or after the leave period and thus deplete the employees leave balance; etc.
However, what we are discussing here, is the best practices; which are "not bad" in the eyes of law and natural justice; which can stand the scrutiny of a Court of Law as being fair to the employee and impartial.
I shall once again, quote from you; to convey what I intend to :
on its own,
suo moto,
without the willing consent of the employee;
your para becomes EFFECTIVE - The employer cannot remove an employee unless either he gives three months notice(allows employee to serve for three months) or pays salary for the notice period.
This is what I intended to convey !!
The employer can send him packing the next day - but in that case; it also becomes his liability to pay the notice pay.
Warm regards.
From India, Delhi
I still consider myself a learner and young; even though I find that I have far more and longer experience than your 23 years; in a Maharatna PSU having more employees than quoted by you, in every single units of the organization, having a city-size townships attached to its plants; and also having much more unions than you have quoted. I hope being an experienced person you must have been able to guess and comprehend the complete picture.
However, let this not be taken into consideration, and I seldom mention this; for I do not wish to become or known as "öld", with rigid ideas and unable to see the other side of any argument or concept. Anyway, I have put my opinion; and I do not wish to "personalize" this issue. There several sayings, full of wisdom; against arguing with others; and I subscribe to those pearls of wisdom.
In any case, I agree with whatever you say; as it may be in the terms and condition of your company.
I also know for a fact, that many small family-run outfits, registered as companies, ROUTINELY ENGAGE IN SUCH EXPLOITATIVE PRACTICES; so as to save money. They also indulge in BIFURCATING THE MINIMUM WAGES; so as to reduce their contribution of P.F. They do not give Gratuity in case an employee does not complete more than 5 calendar years in service; they club all the Weekly Off or Holidays during, before or after the leave period and thus deplete the employees leave balance; etc.
However, what we are discussing here, is the best practices; which are "not bad" in the eyes of law and natural justice; which can stand the scrutiny of a Court of Law as being fair to the employee and impartial.
I shall once again, quote from you; to convey what I intend to :
"By virtue of the clause in the offer of appointment( three months notice by either parties or salary in lieu thereof), any party willing to terminate the contract is legally responsible/bound to give three months advance notice( or salary in place of notice period). In another words, the other party has a legal right to receive either notice or salary in lieu thereof".
Likewise, when employment contract is intended to be terminated by the employer, it is his legal responsibility, necessary and essential condition (by virtue of termination clause in the agreement) to give three months notice or salary in lieu of notice. In this case, it is legal right of the employee to get such notice or salary in lieu thereof, whatever,employer is willing to offer. The employer cannot remove an employee unless either he gives three months notice(allows employee to serve for three months) or pays salary for the notice period.Please understand that; THE MOMENT THE EMPLOYER decides to remove an employee (earlier to the agreed upon notice period of 3 months);
on its own,
suo moto,
without the willing consent of the employee;
your para becomes EFFECTIVE - The employer cannot remove an employee unless either he gives three months notice(allows employee to serve for three months) or pays salary for the notice period.
This is what I intended to convey !!
The employer can send him packing the next day - but in that case; it also becomes his liability to pay the notice pay.
Warm regards.
From India, Delhi
Dear Prabhat
Thanks for your response. I appreciate your views and concern.
I would like to re-iterate again :
-- Employee conforms to the contract and gives 3 months notice.
-- If he wanted to be released earlier; he could have indicated so; and accepted liability to pay notice salary.
-- THE BALL IS NOW IN THE EMPLOYER"S COURT.
-- The Employer, as per the contract, is BOUND to ACCEPT the condition of taking work from him and PAYING HIM SALARY till 3 months.
-- Now, the Employer does not want the Employee around any more.
-- Irrespective of whether Employee gives resignation or not; AT ANY POINT OF TIME in the career of the Employee, if the Employer wants he can always RELEASE/relieve him by giving 3 months notice or notice-pay.
-- Now, after acceptance of resignation; EITHER the Employer should let the Employee work for 3 months (as per the contract);
-- ELSE; if SUO MOTO the Employer wants to relieve him; then Employer is bound to pay 3 months notice pay. (or else let him work for 3 month)
Just because an employee has put his resignation complying with the 3 months notice period; why he should not be allowed to work with dignity; for 3 more months ??
If it irks the Employer or otherwise; it still does not give the right to TERMINATE the services immediately; and if the Employer wants to do so, for its OWN CONVENIENCE or WISH; then it should pay the 3 months notice-pay and TERMINATE the services; i.e. release or relieve the employee.
It is as simple as that; if one wants to be fair and just.
This is a simple issue; and can be understood by anyone with an un-biased attitude.
I appreciate those who have understood the issue. In fact, in several threads during 2008 to 2010, this issue has been discussed and even Court Judgement and case laws have been quoted.
Warm regards.
From India, Delhi
Thanks for your response. I appreciate your views and concern.
I would like to re-iterate again :
-- Employee conforms to the contract and gives 3 months notice.
-- If he wanted to be released earlier; he could have indicated so; and accepted liability to pay notice salary.
-- THE BALL IS NOW IN THE EMPLOYER"S COURT.
-- The Employer, as per the contract, is BOUND to ACCEPT the condition of taking work from him and PAYING HIM SALARY till 3 months.
-- Now, the Employer does not want the Employee around any more.
-- Irrespective of whether Employee gives resignation or not; AT ANY POINT OF TIME in the career of the Employee, if the Employer wants he can always RELEASE/relieve him by giving 3 months notice or notice-pay.
-- Now, after acceptance of resignation; EITHER the Employer should let the Employee work for 3 months (as per the contract);
-- ELSE; if SUO MOTO the Employer wants to relieve him; then Employer is bound to pay 3 months notice pay. (or else let him work for 3 month)
Just because an employee has put his resignation complying with the 3 months notice period; why he should not be allowed to work with dignity; for 3 more months ??
If it irks the Employer or otherwise; it still does not give the right to TERMINATE the services immediately; and if the Employer wants to do so, for its OWN CONVENIENCE or WISH; then it should pay the 3 months notice-pay and TERMINATE the services; i.e. release or relieve the employee.
It is as simple as that; if one wants to be fair and just.
This is a simple issue; and can be understood by anyone with an un-biased attitude.
I appreciate those who have understood the issue. In fact, in several threads during 2008 to 2010, this issue has been discussed and even Court Judgement and case laws have been quoted.
Warm regards.
From India, Delhi
Dear Mr. Raj kumar,
, Thanks for your very enlightening advice. I have no where in my write up become personal nor intended to be.We may have difference of opinion. that does not matter. This forum provides all of us freedom of expression and opprtunity to learn and this is exactly what I am doing. My humble and sincere advice to you is that being a senior HR prfessional ( as claimed by you) please dont get personal as you have been in the above message to me.
I shall actually be grateful to you if you could provide me those Supreme/High Court Judgements,which you have referred in your message to Shri Mishra, where hon'ble court has upheld your contention that in case of resignation by an employee, if the employer does not want notice period and is willing to exempt the employee from doing so (which is contractual obligation of resigning employee) and accordingly allows the employee to depart forthwith, employer would be liable to pay salary for such notice period.
From India, Pune
, Thanks for your very enlightening advice. I have no where in my write up become personal nor intended to be.We may have difference of opinion. that does not matter. This forum provides all of us freedom of expression and opprtunity to learn and this is exactly what I am doing. My humble and sincere advice to you is that being a senior HR prfessional ( as claimed by you) please dont get personal as you have been in the above message to me.
I shall actually be grateful to you if you could provide me those Supreme/High Court Judgements,which you have referred in your message to Shri Mishra, where hon'ble court has upheld your contention that in case of resignation by an employee, if the employer does not want notice period and is willing to exempt the employee from doing so (which is contractual obligation of resigning employee) and accordingly allows the employee to depart forthwith, employer would be liable to pay salary for such notice period.
From India, Pune
Dear Jhadevbrat
With due apologies; I appreciate your interest in this discussion.
We should have an open mind to consider any new development or a new fair, liberal and legal system and process; irrespective of the usual practices that one may have come across.
Kindly use the RESEARCH button, to seek the information; as it has been discussed earlier in several threads in CiteHR.com.
There is no point in discussing this matter further; as looking into the opportunity cost of time, it would be more appropriate and beneficial to cater to the requirement and queries of several other members, most of whom are freshers, and whose needs are more pressing and urgent.
As a very senior HR person; you are fully entitled to your opinion, and act accordingly, that :
Once an employee puts his resignation; his services can be DISPENSED with IMMEDIATELY; or at anytime within the notice period; WITHOUT incurring the liability of any notice pay.
Many companies do it with impunity, because they have very experienced HRs who are aware that not every employee has the time, inclination or resources to challenge it in a Court of Law.
It is no wonder that employees leave such draconian organization, as soon as they find a better opportunity; without giving any notice; and they are branded as "äbsconding" by the concerned HRs.
I am sorry, but I do not subscribe to such old philosophy of the early industrialization era which depended more on control, oppression, fear etc; I believe more in an ethical, humanistic philosophy of HRM which encompasses employee development and employee engagement through just and fair employee-friendly HR policies which helps an employee grow with the organization.
Warm regards.
From India, Delhi
With due apologies; I appreciate your interest in this discussion.
We should have an open mind to consider any new development or a new fair, liberal and legal system and process; irrespective of the usual practices that one may have come across.
Kindly use the RESEARCH button, to seek the information; as it has been discussed earlier in several threads in CiteHR.com.
There is no point in discussing this matter further; as looking into the opportunity cost of time, it would be more appropriate and beneficial to cater to the requirement and queries of several other members, most of whom are freshers, and whose needs are more pressing and urgent.
As a very senior HR person; you are fully entitled to your opinion, and act accordingly, that :
Once an employee puts his resignation; his services can be DISPENSED with IMMEDIATELY; or at anytime within the notice period; WITHOUT incurring the liability of any notice pay.
Many companies do it with impunity, because they have very experienced HRs who are aware that not every employee has the time, inclination or resources to challenge it in a Court of Law.
It is no wonder that employees leave such draconian organization, as soon as they find a better opportunity; without giving any notice; and they are branded as "äbsconding" by the concerned HRs.
I am sorry, but I do not subscribe to such old philosophy of the early industrialization era which depended more on control, oppression, fear etc; I believe more in an ethical, humanistic philosophy of HRM which encompasses employee development and employee engagement through just and fair employee-friendly HR policies which helps an employee grow with the organization.
Warm regards.
From India, Delhi
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