Hello There,
I have been working in an organisation since a year. I signed an offer letter which has many clauses and can be construed as a mutual agreement between me and the employer. Following are the clauses that are relevant in this case and they are,
Clause 5: "You would be on probation for the period of initial six months. If your performance is found to be unsatisfactory, the company reserves the right to extend your probation period up to a maximum by six months or terminate your employment with immediate effect. You are not entitled for any promotions/increments during your probation. During the extension of probation period, if your performance is still found unsatisfactory, the company shall be entitled to terminate your services forthwith without any notice whatsoever.
Clause 15: Your service shall be terminable by either party giving the other three months' notice or three months' salary including allowances in lieu thereof.
The company didn't confirmed/terminated me within one year as was said in Clause 5. It has extended my probation from time-to-time without any sort of communication. I have not been confirmed yet and the company has not been in-line to what it mentioned in the offer letter to me. Citing risks of this prolonged probation, I myself gave a resignation to avoid irrational termination.
Now the company has demanded me to serve notice period or compensation citing the clause 15. My contention is that the company has already breached clause 5 and it cannot ask me comply under clause 15. Moreover, serving any notice period itself stands void as I am still on probation.
However, I have had good relation in the company and therefore serving a reasonable notice of 1 month so that I can make a smooth handover of my work. The company offers to give me a "smooth exit" by giving only a relieve letter. It wont give me an experience letter because of the reasons like: not serving notice period, penalty etc.
I have demanded it more that once but to no avail. What would the experts on this forum suggest?
From India
I have been working in an organisation since a year. I signed an offer letter which has many clauses and can be construed as a mutual agreement between me and the employer. Following are the clauses that are relevant in this case and they are,
Clause 5: "You would be on probation for the period of initial six months. If your performance is found to be unsatisfactory, the company reserves the right to extend your probation period up to a maximum by six months or terminate your employment with immediate effect. You are not entitled for any promotions/increments during your probation. During the extension of probation period, if your performance is still found unsatisfactory, the company shall be entitled to terminate your services forthwith without any notice whatsoever.
Clause 15: Your service shall be terminable by either party giving the other three months' notice or three months' salary including allowances in lieu thereof.
The company didn't confirmed/terminated me within one year as was said in Clause 5. It has extended my probation from time-to-time without any sort of communication. I have not been confirmed yet and the company has not been in-line to what it mentioned in the offer letter to me. Citing risks of this prolonged probation, I myself gave a resignation to avoid irrational termination.
Now the company has demanded me to serve notice period or compensation citing the clause 15. My contention is that the company has already breached clause 5 and it cannot ask me comply under clause 15. Moreover, serving any notice period itself stands void as I am still on probation.
However, I have had good relation in the company and therefore serving a reasonable notice of 1 month so that I can make a smooth handover of my work. The company offers to give me a "smooth exit" by giving only a relieve letter. It wont give me an experience letter because of the reasons like: not serving notice period, penalty etc.
I have demanded it more that once but to no avail. What would the experts on this forum suggest?
From India
Dear friend,
Though your probation period was extended from time to time as per the terms of the contract of employment on the ground of performance, you were neither terminated by the Management nor confirmed till you opted to resign. Therefore, still you are in the service of the establishment as a probationer only and as such you are bound to comply with the notice clause of the unilateral termination of the contract of employment. It is, however, up to the Management to waive it completely or relax it like the way they reacted to your resignation. Reading in between the lines, I can understand your tacit acceptance of the performance appraisal by the Management. Better accept the offer by the Company and get yourself smoothly relieved so as to get another job suiting your employability.
From India, Salem
6018Though your probation period was extended from time to time as per the terms of the contract of employment on the ground of performance, you were neither terminated by the Management nor confirmed till you opted to resign. Therefore, still you are in the service of the establishment as a probationer only and as such you are bound to comply with the notice clause of the unilateral termination of the contract of employment. It is, however, up to the Management to waive it completely or relax it like the way they reacted to your resignation. Reading in between the lines, I can understand your tacit acceptance of the performance appraisal by the Management. Better accept the offer by the Company and get yourself smoothly relieved so as to get another job suiting your employability.
From India, Salem
The contract says that the probation can be extended to a maximum of 6 month (Initial 6+this 6= 12 months). The word maximum is to be noted here. I can be assured that extension to my probation was not due to my performance, but internal discrepancies—because my manager had approved my confirmation a long ago, and I was even awarded for my work.
Though the company didn't terminate my services but extending my probation beyond what was agreed upon is irrational and illegal perhaps. I agree that I still am obliged to the service of the company as a probationer but the company has unscrupulously prolonged probation of about 40 people, including me. While on Probation, I am not even entitled to appraisals, increments and other benefits.
Raising this issue, the company has issued back-dated confirmation letter to 39 of them, while trying to terminate me by just giving a relieve letter and not experience letter; "smooth exit" they say.
From India
Though the company didn't terminate my services but extending my probation beyond what was agreed upon is irrational and illegal perhaps. I agree that I still am obliged to the service of the company as a probationer but the company has unscrupulously prolonged probation of about 40 people, including me. While on Probation, I am not even entitled to appraisals, increments and other benefits.
Raising this issue, the company has issued back-dated confirmation letter to 39 of them, while trying to terminate me by just giving a relieve letter and not experience letter; "smooth exit" they say.
From India
Also the company has been selectively releasing employees by giving all the relevant letters. For example, one of the employees who had the same notice period as that of mine (3 mo.) exited in a month. He didn't pay any kind of compensation but was provided with letters on time.
How can the policies of the company be different for individual cases. How can the company strictly follow the rules in some case, while cool-off policies in others?
From India
How can the policies of the company be different for individual cases. How can the company strictly follow the rules in some case, while cool-off policies in others?
From India
Dear friend,
In this forum, the questions raised in a thread are answered by the readers based only on the factual information provided by the writer. If some pieces of vital information relating to the questions are withheld by the writer for obvious reasons or revealed on piece meal basis in his successive posts, some of the earlier answers may become inappropriate or even wrong. Therefore, the presentation of all the factual information in a single go without any omission by the writer alone can enable the readers to suggest the answers to the queries effectively.
Coming to your problem: Probation, being a definite period of trial to assess the suitability of the new recruit to hold the position substantively, enables the employer to simply terminate his services at the end of the period specified on the reason of documented unsatisfactory performance or extend the period of probation for some more time,if any so mentioned in the employment contract. If he is allowed to continue his services even past the extended period of probation without any explicit orders of confirmation, his status of employment is probationer only in the absence a specific clause enabling deeming confirmation in the contract. The legality or otherwise of such a situation depends upon one's perception. The employer's act of keeping the employee still in service as a probationer again and again despite his perceived unsuitability may be viewed as a measure of sympathy or as an act of unfair labor practice. The secret is best known only to the concerned employer and the employee. When the fact remains that you were a star performer even as a probationer and along with you some 40 probationers faced the same fate of extended probations beyond the limit prescribed, what prevented you from agitating such a practice? When the rest 39 were confirmed back-dated, why you alone were chosen to send out with just a relieving letter remains unexplained. Any way, now, only two options are before you - one is fighting the case with moral courage and the other is to wriggle out of this bad situation and unscrupulous Company tactfully to get better employment elsewhere.
I request you to treat this as my reply to your private message also.
From India, Salem
In this forum, the questions raised in a thread are answered by the readers based only on the factual information provided by the writer. If some pieces of vital information relating to the questions are withheld by the writer for obvious reasons or revealed on piece meal basis in his successive posts, some of the earlier answers may become inappropriate or even wrong. Therefore, the presentation of all the factual information in a single go without any omission by the writer alone can enable the readers to suggest the answers to the queries effectively.
Coming to your problem: Probation, being a definite period of trial to assess the suitability of the new recruit to hold the position substantively, enables the employer to simply terminate his services at the end of the period specified on the reason of documented unsatisfactory performance or extend the period of probation for some more time,if any so mentioned in the employment contract. If he is allowed to continue his services even past the extended period of probation without any explicit orders of confirmation, his status of employment is probationer only in the absence a specific clause enabling deeming confirmation in the contract. The legality or otherwise of such a situation depends upon one's perception. The employer's act of keeping the employee still in service as a probationer again and again despite his perceived unsuitability may be viewed as a measure of sympathy or as an act of unfair labor practice. The secret is best known only to the concerned employer and the employee. When the fact remains that you were a star performer even as a probationer and along with you some 40 probationers faced the same fate of extended probations beyond the limit prescribed, what prevented you from agitating such a practice? When the rest 39 were confirmed back-dated, why you alone were chosen to send out with just a relieving letter remains unexplained. Any way, now, only two options are before you - one is fighting the case with moral courage and the other is to wriggle out of this bad situation and unscrupulous Company tactfully to get better employment elsewhere.
I request you to treat this as my reply to your private message also.
From India, Salem
Thank you Umakanthan for your valuable advice!
I didn't present all vital information in a single article to keep the brevity and encourage readability of the whole thread.
It is apparent that our prolonged extension was an act of unfair labour practice by the employer. Though almost each of the 40 guys had same grievance, only I raised a concern to the HRD and subsequently resigned from my services citing insecurity and unnecessary delays in the process. During this course, everyone including me (not only the rest 39) was given with a back dated confirmation letter—though I had not accepted it till date for good moral reasons.
Perhaps I was chosen to send out with just a relieving letter because I had agitated and caused to put a break on employer's unfair act. I had few valid arguments to prove my point and bring the employer on the back-foot that is, receding from demand of full notice period/compensation. What more can the employer do to compromise on the one hand, while appear strict on the other?
Inline to your advice, I have tactfully exited the company (without paying/serving notice) to pursue a better opportunity elsewhere. Fighting a legal case was my last resort; had the issue not settled amicably I would have gone to labour court as I knew my stand is correct—also validated by you, now.
Please accept my sincere gratitude for sharing your views on this case.
From India
I didn't present all vital information in a single article to keep the brevity and encourage readability of the whole thread.
It is apparent that our prolonged extension was an act of unfair labour practice by the employer. Though almost each of the 40 guys had same grievance, only I raised a concern to the HRD and subsequently resigned from my services citing insecurity and unnecessary delays in the process. During this course, everyone including me (not only the rest 39) was given with a back dated confirmation letter—though I had not accepted it till date for good moral reasons.
Perhaps I was chosen to send out with just a relieving letter because I had agitated and caused to put a break on employer's unfair act. I had few valid arguments to prove my point and bring the employer on the back-foot that is, receding from demand of full notice period/compensation. What more can the employer do to compromise on the one hand, while appear strict on the other?
Inline to your advice, I have tactfully exited the company (without paying/serving notice) to pursue a better opportunity elsewhere. Fighting a legal case was my last resort; had the issue not settled amicably I would have gone to labour court as I knew my stand is correct—also validated by you, now.
Please accept my sincere gratitude for sharing your views on this case.
From India
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