Our company has a notice period of 3 months mutual. In the offer letter, they said "Your services are terminable with three months' notice on either side." Recently, I resigned and within 2 days, they relieved me and said it's the company's interest to relieve an employee. I was expecting at least to have 3 months' time to search for a new job. Is this the right way? Can I go the legal way?
From India, Chennai
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1From India, Chennai
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In my opinion, the condition of the Notice Period or salary in lieu thereof is to give time to both parties, i.e., employer and employee, to make their replacements. These conditions are created by the employer and accepted by the employee (in fact, the employee has no option but to accept the condition/s). As such, the employer has the full power to waive off any of the conditions either on the request of the employee or of their own, keeping in view the interest of the company. Management watches whether the employee will give fruitful work during the notice period or not, or if any project is to be completed. Similar is your case.
Your post "I was expecting at least to have 3 months' time to search for a new job." reveals that you resigned first and then are going to start a new job.
From India, Panipat
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Your post "I was expecting at least to have 3 months' time to search for a new job." reveals that you resigned first and then are going to start a new job.
From India, Panipat
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In such a scenario, the employer is expected to pay 3 months' notice pay and relieve him. Notice pay is binding on both parties, and if the employee resigns, he would also state that he may be relieved on such a date as it would come after 3 months, as in this case. Yes, the employer has the option to relieve him earlier provided the employee requests that he may be relieved immediately, and it all depends on the HR policy of the organization. If we take it and fix it like this - that the employer wants to terminate the employee by giving the employee three months' time to work, and at the same time, the employee wants that he should be relieved immediately. In such a situation, it is open to the employer to ask him to work for three months or pay three months' notice pay to relieve him. Though this option rarely happens, the first incident happens very regularly.
In this context, I would also like to add one more thing, that an employee can withdraw his resignation before it becomes effective. That means if the date of relieving is three months from now, that is the effective date of relieving and before that, he can take back his resignation. If that happens, the alternative (new person appointed or to be appointed) we have found in place of the person getting relieved will become surplus, or we will have to call back the offer given to him. Therefore, if the employer thinks that the resigned employee will not be putting his efforts and time into his office, then relieve him but by paying notice pay.
Madhu.T.K
From India, Kannur
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In this context, I would also like to add one more thing, that an employee can withdraw his resignation before it becomes effective. That means if the date of relieving is three months from now, that is the effective date of relieving and before that, he can take back his resignation. If that happens, the alternative (new person appointed or to be appointed) we have found in place of the person getting relieved will become surplus, or we will have to call back the offer given to him. Therefore, if the employer thinks that the resigned employee will not be putting his efforts and time into his office, then relieve him but by paying notice pay.
Madhu.T.K
From India, Kannur
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Dear Mr. Madhu TK,
With due regard, I wish to say that resignation is a unilateral decision taken by the employee. As soon as the resignation is accepted by the employer, it becomes final, and the employee has no authority to withdraw the same after acceptance. Even after tendering resignation, the employee cannot withdraw the resignation without the consent of the employer. However, the employer is expected to sit with the employee and understand the situation under which the employee has taken such a decision. If necessary, the employer should allow a cool-down time to the employee, but cannot bind them to do so.
As far as payment for the notice period of early relieving, I agree with you that the terms of employment bind both parties. Here, the employee is asking for 3 months' time and not notice pay.
I would like to know the status of my above views in your opinion.
Thanks,
V K Gupta
From India, Panipat
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With due regard, I wish to say that resignation is a unilateral decision taken by the employee. As soon as the resignation is accepted by the employer, it becomes final, and the employee has no authority to withdraw the same after acceptance. Even after tendering resignation, the employee cannot withdraw the resignation without the consent of the employer. However, the employer is expected to sit with the employee and understand the situation under which the employee has taken such a decision. If necessary, the employer should allow a cool-down time to the employee, but cannot bind them to do so.
As far as payment for the notice period of early relieving, I agree with you that the terms of employment bind both parties. Here, the employee is asking for 3 months' time and not notice pay.
I would like to know the status of my above views in your opinion.
Thanks,
V K Gupta
From India, Panipat
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When the employee resigns, he has expressed his intent to separate. The notice period is to ensure that there is continuity and a smooth transition. When the resignation is voluntary and it has been accepted, the employer cannot hold the employee beyond the upper limit of the notice period (in this case, 90 days). However, the employer has the right to release the employee earlier (with or without the employee's request), and no salary shall be paid by the employer for the unserved period. The key here is the "intent expressed," and the expresser of intent has to sacrifice. If the employer had asked the employee to leave, then they must pay the salary for the shortfall of the notice period.
From India, Bangalore
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From India, Bangalore
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Practically, what Gupta has said is true, and I also endorse it. However, the court verdicts on various disputes show that an employee can withdraw their resignation before it becomes effective. I have attached one case for reference. Please go through it.
Madhu.T.K
From India, Kannur
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Madhu.T.K
From India, Kannur
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Dear Santosh,
In your resignation letter, you have stated that you will serve the full notice period of 3 months. If you have stated so, you can raise this matter with your current employer. Please note that if you insist on 3 months' notice pay from your current employer, I am afraid he may even pay the notice pay but issue you a service certificate stating "Services Terminated." This is because the clause itself is titled "Termination," though in reality, it includes relieving based on resignation.
You do have the choice to fight legally if you had mentioned in your resignation letter your intention to serve the full notice period of 3 months, but the matter will drag as companies have legal counsel, and they will appear for them, and you will go out of pocket to hire one.
Hence, my suggestion is to look for an alternate job without losing time. Incidentally, tendering a resignation without an offer on hand is not considered a prudent move.
Regards,
M.V. Kannan
From India, Madras
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In your resignation letter, you have stated that you will serve the full notice period of 3 months. If you have stated so, you can raise this matter with your current employer. Please note that if you insist on 3 months' notice pay from your current employer, I am afraid he may even pay the notice pay but issue you a service certificate stating "Services Terminated." This is because the clause itself is titled "Termination," though in reality, it includes relieving based on resignation.
You do have the choice to fight legally if you had mentioned in your resignation letter your intention to serve the full notice period of 3 months, but the matter will drag as companies have legal counsel, and they will appear for them, and you will go out of pocket to hire one.
Hence, my suggestion is to look for an alternate job without losing time. Incidentally, tendering a resignation without an offer on hand is not considered a prudent move.
Regards,
M.V. Kannan
From India, Madras
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This matter has been discussed several times earlier.
Notice of resignation applies to both parties.
If an employee needs to be relieved immediately after giving his resignation, he has to pay back the notice period salary; else be forced to work till the notice period is over.
Once he has given the "notice of resignation" (and not resignation per se), the ball is in the employer's court. They have to let him work till the notice period is over. Else, if they do not want his services, they may do so by paying him the notice pay.
Just because an employee has given a notice does not entitle the employer to terminate his services forthwith without paying him his notice pay.
If such a unilateral decision is allowed, there is no sanctity of the contract or agreement on terms and conditions of service. In such a scenario, nothing stops the employer from having a one-year or five-year notice period; as it becomes very clear that the EMPLOYER HAS TO PAY NOTHING - If an employee puts in his resignation, the employer can retain him for one year or five years (as per the terms) and if he does not want to, then he can terminate the services immediately.
So, in such a case, there is no point in saying a notice on "either side" unless there is an equal burden on both parties.
Hope I have been able to convey the implications of "Your services are terminable with three months' notice on either side".
Warm regards.
From India, Delhi
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Notice of resignation applies to both parties.
If an employee needs to be relieved immediately after giving his resignation, he has to pay back the notice period salary; else be forced to work till the notice period is over.
Once he has given the "notice of resignation" (and not resignation per se), the ball is in the employer's court. They have to let him work till the notice period is over. Else, if they do not want his services, they may do so by paying him the notice pay.
Just because an employee has given a notice does not entitle the employer to terminate his services forthwith without paying him his notice pay.
If such a unilateral decision is allowed, there is no sanctity of the contract or agreement on terms and conditions of service. In such a scenario, nothing stops the employer from having a one-year or five-year notice period; as it becomes very clear that the EMPLOYER HAS TO PAY NOTHING - If an employee puts in his resignation, the employer can retain him for one year or five years (as per the terms) and if he does not want to, then he can terminate the services immediately.
So, in such a case, there is no point in saying a notice on "either side" unless there is an equal burden on both parties.
Hope I have been able to convey the implications of "Your services are terminable with three months' notice on either side".
Warm regards.
From India, Delhi
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I joined an O&M company in Sep’10 and after 2.3 yrs of service, on 26.11.’12, I submitted my resignation and I have clearly mentioned that my last working day will be 26.12.’12. As per company policy, notice period is stated as follows:"On Confirmation of your services with our organization two months notice is required for resigning from the service. Out of these two months, one-month service is compulsorily required and for the second month you can opt for one month salary in lieu of notice period." (Company deducts GROSS SALARY). Company credits salary by 15th of every month and as I had resigned on 26th, my salary for Nov’12 was held-up.
Due to family problem I applied leave - after getting consent from Plant Manager from 18/12/’12 to 22/12/’12. Due to unavoidable reasons, I couldn’t join duty on 24/12/’12(23rd was Sunday). Even though I returned back on 24th evening and informed PM also - as 25/12/’12 was Christmas Holiday - I could resume duty on 26.12.’12 which was my last working day. (i.e., I was absent from 23/12/’12 to 25/12/’12 for 3 days). My salary from 1/11/’12 to 26/12/’13 i.e., (56-3=53 days) is still not yet settled. On 26.12.’12, I had obtained NO DUES CERTIFICATE (as per company procedure) from all department Incharges including HR and Plant Manager after surrendering my SIM card, ID card, used safety shoes etc. I also sent the scanned copy of my Resignation acceptance letter and Clearance Certificate to HR & Accounts Department at Head office thro’ e-mail.
After frequent follow-up with HR team, they are saying that my F&FS is held-up as I have not worked for 1month and asking me to pay another 9 days salary(from 18/12/’12 to 26/12/’12). Now they are not transferring my PF amount also to my new PF account (I have submitted FORM 13 to newly joined organization during Feb’13). Till now my F&FS, Releiving letter, Form 16 for filing returns and PF account Transfer form (Form 13 ) not being cleared. Where and/or to whom should I complain for Form 16 and PF Account Transfer delay?What I am arguing is - they can deduct 30 days salary for Notice Period and extra 3 days salary for which I was absent i.e. I am asking them to pay 23 days (56-30-3=23 days) salary after deducting for Notice Period.
IS IT CORRECT ?
From India, Mumbai
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Due to family problem I applied leave - after getting consent from Plant Manager from 18/12/’12 to 22/12/’12. Due to unavoidable reasons, I couldn’t join duty on 24/12/’12(23rd was Sunday). Even though I returned back on 24th evening and informed PM also - as 25/12/’12 was Christmas Holiday - I could resume duty on 26.12.’12 which was my last working day. (i.e., I was absent from 23/12/’12 to 25/12/’12 for 3 days). My salary from 1/11/’12 to 26/12/’13 i.e., (56-3=53 days) is still not yet settled. On 26.12.’12, I had obtained NO DUES CERTIFICATE (as per company procedure) from all department Incharges including HR and Plant Manager after surrendering my SIM card, ID card, used safety shoes etc. I also sent the scanned copy of my Resignation acceptance letter and Clearance Certificate to HR & Accounts Department at Head office thro’ e-mail.
After frequent follow-up with HR team, they are saying that my F&FS is held-up as I have not worked for 1month and asking me to pay another 9 days salary(from 18/12/’12 to 26/12/’12). Now they are not transferring my PF amount also to my new PF account (I have submitted FORM 13 to newly joined organization during Feb’13). Till now my F&FS, Releiving letter, Form 16 for filing returns and PF account Transfer form (Form 13 ) not being cleared. Where and/or to whom should I complain for Form 16 and PF Account Transfer delay?What I am arguing is - they can deduct 30 days salary for Notice Period and extra 3 days salary for which I was absent i.e. I am asking them to pay 23 days (56-30-3=23 days) salary after deducting for Notice Period.
IS IT CORRECT ?
From India, Mumbai
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The case you have quoted is for a VRS. Acceptance of VRS is not a normal voluntary resignation, though the employers would like to call it so. The courts also know that VRS is a newer form of retrenchment. Therefore, whatever the courts have said in this case will not necessarily be the case in a normal resignation.
From India, Mumbai
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From India, Mumbai
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