Hi,
I want to know if it is legally compliant for a company to have a notice period of 2 months from an employee's side during probation, whereas the company gives a 2-week notice from the company's side. Can you please let me know if this will stand in the labor court?
- Lorein
From India, Bangalore
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1I want to know if it is legally compliant for a company to have a notice period of 2 months from an employee's side during probation, whereas the company gives a 2-week notice from the company's side. Can you please let me know if this will stand in the labor court?
- Lorein
From India, Bangalore
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Contract should be on both sides. Your case it seems on one side i.e. favour to employer side. This clause may not be be stand in the eyes of labour courts. regards S Rajasekaran
From India, Madras
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From India, Madras
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It's unfair. But you signed it knowingly. So if you don't like the clause, why did you sign the appointment letter? Once you signed it, the clause applies to you. There is nothing in law to say this is not allowed. The only thing that may have contrarian terms would be Standing Orders of the company (or model standing orders). If it has specific terms for the notice period of the probation period, then that would be grounds to invalidate your appointment letter terms. I can't say whether the courts would invalidate it. But seriously, do you intend to go to court for a minor thing like this? Do you know how long it takes courts to give a decision, how much it will cost in lawyers' fees till then, and how such a thing affects your career? What exactly are you trying to achieve? Avoid paying a 45-day notice period buyout?
From India, Mumbai
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From India, Mumbai
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Dear Lorein,
I agree with Mr. Rajsekaran that the contract should be mutual. The fundamental criterion is that the contract should be just, based on the principles of equality and natural justice. Therefore, the notice period should be the same for both parties, i.e., the employer and the employee. Any contract founded on discrimination will not be upheld by the law. Regarding the Labour Court, please verify if the employee falls under the category notified under the ID Act.
Thank you.
From India, New Delhi
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I agree with Mr. Rajsekaran that the contract should be mutual. The fundamental criterion is that the contract should be just, based on the principles of equality and natural justice. Therefore, the notice period should be the same for both parties, i.e., the employer and the employee. Any contract founded on discrimination will not be upheld by the law. Regarding the Labour Court, please verify if the employee falls under the category notified under the ID Act.
Thank you.
From India, New Delhi
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I too agree that employment contracts should promote equitable discretion, or they can easily be termed arbitrary.
The notice period/pay is part of service conditions that are governed by various enactments/statutes/instruments of law applicable to the establishment/employee. For example:
Model Standing Orders: The notice period during the probation period is NIL, and after confirmation, it is 30 days, which is equitable for both the employer and employee.
(Name of the state) Shops and Commercial Establishment Act: Depending upon the length of service, it can be NIL to 30 days, which is equitable for both the employer and employee.
Any private policy of the employer and any private agreement that the employer has signed with the employee cannot supersede an instrument of law/statute/enactment.
The employer personally is held responsible for the faithful observance of standing orders/enactments.
You may easily be covered as 'Employees' as in the Shops and Commercial Establishment Act and as 'Workmen' as in the ID Act.
Even if you have signed such an arbitrary agreement, it may not be worth the piece of paper on which it is written.
During proceedings, the Labor Inspector is most likely to rubbish the claims of employers.
From India, Chandigarh
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The notice period/pay is part of service conditions that are governed by various enactments/statutes/instruments of law applicable to the establishment/employee. For example:
Model Standing Orders: The notice period during the probation period is NIL, and after confirmation, it is 30 days, which is equitable for both the employer and employee.
(Name of the state) Shops and Commercial Establishment Act: Depending upon the length of service, it can be NIL to 30 days, which is equitable for both the employer and employee.
Any private policy of the employer and any private agreement that the employer has signed with the employee cannot supersede an instrument of law/statute/enactment.
The employer personally is held responsible for the faithful observance of standing orders/enactments.
You may easily be covered as 'Employees' as in the Shops and Commercial Establishment Act and as 'Workmen' as in the ID Act.
Even if you have signed such an arbitrary agreement, it may not be worth the piece of paper on which it is written.
During proceedings, the Labor Inspector is most likely to rubbish the claims of employers.
From India, Chandigarh
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The terms of the contract relating to the notice period during probation are discriminatory and stand a reasonable chance of success if challenged in a court of law. Furthermore, the standard provisions regarding probation do not provide for a notice period or pay by either side in the event of separation during the probation period. Even from this angle, the provision of a notice period during the probation period might not stand the test of law.
Thanks,
G. Hari
From India, Alappuzha
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Thanks,
G. Hari
From India, Alappuzha
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Dear Lorein,
As some of my friends well said, the terms and conditions of the appointment letter should be vice versa; otherwise, it is nothing more than a piece of paper.
I also agree with Mr. Sashwata Banerjee that we should avoid court cases. It is very time-consuming. Also, law means cost, delay, and glorious uncertainty. You cannot say that you will win the case, though the court always favors the employees. But in India, where judges can easily be influenced, it can affect your future career.
At the same time, I must say that notice pay is not required during the probation period. The appointment letter always legally states, "Initially you will be on a probation period for a period of 3/6 months, which can be extended for a further period of 3/6 months. On completion of the extended probation period, your employer must confirm you in writing or terminate you... in that case, no notice period is required. But after confirmation, a notice period is necessary.
As I mentioned earlier, each point of your appointment letter should be vice versa.
So, please don't go to the labor court; try to negotiate the matter tactfully.
Thanks,
Kamal Datta
From India, Kolkata
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As some of my friends well said, the terms and conditions of the appointment letter should be vice versa; otherwise, it is nothing more than a piece of paper.
I also agree with Mr. Sashwata Banerjee that we should avoid court cases. It is very time-consuming. Also, law means cost, delay, and glorious uncertainty. You cannot say that you will win the case, though the court always favors the employees. But in India, where judges can easily be influenced, it can affect your future career.
At the same time, I must say that notice pay is not required during the probation period. The appointment letter always legally states, "Initially you will be on a probation period for a period of 3/6 months, which can be extended for a further period of 3/6 months. On completion of the extended probation period, your employer must confirm you in writing or terminate you... in that case, no notice period is required. But after confirmation, a notice period is necessary.
As I mentioned earlier, each point of your appointment letter should be vice versa.
So, please don't go to the labor court; try to negotiate the matter tactfully.
Thanks,
Kamal Datta
From India, Kolkata
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Dear Lorein,
As some of my friends have correctly pointed out, the terms and conditions of the appointment letter should be reciprocal. Otherwise, it is merely a piece of paper.
I also concur with Mr. Sashwata Banerjee that we should strive to avoid court cases as they are very time-consuming. Furthermore, the law often entails costs, delays, and considerable uncertainty. You cannot guarantee a successful outcome in court, even though the courts typically favor employees. Unfortunately, in India, judges can be easily influenced due to corruption. Additionally, involvement in legal matters can adversely impact your future career.
Simultaneously, I would like to emphasize that a notice period is not necessary during the probationary period. The appointment letter explicitly states, "Initially, you will be on probation for a period of 3/6 months, which may be extended for an additional 3/6 months. Upon completion of the extended probation period, your employer must either confirm you in writing or terminate your employment. In the latter case, no notice period is required. However, after confirmation, a notice period becomes mandatory.
Just as I mentioned earlier, each clause in your appointment letter should be reciprocal.
Therefore, I strongly urge you not to resort to labor court proceedings but rather attempt to handle the situation diplomatically.
Thank you,
Kamal Datta
From India, Kolkata
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As some of my friends have correctly pointed out, the terms and conditions of the appointment letter should be reciprocal. Otherwise, it is merely a piece of paper.
I also concur with Mr. Sashwata Banerjee that we should strive to avoid court cases as they are very time-consuming. Furthermore, the law often entails costs, delays, and considerable uncertainty. You cannot guarantee a successful outcome in court, even though the courts typically favor employees. Unfortunately, in India, judges can be easily influenced due to corruption. Additionally, involvement in legal matters can adversely impact your future career.
Simultaneously, I would like to emphasize that a notice period is not necessary during the probationary period. The appointment letter explicitly states, "Initially, you will be on probation for a period of 3/6 months, which may be extended for an additional 3/6 months. Upon completion of the extended probation period, your employer must either confirm you in writing or terminate your employment. In the latter case, no notice period is required. However, after confirmation, a notice period becomes mandatory.
Just as I mentioned earlier, each clause in your appointment letter should be reciprocal.
Therefore, I strongly urge you not to resort to labor court proceedings but rather attempt to handle the situation diplomatically.
Thank you,
Kamal Datta
From India, Kolkata
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Dear Mr. Lorein,
The clause of termination, either in probationary or on confirmation, is not mentioned in the labor laws. It is at the discretion of the company and management based upon the employment rules of the particular company. If you have mentioned the termination clause in the appointment order, you must follow the same. If not mentioned any specific period during the probationary period, you have the right to terminate the employment with reasons by giving a notice in writing.
Adoni Suguresh Sr. Executive (Pers, Admin & Ind. Rels) Rtd Labour Laws Consultant
From India, Bidar
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The clause of termination, either in probationary or on confirmation, is not mentioned in the labor laws. It is at the discretion of the company and management based upon the employment rules of the particular company. If you have mentioned the termination clause in the appointment order, you must follow the same. If not mentioned any specific period during the probationary period, you have the right to terminate the employment with reasons by giving a notice in writing.
Adoni Suguresh Sr. Executive (Pers, Admin & Ind. Rels) Rtd Labour Laws Consultant
From India, Bidar
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1. There is no doubt that the provisions contained in the Appointment letter form the terms and conditions of service of the employee.
2. However, if the provisions are patently one-sided and seemingly discriminatory, they might not stand the test of the law.
3. If you get hold of and check the sample appointment letters of various organizations, big or small, it could be seen that 9 out of 10 would not have provided such a one-sided clause. This, in itself, would add strength to the contention that the provision under question is against the canons of common/standard practice.
4. I am in favor of testing this legally. To begin with, it would be worth the while to consult an advocate and obtain his counsel on the matter.
5. One of the members has suggested 'try to negotiate the matter tactfully.' Negotiate what?
Thanks. G. Hari
From India, Alappuzha
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2. However, if the provisions are patently one-sided and seemingly discriminatory, they might not stand the test of the law.
3. If you get hold of and check the sample appointment letters of various organizations, big or small, it could be seen that 9 out of 10 would not have provided such a one-sided clause. This, in itself, would add strength to the contention that the provision under question is against the canons of common/standard practice.
4. I am in favor of testing this legally. To begin with, it would be worth the while to consult an advocate and obtain his counsel on the matter.
5. One of the members has suggested 'try to negotiate the matter tactfully.' Negotiate what?
Thanks. G. Hari
From India, Alappuzha
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