An employee joined the organization on 19/07/2021 and is due for confirmation on 19/01/2022. However, due to some technical issues, management has not issued the confirmation letter to the employee. Instead, they sent him an email from the Department Head's official email ID on 20/09/2022, stating that his services are confirmed.
Management issued a written confirmation letter to him this month before Diwali. However, he has not accepted it, and the next day resigned from his post, giving one month's notice. According to his Appointment Letter, a three-month notice period is eligible after confirmation.
The question is, does this employee need to serve one month's notice or three months' notice?
Regards,
Nitin
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Management issued a written confirmation letter to him this month before Diwali. However, he has not accepted it, and the next day resigned from his post, giving one month's notice. According to his Appointment Letter, a three-month notice period is eligible after confirmation.
The question is, does this employee need to serve one month's notice or three months' notice?
Regards,
Nitin
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Hi,
Few questions:
Why has the confirmation letter not been given even after 8 months from the date it was due?
Has an extension of the probation letter been issued?
Has there been any face-to-face discussion regarding the delay in the confirmation letter with HR or the immediate superior?
Did he acknowledge the confirmation letter issued to him through email? Did HR follow up on this?
Did he follow up on his confirmation letter after the completion of six months?
If your answer is NO, then the employee has the right to serve one month's notice in the absence of any proper communication to him.
From India, Madras
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1153Few questions:
Why has the confirmation letter not been given even after 8 months from the date it was due?
Has an extension of the probation letter been issued?
Has there been any face-to-face discussion regarding the delay in the confirmation letter with HR or the immediate superior?
Did he acknowledge the confirmation letter issued to him through email? Did HR follow up on this?
Did he follow up on his confirmation letter after the completion of six months?
If your answer is NO, then the employee has the right to serve one month's notice in the absence of any proper communication to him.
From India, Madras
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A mail from the HOD confirming his appointment is adequate to consider that his probation is over. Therefore, the 3-month notice pay applies.
I am curious, though. Why did you suddenly issue the letter 8 months later? Why was it necessary to rock the boat? If the letter was dated currently, then, well, he is right in saying he refuses it and the 1-month notice applies.
From India, Mumbai
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I am curious, though. Why did you suddenly issue the letter 8 months later? Why was it necessary to rock the boat? If the letter was dated currently, then, well, he is right in saying he refuses it and the 1-month notice applies.
From India, Mumbai
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Every agreement is bilateral, meaning it requires acceptance from both parties involved. In the present case:
1. The employer has made an inordinate delay in issuing the confirmation letter without assigning any reason whatsoever.
2. Additionally, there was no written communication regarding the extension of the probation period for the employee by the company.
Therefore, the fault lies with the company.
In such a situation, the employee has every right to accept and/or reject the offer made by the company through the confirmation letter. Since the confirmation made by the company was not accepted by the employee, the conditions mentioned in the confirmation letter do not apply to the employee. Instead, the conditions outlined in the initial appointment letter appointing the employee under the probation period shall govern the relationship between the employee and the employer.
Consequently, the company cannot demand a three-month notice pay from the employee and must comply with a one-month notice period if it is specified in the initial appointment letter appointing the employee under the probation period.
Jawaharlal Moondra
9829028028
jawaharlalmoondra@hotmail.com
From India, Jodhpur
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1. The employer has made an inordinate delay in issuing the confirmation letter without assigning any reason whatsoever.
2. Additionally, there was no written communication regarding the extension of the probation period for the employee by the company.
Therefore, the fault lies with the company.
In such a situation, the employee has every right to accept and/or reject the offer made by the company through the confirmation letter. Since the confirmation made by the company was not accepted by the employee, the conditions mentioned in the confirmation letter do not apply to the employee. Instead, the conditions outlined in the initial appointment letter appointing the employee under the probation period shall govern the relationship between the employee and the employer.
Consequently, the company cannot demand a three-month notice pay from the employee and must comply with a one-month notice period if it is specified in the initial appointment letter appointing the employee under the probation period.
Jawaharlal Moondra
9829028028
jawaharlalmoondra@hotmail.com
From India, Jodhpur
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There is no question of an employee accepting or rejecting the confirmation letter. The department head sent mail on 20.09.22, followed by the regular communication issued before Diwali. The order of confirmation from service becomes effective when the HOD conveys it. If the employee did not react to it, then he/she does not have any right to reject it after the formal order is issued. The 8-month-long delay in issuing it is an inordinate delay. Is the present order stating anything about the intervening period?
From India, Mumbai
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From India, Mumbai
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KK,
I think there is another aspect to it; unfortunately, the OP has not bothered to even respond to our posts and queries. If the company has given a confirmation letter of the current date, then the mail from the HOD is basically meaningless, right? In that case, the employee can reject the confirmation and say he does not accept it.
Now it becomes a techno-legal question as to whether the confirmation letter is an offer that needs to be accepted to become a contract, or it is a statement of status in line with the agreement originally signed (that is the acceptance of the job and the appointment letter). It would depend on what exactly the letter actually said.
Since the OP has not replied, I think it is just an academic discussion among us, but it allows me to flex my mental and logical muscle a bit.
From India, Mumbai
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I think there is another aspect to it; unfortunately, the OP has not bothered to even respond to our posts and queries. If the company has given a confirmation letter of the current date, then the mail from the HOD is basically meaningless, right? In that case, the employee can reject the confirmation and say he does not accept it.
Now it becomes a techno-legal question as to whether the confirmation letter is an offer that needs to be accepted to become a contract, or it is a statement of status in line with the agreement originally signed (that is the acceptance of the job and the appointment letter). It would depend on what exactly the letter actually said.
Since the OP has not replied, I think it is just an academic discussion among us, but it allows me to flex my mental and logical muscle a bit.
From India, Mumbai
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Dear Mr. Banerjee,
I think you skipped my post dated 31/10/2022 wherein I already mentioned that I am thankful for the inputs.
Back to the subject - A mail was sent to the concerned staff on 19/09/2022 stating that his services are confirmed after six months only (No extension in the probation period). Management was unable to issue the Confirmation Letter (Hard Copy) due to some technical issues, which I already mentioned in my earlier post.
A written confirmation letter was prepared before Diwali, which was not accepted by the Employee, who gave their resignation the next day, stating a notice period of one month.
In this scenario, my question is whether the employee should serve a notice period of one month or three months?
Regards,
Nitin
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I think you skipped my post dated 31/10/2022 wherein I already mentioned that I am thankful for the inputs.
Back to the subject - A mail was sent to the concerned staff on 19/09/2022 stating that his services are confirmed after six months only (No extension in the probation period). Management was unable to issue the Confirmation Letter (Hard Copy) due to some technical issues, which I already mentioned in my earlier post.
A written confirmation letter was prepared before Diwali, which was not accepted by the Employee, who gave their resignation the next day, stating a notice period of one month.
In this scenario, my question is whether the employee should serve a notice period of one month or three months?
Regards,
Nitin
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As the hard copy of the confirmation letter is dated current (just before Diwali), how will the company prove that such a long, prolonged technical issue could exist for 8 months from 19/01/2022 to 19/09/2022? Even after that, the hard copy was prepared and offered to the employee just before Diwali, i.e., another month after sending the email.
Such abnormal delay on the pretext of a technical issue could work against the company if legally challenged by the competent authority. In such a scenario, the employee would likely prevail and only have to serve a one-month notice period.
Jawaharlal Moondra
From India, Jodhpur
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Such abnormal delay on the pretext of a technical issue could work against the company if legally challenged by the competent authority. In such a scenario, the employee would likely prevail and only have to serve a one-month notice period.
Jawaharlal Moondra
From India, Jodhpur
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Well Nitin, Your one-line post thanking people for the input still does not give any of us the details we needed to make an informed reply. The matter at hand concerns interpretation that involves law, facts, and circumstances. Without full details, we are doing guesswork. Probably, this needs to be decided by a lawyer who has access to the full facts.
You still don't seem to understand what I was trying to say. It is clear that the company was careless in not closing the probation on time. Either they didn't bother or purposely held it back, maybe to deny certain benefits (at least that is how any lawyer will present before a court). When they realized that the employee may leave, they sent an email confirming the services with retrospective effect. There is the first problem.
Retrospective confirmation can work in favor of the employee if he wants to claim benefits otherwise denied. But it does not give the company retrospective rights. From the company's perspective, it will be effective the date of the email, at best. Under the IT Act, 2000, email is a valid mode of communication. But if you are following it up with a hard copy on letterhead, it, in effect, means the email was not an official communication. It then brings a lot of things into question, including the right of the HOD to provide the confirmation. In most probability, he didn't have the right. Again, only a person (consultant or lawyer) who is on-site and can see all things in proper perspective can say which is the correct interpretation.
If the employer completed the process after a lot of delay, and in a manner that looks like it was a second thought to prevent the employee from leaving, if the matter came to court, I am sure the lawyers will claim that the employee had given oral communication that he was resigning. The other thing I said, and I will repeat. Was the confirmation a fresh offer of the contract of services with different terms and, therefore, has to be accepted? Or was it a confirmation of the status of the contract of services already signed and in force, with the right to change the status unilaterally with the employer. Without seeing all documents like the standing orders and the actual appointment letter, it is difficult to say. However, it seems in this case, the courts are likely to take a stand averse to the employer.
If the employer had actually confirmed him on time, it would probably be a confirmation of status, but since they didn't, it means the terms were changed (by extending the probation) and, therefore, the confirmation after so many months is a fresh offer that the employee has the right to accept or reject. If he was smarter, he would have dated his resignation 2 days prior to the letter.
Giving a letter saying that the confirmation is with a retrospective date does not make it so. The confirmation is from the date on which the letter was actually issued. I have a strong feeling that the 'Technical' difficulty was that the authorized signatory was not in the office and couldn't sign the document. Which would obviously mean that the person sending the Email was not authorized to do so.
In all, I think the employee is very much within his rights to complete only a 1-month notice period.
From India, Mumbai
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You still don't seem to understand what I was trying to say. It is clear that the company was careless in not closing the probation on time. Either they didn't bother or purposely held it back, maybe to deny certain benefits (at least that is how any lawyer will present before a court). When they realized that the employee may leave, they sent an email confirming the services with retrospective effect. There is the first problem.
Retrospective confirmation can work in favor of the employee if he wants to claim benefits otherwise denied. But it does not give the company retrospective rights. From the company's perspective, it will be effective the date of the email, at best. Under the IT Act, 2000, email is a valid mode of communication. But if you are following it up with a hard copy on letterhead, it, in effect, means the email was not an official communication. It then brings a lot of things into question, including the right of the HOD to provide the confirmation. In most probability, he didn't have the right. Again, only a person (consultant or lawyer) who is on-site and can see all things in proper perspective can say which is the correct interpretation.
If the employer completed the process after a lot of delay, and in a manner that looks like it was a second thought to prevent the employee from leaving, if the matter came to court, I am sure the lawyers will claim that the employee had given oral communication that he was resigning. The other thing I said, and I will repeat. Was the confirmation a fresh offer of the contract of services with different terms and, therefore, has to be accepted? Or was it a confirmation of the status of the contract of services already signed and in force, with the right to change the status unilaterally with the employer. Without seeing all documents like the standing orders and the actual appointment letter, it is difficult to say. However, it seems in this case, the courts are likely to take a stand averse to the employer.
If the employer had actually confirmed him on time, it would probably be a confirmation of status, but since they didn't, it means the terms were changed (by extending the probation) and, therefore, the confirmation after so many months is a fresh offer that the employee has the right to accept or reject. If he was smarter, he would have dated his resignation 2 days prior to the letter.
Giving a letter saying that the confirmation is with a retrospective date does not make it so. The confirmation is from the date on which the letter was actually issued. I have a strong feeling that the 'Technical' difficulty was that the authorized signatory was not in the office and couldn't sign the document. Which would obviously mean that the person sending the Email was not authorized to do so.
In all, I think the employee is very much within his rights to complete only a 1-month notice period.
From India, Mumbai
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