Suresh P
Hr Professional
Korgaonkar K A
Ba,llb,mpm,dir&pm,dll&lw,d.cyber
Tajsateesh
Recruitment/talent Acquisition, Career Counselling
Shah01ankita
Talent Acquisition / Consultant - Catalis
Eswararao Ivaturi
Ex-manager (pers&adma)
+1 Other

Thread Started by #poojaachaudhary

Is it legal for an employer to use terms that notice period is unavoidable cann not be waived off by forgoing salary
26th July 2013 From India, Delhi
If the clause is one sided only then will not stand in Court ( Court may deem it void ) but if it is both sided then it is valid & Legal in court.....
26th July 2013 From India, Pune
Dear Pooja ji,
In fact I have not understood your query but on guess work my answer is as under:
If there is a mention in the appointment letter only of either side notice and it is silent on salary in lieu of notice and waiving off notice, the employer will be right in insisting the employee to complete notice period. It will be justified on the part of employer not to waive off the notice period by paying salary in lieu of notice or otherwise.
26th July 2013 From India, Mumbai
Hello Poojaachaudhary,
Your posting is confusing.
While Prashant & Keshav Korgaonkar have given the apt suggestions based on THEIR understanding of your Posting, your Posting actually gives a different meaning.
Your used the words '...to use terms that notice period is unavoidable cann not be waived off....'. This gives a meaning that these words ARE A PART of the Appointment Letter. Is this REALLY SO? Or is this YOUR conclusion/understanding of whatever was actually mentioned in the Appointment Letter?
However, whatever be the wordings mentioned, Prashant & Keshav Korgaonkar's suggestions would still be valid.
The reason for highlighting the point I mentioned above is to give you a feedback to desist from mixing-up the facts from your conclusions.
All the Best.
Rgds,
TS
27th July 2013 From India, Hyderabad
Hellow Puja,
As our members have rightly said, if the clause of Notice or Notice Pay by either side is not clearly mentioned by the employer in the Appointment Letter, or in the Service Rules of the organisation, it is at
the discretion of
the Employer to decide.
Hope this may give some clarity.
Eswararao Ivaturi

28th July 2013 From United States, Cupertino
Dear Keshav jee

Need your help in understanding the principle of resignation, if I am not wrong as per Any Establishment policy, it is either 1 month notice or 3 month on either side or 1 month pay or 3 month pay in lieu of not serving the terms of 1 month or 3 month.

My query is does employer insist staff to work for 1 month or 3 month as per policy without accepting the Salary in lieu of not serving the terms.

Any citation of court is the above matter is welcome , kindly revert with your valuable advise as its pertain to my own son case.

In my son case the Management is not accepting the resignation letter and giving the acknowledgement receipt.

Further in his Appointment letter it is mentioned ON CONFIRMATION to give 3 month Notice or Pay in lieu of the same.

The Management has change the policy intimating through E -Mail that from 1st April 13, Notice Pay in lieu of 3 month notice THE PRACTICE HAS BEEN STOP

Can Management resort to such practice by intimating through mail.?

Which Clause prevail Appointment letter clause OR E-Mail communication ?

What remedy is available if the Br Head is not giving the acknowledgement receipt ?

For your information there is NO Union is functioning in the establishment.

Kindly revert with your valuable advise.
28th July 2013 From India, Mumbai
Dear Keshavjee.

Further to the thread more clarification is provided herein below

My Son has Join the establishment on 20th August 2012 & tendered the Hard Copy of resignation on 11th July 2013 in writing to Branch Head, he has till date has not given acknowledgement on the copy that resignation is received, unfortunately my Son has not mentioned the last working day but has mentioned to relive him, "As soon As possible". as he has got the job offer letter from Multinational Company based in UAE intimating my son to join the company by 1 August 2013.

The Present Company appointment letter state that on Confirmation 3 months notice on either side or in lieu of the same 3 month pay

While referring the resignation letter the Br head has verbally told my son that 3 month notice in lieu of Notice practice has been stopped from 1 April 2013 and you have to work for 3 months, there is No alternative.

As regards policy announcement it is done Generally prior to giving resignation letter of my son via Email from VP- HR Department and not now

My Son does not want to serve the complete notice period but is willing to settle the dues in lieu of the notice period.

Can Management resort to such practice by intimating through mail. about stoppage of Practice in lieu of Notice Period?

Which Clause prevail Appointment letter clause OR E-Mail Generally Announced ?

What remedy is available if the Br Head is not giving the acknowledgement receipt ?

Kindly revert as the time is running out as the 1 August 2013 is approaching very soon.

In case Br Head decline to give the acknowledgement copy,and my son does not full fill the terms of Notice periods either side as per Appointment letter

What Action can be contemplated by the Employer against my Son ? As stated in previous mail NO Union is functioning in the present establishment.

UAE Company does not need any relieving letter of present employer

Regards,

Azim Charania
28th July 2013 From India, Mumbai
Dear Sir,

"UAE Company does not need any relieving letter of present employer" - If UAE company do not want this document, please ignore about getting relieving certificate and go-ahead with joining. However...

An organisation can change their internal policies any time. In your son's case if the amended rule has come into effect after he putting his resignation (though you vaguely mentioned), then the old clause appearing in his appointment letter will be considered (arguably even that email posted date appears after he tendering his resignation can also come for his rescue). Because many things can cook up in the organisation's kitchen, unless it is served in time its validity will not come into force.

Ask him to preserve copy of resignation letter and the email circulation.

Secondly ask him to update his new employer about this relieving related issue. And the above docs will help him to substantiate his current situation, if the new employer demands it.

Third thing if he can convince his current employer, take their confidence up, keeping a good relationship, request them to consider by allowing him to payback the notice period, for a cordial relationship. Certain companies will allow this depends on the relationship.

All the best for his future endeavors.

Suresh
29th July 2013 From India, Pune
Mr. Azim,

Company can change the policy with time. The new changes ought to be communicated to all the staff. Since it is not possible to print minor changes and distribute to the large number of employees, increasingly the employers are mailing those minor changes over the email. Ideally the company also asks to sign a declaration stating they've read and agree to the new changes. Even if the practice is not adapted, it is assumed that the employees read the mail and since no query was initiated, it is presumed that you have accepted and have no objection to it or seek no clarification on it.

Since emails have been accepted as a legal communication medium and can be used a proof to communication link, I would say that there is nothing wrong in company clarifying the changes over email. The most important fact is communicating changes - either by appointing new letter or on notice board or via email is not the concern....

Secondly you mention that the amendments were made in April and your son resigned in July. So the new and amended clause will apply which mean that the company can't be expected to accept 3 month's salary in lieu of the notice period to be served.

Ideally when someone is writing resignation, he should mention the intended last working day. It will give scope of discussion in the exit interviews and you can put forth your claims and problems and hence early relief.... However, since no date was put up, it must have been presumed that you'd resign in the normal condition by serving 3 month's notice period.

With such short notice, I doubt a company would be ready to cooperate but one can only try to negotitate with the current and the prospective company to respectively relieve as early as possible and try to delay the joining for genuine case.

All the best.
29th July 2013 From India, Mumbai
Dear Azim ji,
Generally I avoid to give opinion on any specific issue without understanding it fully from all angle, without reading and interpreting the relevant documents.
I have many questions / doubts to clear, on your query and it is not a platform to do it. In any legal issue, steps taken by each party plays vital role. Proper interpretation of law and its application to case, matters a lot.
In your case I would only draw your attention to Section 9A and item no. 9 of Fourth Schedule to ID Act. According to it, introduction of new rules of discipline, or alteration of existing rules, except in so far as they are provided in standing orders, needs to give 21 days notice. You need to see relevance of it to you. According to me notice period is a matter of discipline.
29th July 2013 From India, Mumbai
Dear Azim ji,
In addition to my earlier comments, I would like to give some more comments / my views, point-wise as under which may help you to decide your case.
 
If it is agreed by both the parties no salary in lieu of short notice by either side, the employer can insist no salary in lieu of short notice.
In case management is not giving acknowledgment receipt, one should send the communication by Register AD Post, asap.
Now time has gone. You should come on record of the company the fact of submitting the letter but not giving the acknowledge receipt, by written communication to higher management.
Any clause in appointment letter or in any any agreement is agreed by both the parties by writing and signing. So change in it should be in writing and singing by both the parties. Mere email communication of change is not enough.
Comments are already given above.
30th July 2013 From India, Mumbai
Dear Pooja, In every organisa-
tion Standing orders(in the
absence of standing orders
model standing orders) and/or
Service Rules will be there
whether it is unionised or
not. Appointment letter
contains the clauses from
this. Generally any change
in the establihment concerned to the employees
should be notified for information otherwise it is
invalid legally.
So, in case of any resignation by a probationer
the clause of notice will not be applicable.
In case of a resignation by
the confirmed employee, as
our members are rightly said
1 month or three months whatever the case may be or
notice pay in lieu of notice, part of the notice and the notice pay by the
employee has to be accepted
by the employer. In such case employee should clearly
specify in the resignation
letter to adjust the notice
pay from his final dues.

Some companies will clearly
intimate about the notice period only by either. In
that case Company has got the right legally to
31st July 2013 From United States, Cupertino
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