Notice Period During Probation Period [Thread 511443] - CiteHR
Saswatabanerjee
Partner - Risk Management
Adoni Suguresh
Sr.executive (per & Adm)
Adv. Manoj Liyonzon
Advocate, Chennai
G. Hari
Retired
Hrparamjeet
Manager Hr - Generalist Profile
Srs_vignesh
Recruitment, Employee Relation, Training
+5 Others

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Hi,
I want to know if it is legally compliant for a company to have notice period of 2 months from employees side during probation whereas the company gives 2 weeks of notice from the company's side? Can you please let me know if this will stand in the labour court.
- Lorein

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
It's unfair
But you singed 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.
Only thing that may have contrarian terms would be Standing Orders of the company (or model standing orders). It it has specific terms for notice period of 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, you intend to go to court for a minor thing like this ? Do you know how king 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 45 days of notice period buyout ?

Dear Lorein
I agree with Mr Rajsekaran that contract should be both ways. The basic test is that the contract should be fair based on the principles of equality and natural justice. Therefore the notice period should be same from both sides i.e. employer and employee. Any contract based on discrimination will not stand in the eyes of law. So far as Labour Court is concerned please check whether the employee is covered in the notified category under ID Act.

I too agree that employment contract should promote equitable discretion or it can easily be termed arbitrary.

The notice period/pay is part of service conditions that are governed by various enactments/statue/instrument of law applicable to establishment/employee....e.g:

Model Standing Orders: Notice Period during probation period is NIL, and after confirmation it is 30 days...and is equitable for both employer and employee..

(Name of the state) Shops and Commercial Establishment Act: Depending upon length of service it can be MIL to 30 days...and is equitable for both employer and employee

Any private policy of the employer and any private agreement that employer has signed with employee can not supersede an instrument of law/statue/enactment..

Employer personally is held responsible for faithful observance of standing orders/enactments..

You may easily be covered as 'Employee's as in Shops and Commercial Establishment Act and a@ 'Workman ' as in ID act....

Even if you have signed such arbitrary agreement it may not be even worth the piece of paper on which it is written.

During proceedings the Labor Inspector is most likely to rubbish the claim of employers..

The terms of the contract relating to notice period during probation is discriminatory and stands a reasonable chance of success if challenged in a court of law. Further, the standard provisions with regard to probation do not provide for notice period or pay by either side in the event of separation during the probation period. Even from this angle, the provision of notice period during probation period might not stand the test of law.
Thanks.
G. Hari

Dear Lorein

As some of my friend well said that the terms and conditions of appointment letter should be vice versa. Otherwise it is nothing like a piece of paper.

I also agree with Mr Sashwata Banerjee. that we should avoid court cases. It is verymuch time taking. Also law means ...cost , delay and glorious uncertainity. You can not say that you will win the case..though court always favours the employees. But it is India where judge can easily be purchased. Also it can effect your future career.

At the same time I must say that notice pay is not required during probation period. Appointment letter always legally says that " Initially you will be on probation period for a period of 3 / 6 months which can be extended for a further period of 3/ 6 ,pnths. On completion of extended probation period either your employer have to confirm you in writing or terminate you...in that case no notice period is requred. But after confirmation...notice period is required.

As I earlier told that each point of your appointment letter should be vice versa...

So please don't go to labour court ....try to negotiate the matter tactfully.

Thanks

Kamal Datta

Dear Lorein

As some of my friend well said that the terms and conditions of appointment letter should be vice versa. Otherwise it is nothing but a piece of paper.

I also agree with Mr Sashwata Banerjee. that we should avoid court cases. It is very much time taking. Also law means ...cost , delay and glorious uncertainity. You can not say that you will win the case..though court always favour the employees. But it is India where judges can easily be purchased. Also it can effect your future career.

At the same time I must say that notice period is not required during probation period. Appointment letter always legally says that " Initially you will be on probation period for a period of 3 / 6 months which can be extended for a further period of 3/ 6 ,months. On completion of extended probation period either your employer have to confirm you in writing or terminate you...in that case no notice period is requred. But after confirmation...notice period is required.

As I earlier told that each point of your appointment letter should be vice versa...

So please don't go to labour court ....try to negotiate the matter tactfully.

Thanks

Kamal Datta

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 mention ed any specific period during probationary period you have the right to terminate the employment with a reasons by giving a notice in writing.
Adoni Suguresh
Sr.Executive (Pers, Admin & Ind.Rels) Rtd
Labour Laws Consultant

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 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 cannons 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


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