Employment Termination - CiteHR
Stephen_7
Senior Officer - Hr
Sushilkluthra@gmail.com
Consultant In Legal Matters
Kennyade
Hr Administrator

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Can employment be terminated by an employee during probation period when an employee signed an agreement ''Employee understands that s/he will be trained with requisite work experience within the initial employment period of six (6) months (“Probation Period”) using the time and materials of the Employer. Employee further understands that the Employer will suffer some economic loss if the Employee leaves his/her employment within his/her Probation Period, or any time before the expiration of a minimum of six (6) months thereafter (altogether a period of twelve months hereinafter referred to as “Minimum Stay Period”). Employee therefore agrees to remain with the Employer for at least the Minimum Stay Period.
The employee is still under probation, and she tendered her resignation, has she defaulted the agreement of the minimum stay period?

you cannot terminate her. as there is a price for everything. deduct her notice period salary and relieve her. no one can bind a human against their wish.
after you came to know that she wants to leave and you threaten her and retain her. will she work towards goodselves for the company? she will not. so better is to settle and send her out.
as a hr, try to make them feel comfort while they are in the company. you can't force the comfort ness once they decided to leave.

The above agreement is in the nature of bond to serve minimum period even though no liquidated damages amount is shown. So reasonable damages to the extent of expenditure incurred by management on training him, may only be recoverable under section 73 of contract Act. But if the employee is a workman then by virtue of section 38-B of the Bombay Shops and Establishment Act the provisions of Model Standing orders apply to establishment being in Mumbai. Under para 13 thereof only one month's notice will be required to be given by probationer. Any contract contrary to it is void. In respect of workman or non workman by virtue of section 38 of said Bombay Act, the Payment of Wages Act apply whereunder no deduction otherwise authorized by Act is permissible from wages of the employee. Thus even damages arising out of breach of contract will not be recoverable because of section 23 of the Payment of Wages Act which holds contracting out to be void. Thus virtually section 73 of the contract Act is modified in case of contract with employee by the provisions of Payment of Wages Act which are read into Bombay Act. This is a new dimension contemplated subject to scrutiny by judicial analysis.This has been discussed by me elsewhere in the thread titled "Break of bond".

Thanks

Sushil

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