Termination Before The Notice Period - CiteHR
Psdhingra
Legal Analyst, Hrm
Gopinath Varahamurthi
Mindhour Partner, Ass.professor/adm. Officer,
Rdsyadav
Educator, Management Consultant & Trainer
Ashutosh Thakre
Hr Professional
Shradha Chaubey
Coordinator

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Hello,
Just a quick query. If an employee agrees to serve the two months notice period as written in the contract, and after resignation she is serving the notice period and already crossed half of it following the rules of not getting any kind of benefit from the organisation (for eg. no leave). Under what circumstances the employer can terminate her and what compensation should be offered to her if the organisation do not have any strong point for termination?
Thanks

I do not understand why do you want to terminate her in the first place? Why the need to.....
Dear Shradha,
Compensate the employee with the prorata notice period pay for the unused period of prescribed notice period. If you expect the employee the adhere to the provision of notice period, why the management should feel exempted from operation of the clause and why to deny from compensating him, if the employee is decided to be relieved in anticipation of the due date of expiry period of notice?

Dear Friend,
Here the point of saying termination is not valid, since, the employee serving notice period and giving the facility of the service to the organisation/employer to complete the notice period. In case the organisation is willingly to give him the service certificate before serving the notice period fully, better issue the service certificate and relieve him from services, if you organisation/employer in appreciation want to give all benefits let the same be given, there is no question of keeping all these things abeyance. The rough weather occurs only when an employee want to get rid of the organisation (in almost all the cases the employee want to get rid of the boss and not the organisation) serving notice period/pay deductions for two months or one month etc., crop up...
best of luck ....

If I am not wrong you have raised query being an employee and not employer, if that is the case the termination after resignation does not carry any value, but termination can be given on account of any gross misconduct.
Dear Friend,

an employee when offered resignation, the better option of an employer is to give immediate response and it is the best to give him the service certificates and get relieved from the situation. Now, you have raised a question that employer did want to terminate for any gross misconduct, it is the situation invited by the organisation/employer with the utopia thought of getting some works/services from the employee who is not going to work/serve for the organisation after tendered resignation. In a real sense which employee really want to serve/work after tendering resignation? It is the clause we as employer fail to understand the employee or we trust the authorities that they will extract work/service from the employee, with the hope the employee is going to perform optimum services. Thus in many a ways we are inviting the situation. So, when termination crop up the real situation is the employee has already tendered resignation, but to serve for the period in lieu of salary etc., whatever the conditions.

What we are going to serve, the termination or the employee cease to be in service from the date, in either way a conscious employer never disgrade the services rendered by the employee, because, a misconduct invite enquiry/inquiry and prima facie we have to prove a gross violation of rules and regulation, indisciplined action of the employee during the notice period this will prolong the process, time consuming at the end of the day we sit with great exclamation a procedure we might have averted initially at the notice period itself.

Thus having an employee with us after given resignation is a grave, better, we should get rid of such a employee duly finding out the real cause of leaving the services, the better option call him and find out the reasons to plug the issues at a later date for others not to go in a similar fashion.

best of luck ....

Ms. Shraddha,

I re-write your problem situation as under:

The concerned person is a "workman", under ID Act .She has submitted resignation and servicing notice period. One month out of two is completed by her.

Question: If she remains committing misconduct of unauthorise absence during notice period, can employer terminate her and if yes what compensation is payable to her?

My replies are as below:

An employee is eligible in normal course,during this type of situation while in Notice period to pro-rata leaves equal to what he/ she could get during 2 months on full attendance like other employee. It is incorrect to derive conclusion that during notice period an outgoing employee can avail any number any type of leave out of his leave credits.Her right to avail leaves is limited to only pro-rata leave and in case if she is availing leave which is not sanctioned or she remains on leave without permission- then the same is an offence and she is liable for punishment on account of unauthorized absence and not observing prevailing rules of the company etc. Moreover, unauthorized absence is easy to prove because the same is on Attendance record.On the above grounds, action of termination is within the purview of employer.Employer need to issue a detailed charge sheet asking to explain into allegations / misconducts and dismiss her in next step without any compensation.In that situation her service certificate will bear reason of leaving- Termination.................

Readers are requested to appreciate the problem situations, logic and intricacies there in as much as behaviours of outgoing employee impacting overall discipline if the same is not maintained through administrative process. I have come across this kind of situations. If large number of employees arbitrary disowning their responsibilities by remain absent and do not serve notice period fully then organizations will be loosing heavily in terms of productivity and more on account of discipline which are against in the interest of organization.On the other hand outgoing employees are also to be allowed some justified days leaves rather pro-rata leaves to meet personal/ family matters as that is natural,based on fair practices prevailing across good companies exercising equal opportunity concepts.

Regards,

RDS Yadav

Labour Law Adviser

Director-Future Instt.Of Management and Technology

Ms. Shraddha,

I re-write your problem situation , reframe your queries and attempt to answer as under:

The concerned person is a "workman", under ID Act .She has submitted resignation and servicing notice period. One month out of two is completed by her.

Question: If she remains committing misconduct of unauthorized absence during notice period, can employer terminate her and if yes what compensation is payable to her?

My replies are as below:

An employee is eligible in normal course,during this type of situation while in Notice period to pro-rata leaves equal to what he/ she could get during 2 months on full attendance like other employee. It is incorrect to derive conclusion that during notice period an outgoing employee can avail any number and any type of leave out of his leave credits.Her right to avail leaves is limited to only pro-rata leave and in case if she is availing leave which is not sanctioned or she remains on leave without permission- then the same is an offence and she is liable for punishment on account of unauthorized absence and not observing prevailing rules of the company etc. Moreover, unauthorized absence is easy to prove because the same is on Attendance record.On the above grounds, action of termination is within the purview of employer.Employer need to issue a detailed charge sheet , enclosing days of unauthorsed absence endorsed by Time Office on a separate sheet asking to explain into allegations / misconducts and dismiss her in next step without any compensation.In that situation her service certificate will bear reason of leaving- Termination .................

HR Practitioners, viewers of this site and readers are requested to appreciate the problem situations, logic and intricacies in a more practical and justifiable way in as much as behaviours of outgoing employee impacting overall discipline if the same is not maintained through administrative process. I have come across this kind of situations. If large number of employees arbitrarily disown and refrain from their responsibilities by remaining absent and do not serve notice period then organizations will be loosing heavily in terms of productivity and more on account of discipline then the same would require and call for administrative actions. Such irresponsible acts and misconducts by outgoing employees will cost heavily as as at the same time those are definitely against the interest of organization.On the other hand outgoing employees are also to be allowed some justified days leaves rather pro-rata leaves to meet normally unplanned things for personal/ family matters . With such model of Management practices, organizations control operations and manage employees which are based on fair practices prevailing across good companies exercising equal opportunity concepts.

Regards,

RDS Yadav

Labour Law Adviser

Director-Future Instt.Of Management and Technology

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