Dinesh Divekar
Business Mentor, Consultant And Trainer
Labour Law & Hr Consultant
Bharat Gera
Principal Hr Consultant
Hr Consultant
+2 Others

Thread Started by #Anonymous

We have an employee with contractual period of 5 years. he has completed 3 and half year. due to some reason he has been given a notice period of three months by the organisation (as endorsed in the contact of appointment). now after 20 days since he was served with notice period, he comes and request to be relieved with immediate and salary of the rest of the notice period (2 months and 10 days). the query is-
a) on his request, if the organisation relieves him with immediate effect, what is the liability on the organisation, does the organisation have to pay salary of balance of the days (2 months 10 days)
b) as he is giving in writing , in a way he is resigning , does he have to pay three months salary?
8th January 2018 From India, Pune
employer has already served the notice and ready to pay till the next 3 months subject to the attendance of employee, and will release him after completion of the notice period.
if the employee comes in between the notice period with some fresh request, it is null and void, as the employer has already issued notice.
employee can reply the notice, and willingly can leave the employment but would not get paid for the remaining period,
8th January 2018
thanks for they reply.
as you said " employee can reply the notice, and willingly can leave the employment but would not get paid for the remaining period".
does the employee has to pay anything in that case? i suppose no, just wanted to clarify
8th January 2018 From India, Pune
as the employer has already issued the notice, employee is bound to serve the notice period as per the agreement clause, in case he deny the same, he has to buy the balance notice period as per rules.
balance is between employee and employer, on any term they can mutually agree upon.
8th January 2018
Dear friend,
You may tell the employee to submit the application that asks for the curtailment of the notice period. This application should be on and above the resignation letter. In this application, tell the employee to write that he is submitting this application out of his volition and no liabilities will be passed on to the company for the curtailment, which includes payment in lieu of underserved noticed period also. The second declaration that he should give is about withdrawal of his application. Once his request for the curtailment of the notice period is approved by the company authorities, he will not withdraw this application.
In the extreme case, company may ask the employee to bring two witnesses and these witnesses should sign the application at the HR department.
Dinesh Divekar
8th January 2018 From India, Bangalore
Dear Friend,
1. Since the employee is already on notice, you ask him to submit his request in writing.
2. Pay him only for the days he has worked as the company has given him notice as per contract of employment, the company's liability is limited to pay for the days he has worked.
Warm Regards
Bharat Gera
HR Consultant
9th January 2018 From India, Thane
Employee is on three months notice period for exit.
IF employee wants to leave immediately, company liability is limited to payment up to period he has worked and that is all.
As a matter of fact company need not agree to early exit.
9th January 2018 From India, Pune
I have a different perception based on the purpose of notice on exit in the realm of employment. Here in this thread, the contract of employment between the employer and the employee is a Fixed Term Contract of Service for a period of 5 years terminable by 3 months notice on either side. Now, the exit or foreclosure of the contract before the completion of the 5 years is at the instance of the employer for which a notice of three months has been given by the employer for the obvious reason that the employer does not want to pay salary in lieu of notice. Thus the process of termination of the contract for 5 years of service stands started after 3 years by the employer through the issuance of a prior notice of 3 months. It means that the employer would continue the employee on his service only for a period of 3 months and he would be paid salary if he works or if he finds an alternative employment during the notice period, he can go out by foregoing his service for the remaining period as well as salary based on the principle of no work-no salary. Therefore, my answers to the queries are as follows:
1) If the organization relieves the employee at his request on the 20th day of the 3 month notice already issued, it need not pay him salary for the remaining 2 months and 10 days as the foreclosure of the contract of employment between them gets concluded by acting upon the request of the employee on the 20th day itself.
2) His request for early relief can not be construed as resignation so as to buy out the remaining notice period. Even in the absence of such request for early relief, any way, the organization is going to terminate his services as per the exit clause. Such a move of the employee consequent on the intention of the employer to foreclose the contract can not be treated as a new offer validating acceptance from the employer so as to compel him to make a buy-out of the remaining notice period. Similarly nor such a move can entitle the employer to compel him serve the entire notice period when the employee is prepared to forego the salary for the period. The objective behind notice of termination is primarily and predominantly to get the other party duly informed and get prepared to arrange for alternatives only and not to garner any unusual monetary gains.
9th January 2018 From India, Salem
We have had a similar case where, an employee was asked to leave because he was always late for his shift by 1 to 2 hours. He had been warned several times both orally as well as in writing that if he continues to be late, his services can be terminated by giving two month notice. However he did not mend his ways. We had to relieve him after 1 month with assurance of 1 more month severance pay salary, He did not inform anyone on his last working day and left the office without collecting the exit letters such as service certificate etc. are we still bound to pay him 1 month severance pay? Please advise.
10th January 2018 From India, Hyderabad
Dear Vijaya,
If he is a regularly appointed employee, you can not simply send him out the way you mentioned. You ought to have taken formal disciplinary action against repeated misconduct of late attendance and then terminated him. If he was a Fixed term Contract employee, then your action would have been correct. If so send everything to his last-known address.
10th January 2018 From India, Salem
Thank you Mr.Umakanthan for your response. One of the clauses of his employment agreement with us
"Your Services are liable to be terminated any time for reasons:
i) As and when the company comes to know of any conviction by the Court of Law during the tenure of your services with us or conviction or
ii) Because of your giving false information at the time of your appointment or concealed any material information or given any false details in the application form or otherwise as regards
Age, education qualifications, work experience, salary or any other information.
iii) Non-performance, disobedience, willful late coming or delays in work or negligence, amounting to Unsatisfactory performance
iv) Any act committed by employee which causes damage either financial or otherwise to Company’s name, reputation, done due to negligence or with a malicious intent or violation of company norms or discipline
v)Unauthorized leave or intentional absenteeism without intimation or approval or deliberate insubordination.
In cases referred above, the company may terminate your services without payment in lieu notice period."
Despite informing/warning him several times over a period of 1 year, he continued to be late for his shifts, whereby the other team members had several issues. Hence we had to take decision to terminate his service that too after giving him one month writing notice and one month salary in lieu of notice period.
11th January 2018 From India, Hyderabad
Dear Ms.Vijaya,
You have not answered my question. Any way I presume that the individual is a regular employee on your roll. What your contract of employment mentions is " Discharge Simpliciter " which means simple termination of the contract of employment. Here, I'd like to quote the following observation of the hon'ble Supreme Court of India in its judgment in U.N.Dutt & Co Pte Ltd., v. Its Workmen [ AIR 1963 (S.C) 411 ] :
" An employer can not base his right to discharge an employee purely on contract and he can not be allowed to say that under the contract he has an unfettered right to hire and fire his employees".
In your case the reason attributed for termination is that the employee was habitually committing the misconduct of late attendance. Then you ought to have conducted a domestic enquiry into the charges before terminating him.
11th January 2018 From India, Salem
He was a full time employee. We did conduct an internal enquiry. He accepted his mistake and asked us for one month time to be regular. We gave him the time asked for. Yet there was no improvement. Subsequent to that also, he was not being regular. One of days when he came late to his shift and then also did not start work immediately. There was a huge service outage in the meanwhile and he was not alert and did not respond to rectify because of which, there were several complaints received from clients. His TL, TM and other seniors spoke to him about his negligent behaviour. He said he was tired and not well hence did not attend to the outage for 5 hours. This resulted in losing one of the customers. We had but no choice but to let him go with severance pay.
12th January 2018 From India, Hyderabad
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