Dinesh Divekar
Business Mentor, Consultant And Trainer
Nathrao
Insolvency N Gst Professional
+1 Other

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I am working with a top IT company.
After spending 5 years with my current employer, I decided to take up a new opportunity. I resigned with the required notice period of 60 days. During the notice period, I had to take 4 days of personal leave for urgent reasons, and I communicated this to my manager too. Even though I have good sick leave and personal leave balance, the company does not allow taking leaves without loss of pay. But the loss of pay was ok with me, as my leaves were of very urgent nature.
Now one week before my last working day, HR and my manager are forcing me to extend my notice period by 4 days. They are saying that I will have to face strict disciplinary action including possible termination from the job and withholding the final salary and experience letter if I do not extend.
Questions:
1) Can the company force me to extend my last working day?
2) Can they legally withhold my experience letter and last month's salary?
3) Can termination lead to any issues with the new company I am joining or for my future employment prospectives?
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The company is acting illegally.
The Delhi High Court, in one of its judgement, said that an employee can take leave during the notice period if nothing is mentioned in the appointment letter which bars the employee from taking leave during the notice period, if he has leave to his credit and is entitled to the same.
Talk to higher level officials with your problems.
Termination etc can have adverse consequences to the extent that you will have to keep explaining to every new employer the problem and convince them.
If your new employer agrees,put in 4 more days of wrok and amicably solve the issue.
Dear Techiegirl,
Mr Nathrao has covered everything and there is nothing more to say. Nevertheless, I recommend you concentrating on the last line of his reply. It is on importance of settling the issue amicably. At the last leg of your tenure, I do not recommend you to take on your employers. Yes, they are legally wrong, however, employers always enjoy a whip hand and they have might to fight legal cases. Even if they lose the case, their brand image remains intact and they will continue to attract the job candidates.
By the way, how were your relations with the superiors? Were these strained? Even after spending five years in the company, why they are creating the problems for you? More than HR, I feel that your Manager wanted to teach a lesson to you. Your manager could have very well told HR to waive off this rule of extension of notice period. Far from intervening, he is also joining HR in threatening you. This speaks volumes.
Woes of IT professionals are compounded because of two reasons. One is that they do not have labour union. In fact, IT professionals frown at the unions without understanding how these can be helpful to them. Any labour union would never have allowed to make this kind of rule of a leave that is grounded to the labour law.
Second problem is that howsoever hi-fi qualification HRs of this industry might have, they have poor understanding about the labour laws. They live in their own world, as much average IT professional lives in.
Lessons for HR: - The post has been written by a member who is from "Top IT Company" of India. The post shows how HRs make ridiculous rules that have no legal validity. Mr Nathrao has quoted a court ruling about availing of leave during notice period. Why HRs from prominent IT company do not know about this ruling?
When it comes to HR jargon, "Employee Engagement" is the most dear phrase amongst the HR community. By framing such quixotic rules, can any company engage their employees. Employees are spokespersons of the company, be them current ones or former ones. By coercing the employees, can any company create positive spokespersons in the job market?
Though the HR may make rules in their company that are contrary to the labour laws, these very HR Heads may become speaker in the seminar and give lecture on leadership, employee engagement and so on. Unfortunately, how their talk conflicts with their walk goes unnoticed and it is going to be unnoticed even in future also!
Thanks,
Dinesh Divekar
Dinesh and Nathrao,
Thanks for your replies. Unfortunately, extending the last date is not possible, as I have talked to the HR of my next company and they want me to join right after I quit the current company. (They have a client project that is waiting for someone with my experience.)
My relation with my current company has been fantastic in these 5+ years. In fact, they tried their best to retain me with a counter-offer when I resigned. But the next opportunity is too good to be passed on. I have a very high work ethic, and in the last 60 days, I have slogged harder than usual to ensure that the project does not get derailed because of me leaving the organization. Even the client has sent an appreciation mail to my company mentioning that they want a replacement resource comparable in experience and skills to me.
However, they are acting so weird because they have not found a replacement for me, and they fear that the client may replace them with a different vendor. What surprises me is that they have not found a replacement in 60 days, but they believe that by extending my last working day by 4 days, they will magically find one and retain this client project!
Dear Ma'am,
Please allow me to draw some value in the above discussion from the legal point of view based on the earlier three questions: -
1) Can the company force me to extend my last working day?
Form the legal point of view you are suppose to serve prior notice before you leave, in reference to the appointment/contract Letter. You have already done your duty and now it is for them to decide for your replacement or otherwise. Also on the contrary they cannot force you to work after your last day as mentioned in the notice. But upon mutual understanding this can be done but certainly not under any forceful means or fearful means!
If they continue with the forceful means or blackmail, you do reserve all the right to file a police complaint against your employer or against all those correspondents.
2) Can they legally withhold my experience letter and last month's salary?
Legally no employer can withhold his/her employee’s salary and documents without any reasonableness. Because her you have some justification and similarly they also do have and all parties are justified before self!
If there arising any dispute, that matter can be settled before the adjudicating authorities. Let the Tribunal then decide whether you are eligible for your payment or otherwise!
3) Can termination lead to any issues with the new company I am joining or for my future employment prospectives?
It varies from Company to Company. Apart termination is not so easy that it is based on somebody’s whims. At least till the democracy is prevailing in India or the employers become the president of India!
Also the termination order can itself be challenged before the Court of Law and very smoothly you can drag your HR before the Court for examination and cross examination!
It is advisable to please communicate in written to the HR that the extension be done upon mutual consent and not on any disrespectful condition or force. And don’t forget to take a receipt of that.
Dear Madam,
It appears that you have fulfilled your obligation of giving 60 days' notice before intending to leave.
During this notice period , you had to take 4 days' leave and employer may or may not refuse it depending on the applicable leave rules. If he refuses, then he can deduct 4 days' salary from your dues but cannot insist to serve 4 more days. Besides , for not complying with this illegal insistence, he has no legal powers to threaten you by disciplinary action of termination. I think this threat is only empty threat only to frighten you.
You send a mail to the highest authority, stating that you have not faulted in fulfilling your notice obligation and requirements of the project and that threats of termination by HR/Manager are baseless and illegal and request him to settle your dues, give relieving and experience letter forthwith.
You walk out after fulfilling formalities relating to proper handing over charge etc.
Regards,
Vinayak Nagarkar
HR- Consultant.
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