Umakanthan53
Labour Law & Hr Consultant

I am currently working with a prominent company and have resigned from the company two weeks ago. I have asked for a waiver in my notice period of 90 days by 40 days approximately. The reason for resignation is to change sector I am currently working in and seek out new opportunities. The reason for early release is my scheduled travel ( pre-booked) and I have a small medical procedure scheduled before the travel.
My partner ( performance manager) is not willing to accept my early release despite offering the buyout of notice period option. I have given him all the reasons as well but he is still not ready to budge.
My appointment letter mentions the following in termination clause:
" Upon your confirmation, either Party shall be free to terminate this Agreement at will and, at any time, with
or without cause, upon ninety (90) days prior written notice by the Party desirous of terminating this Agreement
or payment of equivalent salary in lieu thereof or a combination thereof, at the discretion of the Company. In the
event you exercise the option of terminating this Agreement within twelve (12) months from the date of joining,
in addition to the ninety (90) days written notice or salary in lieu thereof or a combination thereof, you shall also
be liable to reimburse to the Company any joining bonus paid to you by the Company at the time of your joining
the employment of the Company."
I am aware that once I handover all the assets and sensitive data to the company, the company cannot take any action against me except asking me to pay for the missed out days in Notice Period ( which I am already ready to pay for). Please advise me on how to go ahead with the same. I do not wish to stay in the company as I mentally cannot sustain in such an oppressive culture.
30th May 2018 From India, New Delhi
Dear friend,
Such a flat refusal of your employer banking upon the discretionary clause of the contract of employment is highly deplorable apart from being viewed as a very calculated move of defeating the purpose of notice clause. A discretion conferred upon the employer as a party to the contract of employment stands impliedly defined in terms of equity and fair play in the matter of execution of the contract. Any stern argument from your end in this regard may result in making their stand more rigid. A bold decision of simply paying the notice salary and walking out dictated by the circumstance may even be legally sustainable but it may tell upon your future career. So, better make a polite representation to the C.E.O and convince him to accept your offer of total buy-out. I think that yours must be a senior position in the hierarchy. Therefore, transfer of charge like assets and valuable data is a two-way process and you can not just leave them on your table to be taken and simply walk out. Hence this kind of precarious situation in employment always demands tactfulness and patience rather than giving room for any legal tussle in haste.
30th May 2018 From India, Salem
Thank you Umakanthan Sir. I agree with you and completely understand that things must go the amicable route to avoid any legal repercussions that may occur.
Having said that, I would also like to bring to notice that I have completed all my knowledge transfer and deliverables. I have no work whatsoever. The reason for my resignation is not new employment but to come out of the current one and start afresh in whatever way favourable.
I certainly wonít be handling over the assets randomly but would go to the helpdesk of the company to complete the formalities.
I have been trying for 15 days to make peace with my partner but the partner is forceful and that is something that I cannot stand anymore. In a one sided contract , one cannot be assertive to this extent.
I donít plan to abscond from the company but given the hardships, I want to understand my other options.
30th May 2018 From India, New Delhi
I understand, my dear friend. It is an irrefutable fact that in certain precarious situations we stand perplexed when any two options present before us are seemingly correct from their own perspectives respectively. Only our gut feelings can guide us choose the most appropriate one. Therefore, either you may push the garden leave by neck till the expiry of the actual notice period or quit the job forth with by paying the notice salary. There is an adage - " No one can give you a better advice than yourself!".
31st May 2018 From India, Salem
Dear friend,
In your appointment letter the clause "or payment of equivalent salary in lieu thereof or a combination thereof, at the discretion of the Company" remained as a hurdle for your buy out option.
Instead of worsening case or to save from ego clash, approach the highest authority to consider your prayer.
The suggestion of Mr Umakanthanji is right and justified.
1st June 2018 From India, Mumbai
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