Hi All,
Requesting the seniors to advise on below matter - One of our employees has resigned since he got another offer and he has requested to negotiate the current notice period of 60 days to 30 days or else he was willing to compensate the notice period amount. Under the current critical circumstance of the team, we were unable to approve the request and now he has decided to quit during the notice period, leading to termination. What actions (including legal) should we take in this matter further. Please suggest.
Thanks & Regards,
Drishya

From India, Tellicherry
Dear Drishya,

In my opinion, terms of the contract of employment and the specific rules and regulations framed in its wake are there only to be genuinely followed and not to be flouted suiting any one of the party's convenience. So is the case of the bonafide use of exit clause in the unilateral termination of the contract of employment. If the exit clause permits the option of buy-out by the emplyee, the refusal by the employer on the apparent reason of tight work schedule, very particularly, when the employee is prepared to serve the half of the notice period, seems to be unreasonable and the following disciplinary action resulting in the employee's termination would be a bad HR practice.

When the employee had already intimated his intention to serve the part notice period and buy out the rest, why don't you look for alternative arrangements in stead of outright refusal?

The universally accepted fact is that nobody's service is indispensable in the life span of an organization. When a better opportunity is available in the employment market, anyone will try to capture it. If you want to retain his services, there are other methods like offering him better benefits.

No ideal employer would try to exploit the weaker position of his employee by refusing to exercise his own discretion in an impartial manner. It is always better to abide by the terms and conditions of the contract of employment in their letter and spirit instead of trying to plug the legal holes.

From India, Salem
Hello Drishya,
Umakanthan has mentioned a very valid aspect of HR Policies AND Practices.

Of late, HR professionals tend to mix-up the implementation of an existing Policy & the crux/spirit behind it's framing. Too often Corporations begin to behave like Govt Departments--going by the rules than focusing on the spirit of the Policies & adapt along the way.
I am not sure what would the Company have expected to gain by INSISTING this employee to serve the full Notice Period--unless the handing-over process is expected to last the full 2 months [in which case, fixing the NP @ 2 months wasn't right in the first place--some buffer is always added when fixing the NP to cater to unforeseen situations].

To add to what Umakanthan mentioned about the way to handle this issue, pl note that you are NOT dealing with just this case here. The Company is sending out a clear message to the rest of the employees--on HOW to handle their resignations if & when that time comes. When you wish to follow the Rules rigidly, then the employees also are prone to follow the Rule Book rigidly, many times to the detriment of the Company--case in point, attendance timings.

To give you an example of the case of a candidate last week whom we placed with one of our clients: this candidate's present Company has the practice of holding the salaries--including the current month--of anyone resigning until the person is relieved [NP is 2 mnths]. So he wanted to resign after getting the present month salary on 1 or 2 Nov, 2021. Legally or technically the guy may be right--BUT he too doesn't relish doing it. But the Company left him no choice due to their short-sighted Policies. The guy needs to support his family & so he found out a shortcut to ensure he is not effected much--it's a pity that the Company doesn't recognize this simple fact of life.
When the Company thinks just for itself--thru the various Policies & Practices--how can one blame the employee for thinking about themselves FIRST & foremost?
Do you think this person will show any serious interest in whatever period he would still be spending in this Company? And except for ensuring that the HR Policy has been followed to the hilt, what else does the Company hope to achieve?

Suggest design HR Policies that result in a Win-Win situation/solution for all the stakeholders.
Else it's only a matter of 'when' than 'if' when situations can become nasty the way your case seems to have developed into--going legal may not be the right way in all scenarios. In this very case, my guess is that the Company may have to spend much more on legal/advocate fees than it's saved now. Penny-wise/Pound-foolish probably?
And also, in a single line, you have ensured that the brand image of your company doesn't get a high score in various social media portals IF this guy decides to share his experience with the world.

All the Best.

Rgds,
TS

From India, Hyderabad
Thank you for your valuable feedbacks.
I have already tried to solve the issue by pushing on the notice period compensation, but the management is insisting for a legal action since they are afraid that it would motivate other employees also to leave the organisation in a same way due to the constraints of a start-up.
Anyways hoping for the best!

Thanks & Regards,
Drishya

From India, Tellicherry
Hello Drishya,
Remind your management one simple fact of life & HR: An employee leaves the Manager NOT the Company [in your case the management].

So sooner they fix the actual causes, the better for THEM, not the employees.
IF the management goes legal, they can bet their last penny that the employees will find other ways to circumvent the situation--gone are the days when court cases can be used as a weapon.
With Social media so strong today, @ the EoD, it's the companies that will have to bear the cross than the employees.

Your management thinks going legal is the best solution to solve this issue--but they also seem to forget that this very same solution also has a high probability of ensuring new employees just don't get interested to join your company. At best, the chances are that they may attend Interviews, take the Offers AND then use the Offers elsewhere for better terms. And I have seen this happening so many times UNTIL the Companies learnt the hard way after getting hit multiple times.
Hope you get the point.

Rgds,
TS

From India, Hyderabad
Dear Drishya-Pradeep,

In my opinion you should consider the request of buying out 30 days notice of the employee. Because in every appointment letter the clause "either party can give notice of 60 days or pay in lieu of that notice. This cause implied that the buy out option is existing for both employer & employee, so denying buy-out is completely discriminatory and harassment.

Further, if your management does not want to leave the employee prior completion of 60 days notice then you go by that. You communicate the employee to complete the task and go or other wise your resignation is on hold, and leaving prior to notice period would lead to termination of services. The action of termination for absconding job is justified on part of the employee. There is no need to go legal, let the employee challenge his termination in court. It would be difficult on his part to get into new job without reliving letter and experience certificate.

From India, Mumbai
Dear Drishya,

Being HR Manager, you simply need to pay attention to the contract terms between employer and employee. Where terms are clear and transparent, don't hesitate to convince the management that company may be loose the case in court also, which will effect employer company financially and reputation wise also.

Dr. M. K. Ravi
Advocate

From India, Delhi
Hi Niharika Here,

I want to confirm that our one employee want to resign the job due to some personal reason. So we request to the employee that you wait for the one week for the replacement. One employee joined in within two days so you handover the all thing then you leave & in between if you want to take a leave or half day then you can. But in same day she leave the office without the any intimation and then she not ready to come in the office for the closed exit.

What the legal action i will take.

From India, Mumbai

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