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JOSHI NITIN KALYAN
An employee joined the Organisation on 19/07/2021 and due for confirmation on 19/01/2022, but due to some technical issues, Management not issued Confirmation letter to employee, but send him mail from Dept. Head's official mail id on 20/09/2022 stating that his services are confirmed.

Management issued a written confirmation letter to him this month before Diwali, but he has not accepted the same and the next day resigned from his post giving one month's notice. But as per his Appointment Letter, 3 month notice period is eligible after confirmation.

My question is, whether this employee needs to serve One month's notice or Three months' notice?

Regards,
Nitin


PROFESSIONALS AND BUSINESSES PARTICIPATING IN DISCUSSION
Saswatabanerjee
Partner - Risk Management
Vmlakshminarayanan
Agm - Hr&admin
KK!HR
Management Consultancy
+1 Other

vmlakshminarayanan
919

Hi,

Few questions

Why confirmation letter not given even after lapse of 8 months from the date it is due ?

Any extension of Probation letter issued ?

Any face to face discussion took place for the delay in confirmation letter either with HR or immediate superior.

Did he acknowledged the confirmation letter issued to him through email ? Did HR followed up for the same?

Did he followed up for his confirmation letter after the completion of six months?

If your answer it NO, then employee has the right to serve one month notice in the absence of any proper communication to him.

From India, Madras
saswatabanerjee
2383

A mail from the HOD confirming his appointment is adequate to consider that his probation is over.
Therefore the 3 month notice pay applies.

I am curious though, why did you suddenly issue the letter 8 months later? Why was it necessary to rock the boat.
If the letter was dated current, then well, he is right in saying he refuses it and the 1 month notice applies.

From India, Mumbai
JOSHI NITIN KALYAN
Thank you for your valuable inputs..

JAWAHAR LAL MOONDRA
32

Every agreement is a bilateral, means it requires acceptance of both the parties under reference. In present case

1. The employer has made inordinate delay in issue of confirmation letter without assigning any reason whatsoever.

2. Also there was no written communication on extension of probation period of employee by the company.

Therefore, the fault started by the company.

In such case, the employee has every right to accept and/or reject the offer made by the company thru confirmation letter. Since the confirmation made by the company was not accepted by the employee, therefore conditions mentioned in the confirmation letter are not applicable on the employee and the conditions mentioned in the initial appointment letter appointing the employee under probation period shall govern the relationship between employee and employer.

Therefore company can not ask for a 3 months notice pay from the employee and shall have to contain with one month notice period, if the same is mentioned in the initial appointment letter appointing the employee under probation period.

Jawaharlal Moondra
98290 28028

From India, Jodhpur
KK!HR
1530

There is no question of an employee accepting or rejecting the confirmation letter. The department head had sent mail on 20.09.22 followed by the regular communication issued before Diwali. The order of confirmation from service becames effective when HOD conveyed it. The employee did not react to it, then he/she does not have any right to reject it after formal order is issued. The 8 month long delay in issuing it is an inordinate delay, is the present order stating anything about the intervening period?
From India, Mumbai
saswatabanerjee
2383

KK,
I think there is another aspect to it, unfortunately, the OP has not bothered to even respond to our posts and queries.

If the company has given a confirmation letter of current date, then the mail from the HOD is basically meaningless, right?
In that case, the employee can reject the confirmation and say he does not accept it.

Now it becomes a techno-legal question as to whether the confirmation letter is an offer that needs to be accepted to become a contract, or it is a statement of status in line with the agreement originally signed (that is the acceptance of the job and the appointment letter). It would depend on what exactly the letter actually said.

Since the OP has not replied, I think it is just an academic discussion among us, but it allows me to flux my mental and logical muscle a bit

From India, Mumbai
JOSHI NITIN KALYAN
Dear Mr. Banerjee,

I think you skipped my post dated 31/10/2022 wherein I alreay mentioned that I am thankful for the inputs.

Back to the subject - Mail was sent to the concerned staff on 19/09/2022 stating that his services are confirmed after Six months only (No extension in probation period). Management was unable to issue Confirmation Letter (Hard Copy) due to some technical issue, which I already mentioned in my earlier post.

Written confirmation letter was prepared before Diwali, which was not accepted by the Employee, given resignation next day, stating notice period of One month.

In this scenario, my question was whether employee should service notice period of One month or Three months ?

Regards,

Nitin


JAWAHAR LAL MOONDRA
32

As the hard copy of confirmation letter is of current date (just before Diwali), how the company shall prove that there can be such long prolonged technical issue for 8 months from 19/01/2022 to 19/20/09/2022 ?

Even after that the hard copy was prepared and offered to employee just before Diwali i,e, another one more month from sending the email.

Such an abnormal delay on the pretext of technical issue shall go against the company, if tested legally by the competent authority and the employee shall be winner and shall enjoy just one month notice period.

Jawaharlal Moondra

From India, Jodhpur
saswatabanerjee
2383

Well Nitin,
Your one line post thanking people for the input still does not give any of us the details we needed to make an informed reply.
the matter on hand concerns interpretation that involves law, facts and circumstances. Without full details, we are doing guess work. Probably this needs to be decided by a lawyer who has access to the full facts.

You still don't seem to understand what I was trying to say.

It is clear that the company was careless in not closing the probation in time. Either they didn't bother or purposely held it back, may be to deny certain benefits (at least that is how any lawyer will present before a court). When they realised that the employee may leave, they sent an email confirming the services with retrospective effect.

There is the first problem.
Retrospective confirmation can work in favour of the employee if he wants to claim benefits otherwise denied. But it does not give the company retrospective rights. From the company's perspective, it will be effective the date of the email, at best.

Under the IT Act, 2000, email is a valid mode of communication. But if you are following it up with a hard copy on letterhead, it in effect means the email was not an official communication. It then brings a lot of things into question, including the right of the HOD to provide the confirmation. In most probability, he didn't have the right. Again, only a person (consultant or lawyer) who is onsite and can see all things in proper perspective can say which is the correct interpretation.

If the employer completed the process after a lot of delay, and in a manner that looks like it was a second thought to prevent the employee from leaving. if the matter came to court, I am sure the lawyers will claim that the employee had given oral communication that he was resigning.

The other thing I said, and I will repeat.
Was the confirmation a fresh offer of contract of services with different terms and therefore has to be accepted?
or was it a confirmation of the status of contract of services already signed and in force, with the right to change the status unilaterally with the employer. Without seeing all documents like the standing orders and the actual appointment letter, it is difficult to say. However, it seems in this case, the courts are likely to take a stand averse to the employer.

If the employer had actually confirmed him on time, it would probably be a confirmation of status, but since they didn't, it means the terms were changed (by extending the probation) and therefore the confirmation after so many months, is a fresh offer that the employee has the right to accept or reject. If he was smarter, he would have dated his resignation 2 days prior to the letter.

Giving a letter saying that the confirmation is with retrospective date does not make it so. The confirmation is from the date on which the letter was actually issued.

I have a strong feeling that the 'Technical' difficulty was that the authorised signatory was not in the office and couldn't sign the document. Which would obviously mean that the person sending the Email was not authorised to do so.

In all, I think the employee is very much in his rights to complete only 1 month notice period.

From India, Mumbai
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