Can My Friend Skip the Notice Period to Join a New Job During Probation? Seeking Advice

My friend got a job in an IT company as a mid-level position. He joined in the last week of the month and served there for 4 days. On the 5th day, he received a very good onsite offer from Company B. Consequently, he resigned from his current position to accept the onsite offer. He signed the Service Agreement contract on the company's letterhead, which states a 2-month notice period and the company's right to recover salary in lieu of the notice period. He is currently on a 3-month probation period during which he has not received any salary or been assigned any work. He does not require any relieving or experience letter from Company A.

The question is whether he can join the new company directly without fulfilling the notice period or if he should pay it. I would appreciate your guidance on the different options available to resolve this situation.

Ideally, the actual notice served should be in accordance with the appointment terms. Normally, during the probation period, the notice period is very short, i.e., 15-30 days. Please verify this information. If the amount is not significant, it is better to settle it. In many cases, negotiations can result in a lower amount for salary recovery settlement.

Furthermore, suggest speaking to current and former employees of the company to gauge how assertive the HR department is regarding salary recovery. On a lighter note, since he has recently joined and has not been assigned any work, HR might release him without any recovery at all. However, do not expect a relieving letter promptly.

Hi,

Steps your friend may follow:

1. He must formally submit his resignation with immediate effect.
2. During probation, the notice period may be one month or less. Let him negotiate to be released without any notice pay.
3. He may choose not to obtain an experience letter since it may be challenging to justify resigning after only five days. Therefore, there is no need to include this brief job on his CV.
4. However, he should obtain a relieving letter as proof that he has completed his full and final settlement with company A, ensuring no future issues with the company.
5. He should prepare a convincing explanation for HR regarding his decision to leave the company. If he is unable to pay the notice period amount, expressing willingness to forfeit four days' salary may facilitate a hassle-free release.
6. His position is strong as he is not requesting an experience letter or payment for the five days worked. His primary goal is a trouble-free release from company A, which should not pose any problems.

Thanks,
Geeta

During the notice period, one does not have to give notice pay, but all will be determined according to the appointment letter that was signed by the employee.

The appointment letter is a contractual agreement between two parties - the employer on one hand and the candidate (employee) on the other - signed to give shape to a professional relationship. This agreement is a contract of employment. Once this contract is signed, both parties are obliged to honor the terms and conditions stipulated in the contract. In the instant case, if the terms and conditions contained in the appointment letter require the employee to give 2 months' notice upon resignation from the service of the employer during his probation period, well, I am afraid the employee is morally and legally obliged to honor this commitment he agreed to when he signed the appointment letter.

Agreed, your friend has found a better job and would like to take that up; well, he will have to either serve the notice period or pay salary in lieu thereof. Not doing so may attract legal action by his present employer if they choose to go legal on the matter. Just imagine a situation where the employer were to tell the employee after 4-5 days of his joining the company that they have found a better candidate whom they would like to employ in his place and ask the current employee to leave without any notice or salary in lieu of notice as per the terms of the appointment letter. How would the employee feel?

Employment is a two-way process with certain ethical, moral, and legal bindings, and one should, in all fairness, be always prepared to honor these basic commitments. In the present case, he has the following options:

1. Just walk away and join the new company without any reference to the present job.
2. Resign, serve out the notice period, or pay salary in lieu of the prescribed notice and gracefully exit from the organization in a tidy manner with a relieving letter, service/experience certificate, a farewell party, etc.

The choice rests with the person concerned.

Best wishes, Vasant Nair 9717726667

Geeta, I am afraid I would not agree with you on what you have suggested. Please respond to what I have stated in my response.

Best Wishes,
Vasant Nair

Vasant Nair has put the right thing: if the employer feels that they have a better candidate than you just after your joining and asks you to resign, what will be your reaction? However, from a legal point of view, an employee leaving the organization without serving the notice period, even if the contract of employment says so, is not an offense. There is nowhere written in the labor laws that an employee should give notice of one month or three months to leave. On the other hand, if an employer wants to terminate one's service, they should give notice. This is because all labor laws are made to protect employees and not just for the sake of employers. I don't think that there has been any case lodged by any employer against an employee who left without giving notice or paying notice pay in lieu of the notice period. This is because a contract prohibiting one's right to take up employment is voidable.

Regards,
Madhu.T.K

It seems your friend got an offer from another company after he has joined his current company. Ask him to take it as a normal resignation. He can negotiate the joining time with the new company he wants to join. And then explain the situation to his current boss/HR.

Normally, no company wants to invest two months in a new joiner who is going to quit. So they can be convinced to waive off his notice period.

Fully agree with Madhu sir, very well explained. As there is no law which restrains an employee.

Sanjay, Advocate

Thank you to everyone for all your responses. My friend has managed to negotiate a 1-month notice period payout with Company A. Now, Company A is requesting him to pay his gross salary for the 1 month. The offer letter does not specify whether he should pay the basic or gross salary as part of the notice period payout; it simply states that the company reserves the right to request notice period pay.

My question is, what should he pay as the notice period payout? Is there any labor law that mandates paying gross salary or basic salary in lieu of the notice period? My friend served for 4 days without availing any Flexible Benefit Plan (FBP), House Rent Allowance (HRA), or any other salary components, meaning he did not receive any payments from the company. So, why is the company asking for the full 1-month salary?

He resigned gracefully and seeks a clean exit, but the company seems to be introducing new obstacles. Please advise on the possible options available to him.

Thank you,
Brajesh
+919886997410

Dear Brajesh,

He is not required to pay anything. It would be really Shylockian for the company to insist on such things when a person has served for only 4 days. Just ask him to submit his resignation with 'regret' and 'request for waiving off any notice period,' and forget about the whole episode.

Please see the comments of Mr. Madhu T.K. He is absolutely correct as far as practicalities are concerned. Generally, companies do not bother with such trivial issues; they would rather utilize the time to look for replacements.

Regards.

Hi,

As already mentioned, there is no law under which the employee has to pay a notice period if he resigns from the service. However, if the employer retrenches, then the employer has to pay in lieu of notice under the Industrial Disputes Act.

Sanjay Advocate

Even when an issue of salary arises, there will not be any relevance to allowances, but only basic salary and dearness allowances constitute salary. When interpreting salary for calculating layoff compensation or retrenchment compensation under the ID Act, salary means basic salary and dearness allowance. Therefore, the question of gross salary does not arise at all.

Regards,
Madhu.T.K

I would suggest your friend pay the money asked by the company and join the new job. Before leaving for abroad, he should file a case against that company through a good labor lawyer and pray for suitable compensation. He will certainly get back his money one day or another.