Employee Resigned with Short Notice: Can We Take Legal Action or What Are Our Options?

Dear Seniors,

I want to know if an employee resigns with 10 days' notice instead of 30 days, can we take any legal steps against the employee? If not, then what else can an employer do? It's very urgent, please help.

Riya

Dear Riya,

An employer can deduct the equivalent amount remaining for 20 days from the Full & Final dues, regardless of the total amount.

Sanjay Gupta

Dear Riya,

If you need the service of the staff and want him to serve the notice:

1. Immediately, first put down the same in writing and have him sign the paper as his acceptance. Ensure you also send an email to the staff. This is crucial for you.

2. If the staff does not cooperate and still decides to leave, inform him of legal consequences. Have a legal letter prepared and handed over to him before his LWD.

3. The legal notice must have the clause of compensation that you would recover from him, such as the cost to the company incurred for recruiting, placement commission, training, etc.

4. The Legal notice should also mention that the company will not give a NOC or release/relieving notice, and this will be detrimental to his joining a new firm with a clean record.

5. You can appeal to his emotions verbally and ask him to comply with the management, which is just a matter of 30 days.

6. If, however, the staff is ready to pay all the costs, you would have to relieve him with testimonials/certificates with/without remarks, as one cannot bind someone.

7. Get to know the reason for a staff not cooperating. Investigate something for the staff not cooperating.

One more important thing, which is out of context to your question but important, ensure that IT and Business information is well protected during his Notice Period.

Hope the above will be useful.

Regards,

ukmitra

I think forcing an employee to serve their notice period is not good. Rules are for people, and even as an HR professional, I don't like to force others. I would suggest allowing employees to leave flexibly. Am I wrong? Let me know.

Serving notice is mandatory, but it's up to both parties (employee and employer) to honor it. If one fails to honor it, one has to pay the damages, so to speak, or deduct the equivalent amount from his or her pocket. The company does not have the legal right to force an employee to only work for the notice period unless it was stipulated in the contract.

Please let me know if you need any further assistance.

It is based on the terms and conditions you mentioned in his offer letter or your company policy. Sometimes, you also need to look at how important the position he is holding is or as a member of the project (employer's point of view).

Dear Riya,

You can take any action if you have been given an appointment letter with terms of service conditions. If you don't have one, then you have no right to deduct any amount. The only way is through motivation, such as relieving you from your position after the new employee joins.

N.H. Madhual
Delhi

Riya,

It is not possible that you can take any legal action against the person who is resigning from his/her post with a notice period of 10 days or whatever. However, if the employee does not provide any notice period or information and joins another company, then only you would be able to take any legal action against that employee.

Hope this information helps you. If you have any further queries, please feel free to contact me.

Yes, it is quite good for both the employee and the employer that the employee has to compensate the employer for the next 20 days during which he has to find a new alternative. So, it is quite fair that he may demand the compensation.

Thanks and regards,

Dagar

Offer letter and Appointment letter are contracts of will. Either party can break them. One cannot force employees to stay with the company. We will have to sit with the employee, explain the consequences of not getting a relieving letter if not served the notice period. Also, mention that they will not receive feedback from HR if the background check verification is not completed. Be persuasive and avoid being aggressive.

Dear UK Mitra,

I see from your post that your location is Saudi Arabia. My dear friend, that explains your opinion. However, I must inform you that in a country like India, the largest democracy in the world, the system tends to be fair and just to both parties.

In India, you cannot force an employee to work, nor can you force him to sign papers indicating his consent to work. This practice may be common in Middle Eastern countries/Sheikhdoms.

In India, such coercive tactics amounting to extortion, wrongful confinement, etc. will invite a host of criminal proceedings against that person/company.

In fact, in every legal document in India, one has to state that it is being executed without any pressure and out of the free will of the individual. Kindly bear this in mind.

All you can do is recover/deduct 20 days' salary from his full and final payments.

Kindly give suggestions and opinions with respect to the law of the land.

Dear Riya,

Hope your doubts have been addressed by the posts from other members as well.

Warm regards.

One question - why cannot an employer work on a 10-day notice to complete the handover? Even CEO positions can be handed over in 3 days flat if necessary. All the periodic reviews by the supervisor in the past must surely document all office matters and employee contributions - if not, the company may lack good systems.

Remember, a disgruntled employee serving a 30-day notice in the office can complain to the team like a martyr and, within two weeks, destroy the cordial atmosphere and damage the system financially.

Dear Friends,

Suggestions made by Mr. UK Mitra are rather drastic and not tenable. You cannot force an employee to serve out his Notice Period. All that you can do is to recover from the employee salary in lieu of the shortfall in the Notice Period. You cannot take any valid legal action in such matters.

Vasant Nair

Dear Riya,

You will deduct the salary for 20 days because he covered the notice for only 10 days, and I suggest that you deduct the salary for 20 days.

Regards,

Guneet Kaur Manager-H.R

Dear Riya,

1. That depends upon the service period of the employee. If the employee has completed their probation period and has a confirmation letter, you can take action with a 30-day notice period only. Otherwise, if the employee has not completed their probation period, you cannot take any action against them.

2. If you have provided an appointment letter with terms of service conditions, and the employee has accepted them, and you have proof, then you can take legal action against them. If you don't have these documents, you have no right to deduct any amount or take any action.

Thanks,
Name: Amit Sharma
"amitsharmaji@rediffmail.com"

You can not only deduct his 20 days' salary but can also deduct his full month's salary since he has not completed the notice period. The notice period means the full period; even if one day is not served properly, you can actually deduct one full month's pay. Secondly, you can also proceed legally under criminal laws if the handover of property was not done properly. You can also complain to his present employer and inform them that you have not relieved him.

For more specific information, you can email me at [Login to view].

Regards,
Pankaj V. Bandekar
Advocate

Dear Nair and Raj,

I have already, in my past company, taken legal action to recover the cost for a staff member who had not served notice, and we had recovered approximately INR 75,000 from the staff. Please consult your company advocate.

Dear Raj, what makes you think that a person working in KSA does not know about India? I am in KSA but spent more than a decade in India professionally. Therefore, I believe that based on location, experts like you should refrain from commenting on others' judgment and suggestions. Everyone should be free to express their thoughts. This is one thing I don't appreciate about some experts. Let everyone have their say on what they feel.

1. Nobody is forcing the staff to sign a document. However, as a course of action and to safeguard the company's interests, the management's decision must be provided to the staff in writing as evidence for later reference.

2. The staff receiving the document has the choice to accept or reject it. HR will make a record of their decision accordingly.

3. In criminal/civil court, all communications on any subject will be considered valid evidence, including the offer letter and any other documents served to the Defendant, such as email messages. Therefore, I had advised the concerned to provide the company's decision to the staff promptly in writing.

4. Having discussions/counseling with the staff to complete the 30-day notice period required by management, and explaining the consequences if not followed, does not amount to coercive tactics, as implied in your message. It is a way to avoid complications, legal actions, and expenses that both parties would otherwise incur.

5. I had previously mentioned that if the staff is willing to pay for the notice period, they will be allowed to leave. Please ensure you have read the entire message.

Lastly, I would appreciate it if HR experts refrain from making passing comments about others. Instead, provide suggestions, and let the individuals concerned make their decisions based on what they believe is fair and correct.

Regards,

UKmitra

Dear all,

Thank you for all your time and suggestions. Actually, I had informed my directors that we cannot take any legal action against such a case. However, they are insistent and want to cause trouble for the employee simply because he is joining our competitor's company. As an HR professional, I cannot accept such an attitude from the employer, and I have made the decision to resign from here.

Please assist me in finding a new job in the NCR region.

Thank you.

Hello,

I totally agree with the views of Anonymous. I would like to add another aspect to the suggestion. Instead of deducting the amount from the payables to the employee, you can adjust the balance leave for the shortfall of the notice.

Hello, don't resign from the organization as such situations are challenging for HR personnel. It is not just about becoming a good HR personnel; it is essential to face and overcome challenges rather than avoiding or running away from them. Stay and work on grooming yourself.

Hi Riya,

It is always good and safe for the employer not to force the employee who is not willing to serve the notice period because once the employee has decided to leave the organization, there is no point in forcing him to stay with the organization. There is a chance of misuse or damage to company data. In case the contract states that the person has to pay the notice period, you can recover the same from his/her full and final settlement if required.

Thanks and regards,
Jerosia

[QUOTE=das.jerosia;923499]
Hi Riya,

It is always good and safe for the employer not to force the employee who is not willing to serve the notice period. Once the employee has decided to leave the organization, there is no point in forcing him/her to stay, as there is a chance of misuse or damage to company data. If the contract states that the person has to pay the notice period, you can recover the amount from his/her full and final settlement if required.

Thanks and regards,
Jerosia

Dear all,

Thank you for all your time and suggestions. Actually, I had informed my directors that we cannot take any legal action against such a case. However, they are insistent and want to cause trouble for the employee simply because he is joining our competitor company. As an HR professional, I cannot accept such an attitude from the employer, and I have decided to resign from here. Please help me in finding a new job in NCR.

Dear Riya,

It is reassuring to know that the idea was not yours. I understand your predicament and empathize with you. Many good HR professionals often face such problems. We must find a balance between our personal values, corporate ethics, and the suggested imperatives. It is not an easy situation, and we all aspire to work for an organization where we can contribute wholeheartedly without any fear or favor.

Warm regards.

Hey Guys!!

As HR practitioners, let's all be positive in our approach to handling people-related issues. All this talk about legal action, police complaints, etc., pains me. Can we not train ourselves to demonstrate a caring attitude even towards people who have left the company or who are on the verge of leaving the company? Somehow, suggestions of legal action, etc., against an employee who has not served their notice period do not appeal to me. There are several more effective and better ways of handling people-related issues that will lead to a win-win situation. I know of a situation where the MD of a company, in sheer frustration, had, in the same letter, terminated the services of an employee four times. One can only laugh at such juvenile acts.

Best Wishes,
Vasant Nair

It sounds good to hear that HR is supported by the employer for the employees, but ultimately HR is always working as employers wish. They can never fight for employee rights... :(

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The employer can and should deduct the amount due for the period without notice. This is the only way out if the employee does not cooperate.

Thanks and Regards,
Dagar

Dear all,

The person who decided to resign from the company actually stops working for the company afterward. They are looking around for the skills, information, or whatever it is that they can take along with them when they leave the company (if they are intelligent). If someone is kept by force, they have a tendency to cause issues that may appear months after their resignation! Why don't you think about such cautions?

I normally suggest to the management to release the employee with a notice period starting from the next day after we accept the resignation! They will not be allowed to use PCs or any other official items from then onwards.

If someone really wants to resign from the HR & Admin department, DO NOT let them serve the notice period. Don't accept their resignation until you find a substitute. As soon as you receive the resignation, pay them the notice period and release them as early as possible.

You can ponder the reasons behind this, can't you?

Best regards,
Mammu

Hi Riya,

This is not a suggestion but my opinion on the issue. I suspect this is a case of a personal relationship gone bad between the two parties. It seems to me that the employee is willing to bear the necessary damages, but the employer has a personal vendetta against him/her!! This is not only unprofessional but also outrageous. Your decision to resign further strengthens my opinion. My greatest appreciation for being true to yourself.

I wish you the best.

Dear Riya,

Hats off to you! You have surely shown tremendous courage and steel in your spine. Best of luck, and do keep in touch. I admire your attitude. Keep it up.

My email is: vasantnair10@gmail.com.

Cheers!!!
Vasant Nair

An employer can deduct the amount equivalent to the remaining 20 days. How is the amount calculated? Is it based on the basic pay? Is this the rule for all companies?

I have faced this challenge a couple of times and agree that even if we want to safeguard the company's interest, we cannot force an employee to work out the entire notice period. We usually persuade the employee to complete the handover process and release them before the notice period. If you force them to work, they turn the workplace toxic. That will harm you more than 15-20 days of their notice period. As soon as an employee resigns, the handover process comes into play. You never know when a happy ex-employee rejoins or helps your company by spreading the 'Good Word' about their last organization.

Thanks,
Alex