Can My Company Really Demand 78 Days' Salary After My Boss Approved a Shorter Notice?

Dear All,

I need the help of all you expert people.

I had resigned with a 12-day notice period instead of the 90 days as per the company rules and policies mentioned in the appointment letter.

The day I resigned, the same day my head of the department sent a letter to the HR Dept. stating that he had no objection if I was relieved in 12 days. After completing my handover in 8 days, I submitted all the necessary papers like the exit form, etc. On the same day, I received an email from the HR Dept stating that I have to pay salary for 78 days.

In the same email, I requested a waiver of my notice period due to resigning for financial reasons. My boss verbally committed to waiving off the notice period on the day I resigned and sent a request to the HR Dept for the waiver.

Until the last day of my employment, I didn't receive any full & final settlement where my notice period waiver was considered. Later, I received an email in my personal ID from HR stating that they could not waive off my notice period and were asking for 78 days' salary, which amounts to around 60,000/-

Now, the HR Dept is threatening legal action if I do not pay the salary for the 78 days.

Can they pursue legal action? I was the most junior in the department, completed my handover, and obtained a no-objection letter from my head of the department.

I had taken a loan from the company, which was adjusted with my 16 days' salary, a process I had no issue with as it was a salary advance that needed adjustment.

But now, they are insisting that I pay for the notice period.

PLEASE HELP. WHAT SHOULD I DO? DO I HAVE TO PAY FOR THE NOTICE PERIOD?

I have both the email where it has clearly written by my head of the dept that he has no objection of my leaving in 16 days. And in other email he has requested HR to waive off my notice period.

Corrected Version:

I have both the email where it is clearly written by my head of the department that he has no objection to my leaving in 16 days. In another email, he has requested HR to waive off my notice period.

You have to give a notice period of 90 days as per the terms of the appointment letter. If they release you before the expiry of the notice period, you will be paid up to your last working day. Otherwise, you have to comply with the conditions enshrined in your appointment letter, which was accepted by you while joining.

There can be another angle to it - if you have leave balance, then you can reduce the serving time.

When you have a written letter, I suppose management is authorized to make certain decisions that may not align with the terms of the appointment letter, considering the circumstances and the fact that you have a legitimate reason. So, you should be perfectly okay with it. This is my opinion.

I would suggest you forward the copy of the Waiver by your HOD to the Director of the Company. At least if that Director of the company has sense, then he will give his reaction. As I believe those HR departments of the company don't have the guts to legally end to recover from the employee. They are just threatening you. What HR people are ultimately normal people. You see what reactions come, then let me know, and then I guide further.

Rajesh
(rbalsara79 AT gmail DOT com)

The leave encashment has been adjusted with my loan. Is my boss's request and recommendation not enough for the HR department? I had resigned from this job because of financial reasons. The company was not increasing salaries, and I had taken a loan from the company due to a health problem with a family member. Both my head of department and HR were aware of this. Can my financial reason not be considered a special reason for waiving off my notice period? Is it not my human right to advance in my career? Do I have to serve for 78 days without any work just to fulfill the company policy? In the last three days of my notice period, I did not have any work to do.

I had already forwarded both emails to the management, but HR is still sending me emails regarding the payment of the notice period.

Hello,

Your predicament is understandable, but one cannot wish away facts!

In the instant case, you have not stated or quoted relevant clauses from your appointment or confirmation letter. I need to know this vital information. Subject to the above, I ask you to check if there exists a clause to this effect that you have accepted in your appointment letter. If yes, what exactly is it?

If "waiver" is possible, then it ought to have been obtained "formally." However, if such a clause does not exist by any chance, my response would be different.

If you are bound by such a clause and have not obtained a waiver formally, I am afraid you are stuck! You may only keep on representing (requesting, in fact!) and not demanding a post-facto waiver or compromise (which the company can do).

In the alternative, the company is entitled to proceed against you in a court of law to recover this money. In all probability, this may not happen, as it would be rather costly to the employer by way of advocate's fees and related expenses, and therefore the company may keep a sword hanging over your head, hoping someday you may succumb and pay up! But you cannot be certain that this will happen. The employer could even write to your new employer about your jumping the notice period, and if that happens, it is possible the two employers will make this issue a common cause. If they do, that is bad news and an undesirable issue for your career in the future!

Either let us look at absolute facts and decide how to act or take our chance, hoping that the employer may indeed find a legal case to recover this money to an uneconomic exercise and will also not write to the new employer!

It is difficult to take a position and advise anyone without all necessary facts in hand.

Trust you understand what is being conveyed in this response.

Regards,

Samvedan

June 25, 2010

Here I would further suggest, if you have any friend from the legal field who has experience in such matters, then take his/her advice. And until that time, do not pay any money to the company. As and when the HR Department sends you an email, forward it to management. Wait for six months because the HR Department cannot go directly to court; they have enough grounds to pursue the case. That's the reason they are sending you emails repeatedly. At least there won't be any case unless they communicate with you for six months.

Hi,

You don't need to fear the threat posed by HR. Secondly, it seems like your manager is playing a dual game. In 99% of organizations, decisions are made based on the manager's terms without a second reference for verification. If that were not the case, your manager should have sought confirmation before commenting on the waiver.

Please leave all of this behind and peacefully pursue a career with a better firm. In the event of any phone calls or emails from HR, simply inform them that you do not intend to pay anything. If they threaten any action, let them know that you are willing to approach the labor court regarding their apathetic behavior.

Regards,
Unknown

Hi,

Do one thing: attach those emails and send them back to the HR department, stating that if they try to threaten you again, you will file a case against them.

As per your report to your boss, he has granted you a waiver of the notice period and he was absolutely fine with it. Additionally, the HR department did not speak to you about this.

Threaten them back that the HR department did not bring this to your notice during the Exit Interview.

Have you given 90 days' notice in your resignation letter? If you have given the notice and the company is relieving you before that, you do not need to pay any amount in lieu of the notice period.

Hi Renykphilip,

If he has given a 90-day notice, then surely he will not be liable to pay for the 78 days' notice period. But what about the management? Will the management pay for the 78 days' notice period if they relieved him in 12 days?

Thanks,
Arun Gupta

I have given 12 days' notice with the approval of my head of department. I also handed over all my work within 8 days and then sat for 3 days with no assignments in the company. During that time, there was nothing raised against me regarding the notice period, and my head of department even sent an email stating that I was experiencing a financial crisis and should be granted a notice waiver as a special case.

Before leaving the company, I did not receive any full and final settlement or a rejection letter for my notice period. The rejection of the notice period was sent to me after I had already left the job.

The HR personnel spoke very disrespectfully to me before my departure and requested a meeting, but based on his tone and manner, I chose not to meet with him. His words were not only rude but also demeaning to my dignity and self-respect, leading me to tears in front of everyone in the office.

I couldn't comprehend why he treated me in such a manner, but the nature of his comments seemed very personal, as if they could have only been shared by my direct supervisor with him. In the end, my supervisor seemed to play a double game with me.

I verbally informed the management representative that I would not be able to fulfill my notice period due to financial constraints. Additionally, I refused to meet with the HR person due to his unprofessional behavior.

When I contacted him subsequently, his response was dismissive, suggesting not to pay, stating, "What can they do, nothing." However, upon calling him again, he cited it as a company policy.

Dear Ms. Kapoor,

You went in only one direction without anticipating the results. In this present world, there is no chance of accepting an oral communication system. In connection to your case, I strongly suggest you to pay the salary (78 days) because this is a small world, and your present company (if you have joined) may feel the effects of this. Going in 12 days is a very big mistake on your part. At a minimum, you have to work for one month if your notice period is more than two months. So, do not make it complicated. Once again, meet with the head of the department or the head of the organization (MD or other top management) and explain the genuine reasons for leaving the organization.

If I am wrong, leave it.

Dear Naveen,

I agree, but when I resigned, I have told my boss that I want to leave on this particular day (which was the 12th day of my notice period). If you agree only, then I will write it into the resignation. He said he is okay. The same day I resigned in writing, he gave his no objection approval by writing that he has no objection if I leave on that day and sent it to HR. Not only that, he has also written to HR to waive off my notice period. I have everything in writing. They have not stopped me from working there; they are just telling me to pay the money. I was ready to work for 30 days also, but they told me this when I joined the new organization.

My new employer also knows about this as I have not received the relieving letter from the previous employer. I was reporting to the head of the department, and he has given me no objection. That was sufficient for my present employer.

Dear Ms. Kapoor,

You went in only one direction without anticipating the results. In this present world, there is no chance of accepting oral communication. In connection to your case, I strongly suggest you pay the salary (78 days) because this is a small world and your present company (if you have joined) may feel this. Leaving in 12 days is a significant mistake on your part. At a minimum, you have to work for one month if your notice period is more than two months. So, do not make it complicated. Once again, meet with the head of the department or the head of the organization (MD or other top management) and explain the genuine reasons for leaving the organization. If I am wrong, leave it.

Yes, there are similar instances with me as well. Despite working for 13 years in various departments at a senior position for a glazed tile manufacturing company and making repeated requests to waive off my notice period dues, the management was reluctant, and a huge sum of money was deducted during the final settlement. This situation has become quite frustrating these days. I don't know which forum can address these kinds of problems.

In fact, working for a long time does not entitle you to a waiver in the notice period. If you look at this case, it is purely a special case. However, I agree that companies are increasingly becoming worse in terms of relieving employees and all related matters.

I agree with Rajesh that most companies would not go legal on this issue, especially as courts usually rule in favor of the employee. However, you need to be certain of one thing: Was there any written communication to you before your last working day that the waiver recommendation of your manager has not been accepted, and that you would have to serve the complete notice period? In my opinion, the reporting manager can only recommend a waiver; the final decision is with HR/management.

According to the service rule of an organization, you have to give notice before 90 days. But as you are saying you have the conviction, there is no problem in a legal case. Don't worry. Inform it to your director.

Dear Nitasha,

After reading all your posts, I wonder if I may infer that you are being treated in a very unfair manner.

You resigned and stated specifically that you would be able to give only 12 days' notice and requested that you be relieved after completing the handing over exercise, which you did. (I am supposing you did so.)

Your HOD also recommended that the balance Notice Period be waived in your case.

Now, HR should have sent you a Resignation Acceptance Letter clearly stating that your request for the waiver of the balance Notice Period was not acceptable to the management and that you are obliged to serve out the complete 90 days' Notice Period or pay the company salary in lieu of the said Notice Period.

It is absolutely unjust and unfair on the part of your HR to spring a surprise on you at the time of settling your dues in Full & Final. (I am once again supposing that it happened so.)

Under the circumstances, you could request your management to:

1. Waive the balance Notice Period as a special case. If not...
2. Allow you to serve out the balance Notice Period and settle the issue once and for all.
3. Request that you be allowed to refund to the Company the payable amount in easy EMIs.

I have tried to construct your case based on inferences I have drawn from our posts and some suppositions.

You have stated that you wanted to leave early on account of financial reasons...well if it were to be so...why not carry on working...I am not clear on this. Like someone said, we cannot really comment accurately in the absence of complete facts. It seems most likely that you were in a hurry to leave only to take up a better-paying job.

Best Wishes,

Vasant Nair
Director
Karma-HR

Hey, why don't you ask your immediate reporting manager to come into this picture? Is he not supporting you? Also, do you have any proof that the notice was waived off by the HR team as well?

Dear Nitasha,

Notice Pay waiver is solely at the discretion of HR. Other departments may only REQUEST for a waiver. If you are in the probation period, you are not required to pay the notice pay; the notice period is only applicable to confirmed employees. The probation period should be clearly stated in the Appointment Order letter. Furthermore, the Notice Period is clearly outlined in the Appointment letter. Therefore, we must serve until the specified Notice period when resigning voluntarily.

If working until the notice period is not feasible, the notice period can be adjusted against our leave balance, or we can pay the notice pay. The notice pay can be waived if the resignation is not voluntary or if termination is initiated by the company. Some companies even provide notice pay at the time of termination.

In conclusion, in my opinion, as per HR policy, confirmed employees are required to pay the notice pay. You may then claim the same amount in the new company through a request.

- C. Kums (HR)

It will be a good idea to go through the clause in your employment agreement dealing with "the notice period." The wording may come to your help. Similarly, the wording of your resignation letter may also help you. Did you say anything about your notice period in your letter? Did you refer to your discussion with your boss in that letter? Did you ask for a waiver? What was your boss's endorsement on the resignation letter? Did the relieving order ask you to pay the amount? Or did the management write to you subsequently? In any case, I presume there is no provision in the employment contract for the payment of interest. So there is no hurry to pay until you have explored other possibilities. If there are no dues from the employer, I can't see how they can recover it from you after you have ceased to be an employee. If the relieving order was conditional, they should have said so, and then it would have given you the option of taking back the resignation letter and serving for the remaining period. The "financial reason" has no force, and you should not depend on that reason.

Prof. N. Natarajan

An organization has to execute the rules for their better management. Waiver of the clauses in your appointment may take place through collective bargaining. Every manager has to obey the organizational policies; then only the team members will follow suit. Your immediate boss has taken his own decision by ignoring the HR policies and guidelines, and with that, you were given the strong faith that you could be relieved with hassles. In case your joining in the new organization is to take place very immediately by you without observing the rules, you should have discussed with your HR Department informally and pacified them by making them understand the intricacies in the matter. Of course, no management is against the will and pleasure of any employee, and HR is for helping the human beings of their organization and not to harass them. Henceforth, please study and observe the HR policies and add weight to the same. Once waiver is considered in one case, it might cause much embarrassment to HR Dept.

As per the terms of the appointment, the notice period has to be served, or payment made in lieu of notice. Your department head's recommendation to consider your request for a waiver does not mean that the request has been accepted. It is solely the management's decision, which is conveyed through the HR department. In case of failure to comply, the company has the option to go to court if it so desires.

Regards,
Rattionalraj

Hi,

I could see your request and many valuable suggestions. Could you please elaborate on the following before a firm view is given:

1. The exact request made by you.
2. The email wording of your HOD.
3. Communication from HR - regarding your resignation, the recommendation of your HOD, and the company's view when accepting your resignation.
4. Communications from HR before you are relieved and what exactly they communicated while accepting the resignation and relieving you.
5. Communication you received after you were relieved.

It appears there is scope to assist you. Good luck.

Pramod

Hi Nisha,

Two things are apparent here. Firstly, it is clear that you have changed your job to one with higher pay to meet your family commitments. I completely agree with this decision. From the management's perspective, it is evident that you are progressing to a higher level. On the contrary, the management is also facing a loss of resources. In order to fulfill its needs, the management has two options: a) to replace your position with a permanent employee who can join the team, or b) to hire a temporary consultant until a replacement is found.

As a point of interest, my question is: who should bear these costs? If you can answer this question, it is evident that you must pay the notice period.

Secondly, when your boss sends you a waiver, it is not the boss but the HR department that is accountable for the costs. If you have not communicated, it falls on the management to decide whether to waive or unwaive the notice period.

It is commendable on your part to pay the notice period to maintain good relations, get relieved, and have a positive record in the HR books.

For your integrity's sake, you need to pay for the 78 days notice period. I don't think your HOD's agreement with you on your notice period serves to replace the statutory requirement from the company. Remember, the notice period is supposed to be a period when the company readjusts, and possibly finds a replacement for the resigning staff. Although I feel 90 days is unrealistic, it really does take time, energy, and money to find replacements. This is why you are made to pay for that inconvenience.

As someone suggested, you could have used your leave days as a notice period.

Dear Madame,

I am from RSA, and while I'm not familiar with Indian labor laws at all, coming from an era of injustice to human dignity, I cannot ignore that such is evident in your case.

I consider that both your management and HR were aware of your personal circumstances and that as HR, they consider the management's decision acceptable.

Further, to lament on 78 days' salary could be nothing more than to reduce or decrease your final payout...?

Laws aside, taking the known facts and circumstances and your amiable exit from this company, I find it atrocious that they don't consider your plight and would even dare to "kick" a person who's already down!

The fact that this happens to be a trend is more than a crying shame!

My only hope is that some professional members are able to rally support and stand up for you and others facing these circumstances. Let it be a reference in the labor court books as a referral for future case decisions and as constant awareness by employers that people are their assets, and Human Rights apply to ALL - not just persons waving their clout as an Employer or senior representatives thereof!

Bon courage!

Vitesh Ramphal

Many companies these days have an ombudsperson. The role of this ombudsperson is to keep an eye on unjust happenings regarding employees and to intervene to stop them. These ombudspeople are not HR professionals; their actions are based on the company's policies and are meant to assist employees in every possible way.

Your manager can provide a No Objection to HR to release you before the completion of the notice period for a project; however, they do not have the authority to release you from the company. The process of being relieved from the company is solely handled by HR. If your manager releases you from the project before the notice period is over, HR can require you to come to the office and remain idle until the notice period is served. In this situation, if both your Manager and HR have already given you a No Objection, and you have evidence to support this, it becomes crucial.

The timing of the cancellation of your notice period matters; if your resignation was rejected before your last working day, you may face difficulties. The No Objection Certificate (NOC) from HR may not necessarily be a strong document to support your case. An NOC typically signifies acceptance of resignation and should not include any additional conditions.

If you find yourself in financial distress, refrain from taking immediate action. Respond directly to the HR email, stating that you possess NOC emails that are substantial evidence to support your stance. Express your willingness to take legal action for mental distress and personal harassment in the workplace. Once your financial situation stabilizes, consult with a lawyer on how to address the situation appropriately.

Check if your company has an ombudsperson.

Hi All,

I keep having similar problems at my end. It all depends on the contract of employment (as given in the appointment letter) and the wordings you use in the resignation. If you state "you are resigning and to be relieved on completion of the notice period," then it is the prerogative of the company to either keep you or relieve you before the completion of the notice period. On the other hand, if you say you are resigning and want to be relieved immediately, the company can take it to their advantage and relieve you immediately and may waive the demand for payment for the notice period or relieve you without asking for any payment. Either way, this is a debatable issue and according to legal experts, cannot stand scrutiny of the Labour Court (but after a lengthy legal battle). So the best way is to be clear in what you state in your resignation letter. Of course, we also adjust the balance PL to the short notice period if required.

M. Seshadri

I think the HR department is doing their duty, and you cannot hold them responsible for the company policy. The HOD can recommend and forward it to the HR department, and the final decision/waiver has to be made by the management (Director/CEO of the company). In your case, you may send a request to your Director/CEO for a waiver even now, stating the comment of your HOD. Be positive... you will get through. Overall, if they sue legally, you have a strong defense...

If we analyze the situation, we would get to the bottom of the issue.

a) The employee knows that he has to give 90 days' notice, but requesting a waiver of the notice period due to poor financial condition is not convincing.

b) The department head has only recommended a waiver, so he is not the ultimate authority. He should have guided the employee to contact the HR department to know the status of the notice period.

c) If the company is willing to pay the employee whether there is sufficient work or not, why is the employee in a hurry to quit?

d) Before getting a clear picture about the notice period in writing, the employee left the organization in a hurry. It seems the employee did not interact much with HR but relied on what the department head said.

f) Understand that HR has to implement the rules and regulations impartially and they can't deviate on their own. Normally, HR can't make decisions on the notice period; it is the appointing authority who does so. I am not sure in your case who is the ultimate authority.

Having said all the above, my sincere advice is to write to the HR department explaining your situation and requesting them to waive the notice period as a special case. If this does not work, write to the higher-ups in management who can make a decision.

But one important lesson is before making decisions like this, think twice to weigh the pros and cons.

Bhavan

I think I agree completely with Bhavan, as many times we tend to forget all the possible outcomes and make sure that we take a safe decision so that you don't regret it or get into trouble. Also, whenever you talk to someone, make sure that you have it documented. This is a great lesson for everyone. We need to think before committing to something, especially in the corporate world where emotions or someone's feelings are not considered. According to them, policies are policies, and no one can break them unless an exception exists.

Tip to Nitasha: If you have the ability to present your situation as a special case and reach out to the topmost people, you might get a one-time exception in this... Do keep us updated... Thanks!

Subject: Request to Waive Off Notice Period Due to Mother's Illness

Dear [Recipient's Name],

I am writing to request the waiver of the notice period due to my mother's illness. Currently, I am working abroad, and the situation demands my immediate presence with my mother. The standard notice period at our company is three months, but considering the urgency of the matter, I kindly ask for a reduction to either 15 days or one month.

I understand the importance of fulfilling professional obligations; however, in this exceptional circumstance, I hope for your understanding and support in this matter. Your assistance in expediting this process would be greatly appreciated.

I have attached relevant documentation regarding my mother's medical condition for your reference. I assure you of my commitment to complete any pending tasks and ensure a smooth transition before my departure.

Thank you for your attention to this request. I look forward to a positive response at your earliest convenience.

Warm regards
[Your Contact Information]

I need a sample letter requesting to waive off the notice period due to my mother's illness. I am working abroad, so my mother needs my presence. I want to leave my company immediately. The normal notice period of my company is 3 months, so I want to reduce it to 15 days or 1 month. Therefore, I need a sample letter explaining these matters. Thank you.

Please consider the following POA:

1. Send an email or letter to the HR clearly stating that at the time of resigning, you had discussed your exit from the company with your HOD, and he had agreed that you would be relieved earlier and that you would not have to serve out the prescribed Notice Period. You had accordingly resigned from the services of the company, giving 12 days' Notice. Your HOD had also endorsed the same and had informed the HR that he had no objection to the 12 days' notice and that he had also recommended that the balance Notice Period (78 days) may be waived off. You are in no position to pay the company 78 days' salary in lieu of the shortfall in the notice period, and as had been assured by your HOD, the same may be waived off.

It is important to understand that your HR never advised you that the 12 days' notice given by you was not acceptable to them and that you should either serve out the complete notice of three months, failing which you would be required to pay the company salary in lieu of the shortfall in the notice period. HR should have communicated this in the Resignation Acceptance Letter. On the face of it, it seems that this did not happen.

The HR is being unduly unfair, as evident from the fact that they are bringing this matter up at the time of Full & Final Settlement. You should submit a written request along the lines I have suggested above, and I am sure someone among the higher-ups will surely listen to you.

Best Wishes,

Vasant Nair

Dear Krishna,

I am writing to request a waiver of the notice period. I kindly ask for your consideration in this matter. If possible, I will attach medical papers or similar documents to support the genuineness of my request.

I respectfully disagree with Shikha's perspective. It is important for every employee to adhere to the systematic process of joining and leaving an organization, including interviews, selection, joining, and induction. It is crucial that an employee does not abandon their responsibilities abruptly. Instead of focusing solely on what an organization can do in such situations, let us emphasize the ethical conduct of an employee.

As an employee, one should follow the proper procedures for separation and exit the organization with dignity. In my view, an employee who abandons their employment will face challenges in progressing in their career. While short-term happiness may be achieved by such actions, long-term success is unlikely.

Regards,

BHAVAN

Hi Bhavan,

I appreciate your advice regarding being ethical, but no one would like to actually abscond after serving the company for long. It's only when the company starts creating a mess with our career. In the case mentioned, management is actually ignorant and creating trouble with the lady who wanted to quit ethically. No doubt, we should be quite ethical, as you rightly said, but here the ethics are overpowering almost 2 months' salary which actually matters, right?

Anyways, thanks for the guidance.

Regards, Shikha