Notice Period Clause Not Honoured By Employer? - Please Clarify This Clause

Hi,

I was employed by a company ABC for roughly a year. The circumstances of me leaving the company ABC are a bit unfortunate for me.

I was informally asked by my manager to look outside for a job. He said if I could not find a suitable position soon, then he would have to start formal proceedings. So I was able to find a different job [with company XYZ] within two weeks. Since my appointment order with company ABC stated that there is a notice period of one month on both sides, I informed the company XYZ that I could join them after one month.

I resigned from ABC on March 24th. As per the joining order from XYZ, I was supposed to join XYZ on April 25th. But ABC asked me to leave by March 31st.

I assumed that they invoked the right to have me not attend the office. But in that case, I feel I am entitled to the pay. I contacted the HR SPOC several times for clarification on this point. But so far, she has not responded to my emails and is completely ignoring my emails.

I have given the relevant notice period verbiage from the offer letter. Please advise if points 9.3 and 9.4 can be applied in my case.

9.1 Subject to sub-paragraph 9.1 below or during the probationary period (if applicable), the minimum period of notice that the firm will give you to terminate your employment is 30 days. The minimum period of written notice that you are required to give the firm is 30 days.

9.2 Notwithstanding sub-paragraph 9.1, the firm reserves the right to terminate your contract without any notice if it has reasonable grounds to believe that you are guilty of gross misconduct (which shall, without limitation, include any breach of any of the provisions of this contract of employment), in which case no notice or pay in lieu of notice will be due.

9.3 The firm reserves the right to require you to remain at home and/or not to undertake all or any of your duties of employment and/or not to contact certain clients or colleagues during part or all of any period of notice of termination of your employment (whether given by you or the firm), provided that your cost to the company is paid and contractual benefits are provided in the usual way. For the avoidance of doubt, you will continue to be bound by your duties and obligations to the firm until the end of the notice period.

9.4 Instead of a period of notice pursuant to sub-paragraph 9.1 above or any other period of notice applicable to your employment at the relevant time, the firm may, at its discretion, elect to pay you a sum equivalent to the cost to the company (but not benefits) which you would have received during your notice period.

Please let me know if you need more information from me.

Thanks & Regards

B

Hello brijwij,

Your situation is understandable, given the attitude of Company ABC. You have a valid and genuine right to ask for the Notice Period payment.

However, the Agreement seems to have been pretty cleverly drafted. The salary DURING Notice Period is ONLY IMPLIED (by virtue of the other 9.x clauses) and NOT EXPRESSLY MENTIONED in Clause 9.1. If you read it carefully, it only speaks of the notice period, not of 'how much' salary, etc.

Please confirm if you have ALL your Papers that you need to have IN HAND to join Company XYZ (Relieving Letter, Experience Letter, etc). If you haven't, then just wait for them to be IN YOUR HAND. Also, please confirm if you have joined Company XYZ or not.

If your answer to BOTH queries above is YES, then I suggest contacting a lawyer with all the relevant papers and getting a letter drafted to be sent to the Company ABC suitably. I suggest you be MENTALLY PREPARED for a long haul in this matter, especially if it does go legal.

Another thought comes to my mind, but I am NOT SURE if it's practical/realistic. NASSCOM has a Directory/Registry for Employers to mention 'absconding/problematic' employees (basically those who jumped/skipped the Notice Period). I am not sure if NASSCOM has a similar Register/Directory for Companies like yours. I suggest checking it out with your friends in other IT Companies. Please note that there's a possibility that it MAY NOT be as direct as it is for blacklisting employees. If that facility does exist, I think you have a much quicker solution—and PLEASE SHARE IT ON CiteHR.

All the Best.

Regards,
TS

TS,

Thanks for your response. I am sure the company ABC has an excellent team of legal eagles who draft these offer letters in such a way that it seems fair to a casual reader. However, a subject matter expert (like you) can see through it.

I have received all the necessary papers to join XYZ, and I have already done so. I am planning to give some more time to the HR department, and then escalate the issue to the higher-ups, such as the head of my division and maybe the global head of my division. If I still feel like I am being stonewalled, then I might consider taking the legal route.

Given that ABC is a very large company, I believe that NASSCOM would likely prefer to side with ABC. Therefore, pursuing the NASSCOM route might not be viable for me.

Regards,

B

To whoever modified the title asking for clarification of the clause, the clauses have been listed in the original post. For your reference, I have pasted the 4 clauses below.

9.1 Subject to sub-paragraph 9.1 below or during the probationary period (if applicable), the minimum period of notice that the firm will give you to terminate your employment is 30 days. The minimum period of written notice that you are required to give the firm is 30 days.

9.2 Notwithstanding sub-paragraph 9.1, the firm reserves the right to terminate your contract without any notice if it has reasonable grounds to believe that you are guilty of gross misconduct (which shall, without limitation, include any breach of any of the provisions of this contract of employment), in which case no notice or pay in lieu of notice will be due.

9.3 The firm reserves the right to require you to remain at home and/or not to undertake all or any of your duties of employment and/or not to contact certain clients or colleagues during part or all of any period of notice of termination of your employment (whether given by you or the firm), provided that your cost to the company is paid and contractual benefits are provided in the usual way. For the avoidance of doubt, you will continue to be bound by your duties and obligations to the firm until the end of the notice period.

9.4 Instead of a period of notice pursuant to sub-paragraph 9.1 above or any other period of notice applicable to your employment at the relevant time, the firm may, at its discretion, elect to pay you a sum equivalent to the cost to the company (but not benefits) which you would have received during your notice period.

Thanks,

B

Hello brijwij,

Glad to know that you have joined XYZ. In a way, you are lucky. There are many who get stuck midway. Your plan of action to contact the higher-ups is good. Follow it.

Regarding the NASSCOM route, my reasons for taking that route are different. Most people/companies hesitate to take action, especially in cases of gross wrongdoings, if they think it could become public knowledge. They fear public reaction more than the law. In this age of the internet, this can easily be put into practice. The reason I mentioned this route was for this purpose.

By the way, I am not a 'subject matter expert'. I am involved in this through 'practice', not experience, let alone any relevant qualifications.

All the best.

Regards,
TS