Stuck in Notice Period Limbo: How to Handle HR's Denial of Early Release?

Hi, I work with an IT company and have a notice period of 90 days. I have resigned from the company on 16-NOV-2016 and requested to be relieved by 16-DEC-2016. I will serve 40 days of notice (31 days as of 16-DEC and 9 days of my leaves available by 16-DEC).

I have communicated my joining date to my new employer as 19-DEC-2016 based on the buy-out option and early release option in our company policy. I informed my manager about my resignation and early release well in advance, and he asked me to wait until he gets approval from our BU HR on the same. Yesterday, he told me that HR is not approving early release due to high attrition in the company and asked me to communicate to my new employer that I cannot join on 19-DEC-2016.

However, my new employer is willing to buy out my 2 months' notice and cannot wait beyond 19-DEC. I understand that it was my mistake to communicate the joining date before approval from my manager, but also, I do not want to lose out on the new opportunity.

My manager first said he has no issue relieving me early and said the same to HR, but I have no written communication on this from him. I don't know if they will approve my case before 16-DEC, and it will be a case of absconding if I do not report to work from 19-DEC.

Please guide me on what I should do in this case.

As per the exit policy of the company, "Early Release/Shortfall of Notice Period: The notice period of 90 days needs to be served by all the employees. All such cases wherein the Supervisor/N+1 approves an early release, it also needs to be approved by the BU head in consultation with HR. Shortfall of the notice period shall be recovered from the employee."

If the contract states that your superior must approve this, there is nothing one can do. The only thing you can do is to convince them. If you still decide to leave, they can file a civil suit for breach of contract.

The terms in the notice condition are clear. You have to serve the entire notice period of 90 days, and any shortfall due to early release must be compensated by the outgoing employee. During the notice period, the approval of leave or adjustment of available leave against the notice period is typically at the employer's discretion. Therefore, make a representation again to buy out the remaining 59 days of the notice period to be formally relieved, marking a copy thereof to the prospective employer.

Regards

Notice Period and Early Release Concerns

In my offer letter, it states: "This contract of employment between you and the company may be terminated by either party by giving 90 days' notice or gross 3 months' salary in lieu thereof. However, release from the services of the company will be subject to satisfactory handover of the responsibilities assigned to you."

I have written to HR below: Considering my tenure (4 years 8 months) with the company, I will:
1. Serve a notice period of 31 days (+ 9 earned leaves).
2. Reimburse the shortfall of 59 days at the rate of my monthly total base compensation (TBC).
3. Complete all existing responsibilities on projects/tasks that need to be executed by me.
4. Ensure a smooth transition/handover of outstanding responsibilities to the team.

This is what she has responded: "We appreciate the situation and empathize with you. However, we are constrained by organization guidance on this issue wherein we have been advised to strictly follow the 90 days' notice period."

What should I reply?

I think the condition of notice of termination you mentioned in your last post is indeed the true extract as stated in your appointment orders. However, the saving clause mentioned at the end seems a bit ambiguous. What does the phrase "satisfactory handover of the responsibilities assigned" actually mean? Does it refer to the properties of the company entrusted to the employee or any uncompleted part of the work in the form of a report until the end of the notice period mentioned?

Are you assured of your joining date by your prospective employer, and is there any proof in writing from them? In the event of the relief orders and experience certificate being delayed by the present employer, will the prospective employer allow you to join as per the offer without insisting on them?

If your answer is 'yes' to both questions, write back politely to the management, with a copy to the new employer, stating that when you are ready to comply with the notice conditions, they cannot reject your resignation or delay your formal relief as requested beforehand on any subjective consideration. Request them to make necessary arrangements for the receipt of the properties of the company in your custody on or before the last working day mentioned in your notice.

Thank you, Umakanthan, for your reply. The answer is YES to both of your questions. I was pushing my current employer for a smooth release because of my 4.8 years of tenure with the company, and I wanted relieving and experience letters for future references. I cannot report to work from 19th Dec. What is the use of giving them advance notice if they are creating a scenario for me to abscond?

My Questions

1) What kind of legal action can the company take against me?

2) Can they declare me an absconder even though I have given my notice in writing (via email)?

3) If I join the other company on 19th Dec, will it be actually treated as a case of having dual employment?

Thanks in advance for your kind reply.