Can I Legally Serve a Shorter Notice Period While Still on Probation? Seeking Advice

Dear All,

Hope everyone is safe and vaccinated. I am working for a well-known MNC company. I joined on September 1st, 2021. Due to some personal issues and career preferences, I have submitted my resignation on October 28th, 2021. Regarding the notice period, below is the clause mentioned in the offer letter:

"Notice Period: Upon your confirmation, this contract of employment is terminable by you by giving 90 days' notice in writing to the Company. It is clearly understood, agreed, and made abundantly clear that you shall have to necessarily work during the period of notice of 90 days given by you under this clause. However, upon your serving the notice under this clause, the Company may relieve you at any time during the period of notice at its sole discretion. Upon your resignation, this contract of employment may be terminated by the Company by giving you 90 days' notice or payment in lieu thereof. It is understood, agreed, and made abundantly clear herein that you shall have to necessarily work during the notice period given by the Company under this clause unless you are otherwise relieved by the Company by receiving payment in lieu of notice. Your failure to comply with this clause will entail monetary payment of damages to the Company as may be determined by it at its own discretion having regard to the responsibilities shouldered by you while being in the employment of the Company."

On the day I resigned, I am still on the probation period and not a confirmed employee with the organization. However, HR is stating that I need to serve a 3-month notice period. I feel that the information is not provided in the offer letter, and the clause they mentioned is applicable to a confirmed employee.

So, please let me know if it's legal for me to state that I will abide by my offer letter and serve only one month as I am still not a confirmed employee. Also, let me know if absconding is the right course of action if they still do not accept my request for relieving in one month.

Regards.

Dear Colleague,

Your write-up does not clearly mention whether you are a probationer and, if so, what is the period of probation mentioned in your appointment order. If you are on probation, what is the notice period mentioned during the probation period? This is not clear.

If you are on probation, kindly follow the Notice Period Clause mentioned in the order, which is to be complied with "during probation."

If you are appointed as a confirmed employee or without any probation clause in the order, then you need to comply with a 90-day notice period.

Advice on Job Changes

1. Kindly refrain from such quick job changes for whatever reasons. Before joining and taking up any employment, think a hundred times. Once joined, at least serve for a minimum period in that organization, which will add value to your CV. Persons from outside your shoes may not appreciate leaving a company within 2 months of joining, which is a point of concern to be noted and avoided in the future.

Contractual Clauses

2. The clause "will entail monetary payment of damages to the company as may be determined by it at its own discretion, having regard to the responsibilities shouldered by you" is one-sided and very much excessive in nature by the organization, which is not a fair contract term. You should not accept such an appointment order clause in your future employment and think twice. Here, this is not a fair clause, and it can be contested, but you need to be prepared for a lengthy legal battle as you have already accepted. However, in the future, be cautious of such clauses.

Overall, our suggestion is that as you have decided to leave in a short span of time, kindly try for a smooth exit from the organization by fully adhering to the terms of appointment with regard to the notice period clause. Meet HR and get clarification on why it is 90 days and under what clause of the appointment, etc. Discuss and resolve, complete the mutually accepted notice period, get F&F, a proper relieving letter, and then leave the organization considering your future career. In the future, before signing an appointment order, have a clear understanding of each line of the order and then seek modifications if not convincing to you. It may be challenging at the beginning, but when you are talented and the company wants you, let them make necessary changes in the terms very fairly.

All the Best and God Bless,

Dr. P. Sivakumar
Doctor Siva Global HR
Tamil Nadu

Thank you for the response, sir! Below are the answers to the questions you asked:

1. Sir, I joined the organization on September 1st, 2021. I am not a confirmed employee yet, and there is a probation clause in the order stating that I have to be a probationer for 3 months upon joining the company, but there is no clause regarding the notice period under probation.

2. Regarding the notice period, the only thing mentioned is 'upon confirmation, I have to serve a 3-month notice if I resign from the organization.'

So, I feel I am in line with the offer letter that I accepted, and I need not serve a 3-month notice period. I will be awaiting your final comments. 

Kindly share the clause of the probation period because in the shared clause, the notice period is mentioned for after confirmation. The notice period for the probation period should be mentioned in the probation clause.

Thank you.

Hi Gautam, Below is the clause of the probation period:

Probation Period:

You will be on probation for 3 months. Your confirmation will be communicated to you in writing. The organization reserves the right to terminate your employment if your performance, behavior, and/or conduct during the probation period is found unsatisfactory.

That's all, no mention of the notice period in the probation period clause.

Since there is no mention of the notice period during probation, you can exit from the company immediately upon submitting your resignation. The two-month service period does not matter, and you can simply be relieved. If the employer does not update your PF records, you can do it yourself by visiting your member portal. There is no need for further communication with the HR of the company because the HR department of the said company appears to lack basic knowledge about personnel practices.

Employee Exit and Notice Requirements

Generally, only the exit of an employee by way of unilateral termination of the contract of employment at the instance of the employer, in the case of discharge or retrenchment, statutorily requires the employer to issue prior notice or to pay the salary in lieu of notice under the ID Act, 1947, and certain establishment-specific labor laws like the State Shops and Establishments Acts.

To my knowledge, no law requires the employee to give notice in case of resignation. Such an obligation is normally created under the contract of employment or service regulations. Similar is the condition of probation. That's why no statutory employment benefit precludes a probationer from his entitlement.

Therefore, giving notice before resignation during probation or after confirmation is only a condition as agreed upon by the parties at the time of entering into the contract of employment. If the contract does not have a notice clause of exit on resignation during probation, the exiting employee is not bound to do it.

Moreover, as per the ratio decidendi of several case laws, a probationer continues to be a probationer until such time he is confirmed by the employer in writing unless the contract of employment/service regulations provide for deemed confirmation.

In view of the above explanation, I would not hesitate to recommend the poster to follow the clear suggestions put forth by our learned member Mr. Madhu.

Notice Period During Probation

As there is no specification of a notice period and while submitting the resignation, you are still on the probation period. Also, the probation period isn't completed, which means the written confirmation of full-time employment hasn't been shared with you. You do not need to serve the notice period in this case because the employment contract is yet to be applicable to you as the probation period is still ongoing, and the probation policy doesn't contain any clause that binds you to serve a notice period.