Stuck in a Notice Period Dilemma: How to Handle HR's Rejection 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 12-May-2024 and requested to be relieved by 28-June-2024.

I have communicated my joining date to my new employer as 01-July-2024 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 HR on the same. Yesterday, HR told me that she is not approving early release due to dependencies on me and asked me to communicate to my new employer that I cannot join on 01-July-2024.

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

I also tried to buy out, which they said they have no option of buyout as per company policies, but it is written in my appointment/offer letter that I can buy. I have attached the sentence below. Please guide me on what I should do in this case.

"This appointment is terminable immediately if in case the company wishes to terminate the employee perhaps in case the employee wishes to leave the services of the company during the probation period with serving a notice of two months. The probation period will run for 6 months from the date of joining. Confirmation will be deemed automatic, after completion of the probation. On confirmation of services, the appointment is terminable, by either side, with or without assigning any reason, by giving three months’ notice or in lieu of the full gross salary."

Dear HR Team,

I am writing to bring to your attention the clause in my appointment letter. In the event that my new employer does not object to my joining without a release letter from my current organization, I would like to request permission to leave the organization after purchasing out a 2-month notice period, as stipulated.

Thank you for your attention to this matter.

Sincerely,

S K Bandyopadhyay (WB, Howrah)
CEO-USD HR Solutions
[Phone Number Removed For Privacy-Reasons]
[Email Removed For Privacy Reasons]

Issues with Appointment Order and Termination Clause

There are two issues with the appointment order/clause relating to the termination of the contract in the appointment order. First, you cannot have different conditions for the employer and employee. Therefore, the termination clause during probation is voidable. Second, when you have a condition that the contract of employment can be terminated with or without assigning any reason by giving 90 days' notice or payment of gross salary in lieu of notice, the employee should not be compelled to work for 90 days post-resignation. Therefore, you should have the opportunity to be relieved by paying notice pay. When the new company is ready to bear the notice period cost, you will not be losing anything. But when the final call is to be taken by the present company, you will have to convince them and accept the buyout.

Relief from Notice Period for Non-Managerial Employees

If you do not have reportees under you and you do not hold a managerial position, then it is easier to get relieved even without paying any notice pay because an employee who does not have managerial powers of supervision and approvals is a workman regardless of his salary. It is to be noted that a workman coming under the purview of the Industrial Disputes Act has NO obligation to give notice if he wants to leave the company whereas an employer is under an obligation to give notice if he wants to terminate a worker. No contract would override this law. Therefore, even if the employee has signed a contract that provides for a condition that notice is required to leave the company, that will not be maintainable before the law.

Binding Contract for Managerial Employees

But if the employee has managerial responsibilities of approving leaves of the subordinate employees, appraising their performance, or initiating disciplinary action against the subordinates, then the contract signed will be binding on both of them, and as such, if the notice period is 90 days, that should be followed. In such a scenario, you will have to amicably settle the matter, and how it is settled will depend on you and the key management persons of the company only.

My advice would be to back all your discussions regarding release with the current management/HR with written communication (email) and keep your future employer regularly updated.

If your current employer is having a genuine problem in releasing you and your future employer is willing to wait for some time for you to join, the ideal situation should be not to spoil relationships. But if your current employer is being difficult, as per your terms of appointment, you are not bound to serve the entire notice period. If you are transparent in your dealings, your future employer will also understand your position and may not insist on a release letter from your current employer.

I have read the termination clause posted by you. It is clear that either party, i.e., employer or employee, has the right to terminate the appointment by serving a three-month notice period or in lieu of gross salary. You may communicate with your employer, stating that as per the appointment clause, there is no mandatory requirement to serve the notice period as you would like to pay off the notice period amount; legally, this is correct.

Furthermore, if the employer does not support relieving you, you may send a notice to the employer from an advocate, indicating that the employer's way of relieving the employee may be challenged in a court of law. For any further clarification, please contact me at [Phone Number Removed For Privacy-Reasons].

With due regards to members who have offered their views, I wish to state my opinion.

The importance of adhering to notice periods

The first and foremost thing is that while joining a company, many seem to accept the terms and conditions stipulated in the offer of employment.

In your case, your previous organization has asked for a 90-day notice period or payment of the full gross salary, and you were aware of this when you attended an interview with your prospective employer. However, you chose to ignore the notice period clause of your previous employer and accepted to join your new organization, disregarding the notice period you were required to serve at the previous organization.

The sanctity of the notice period clause

Though legally you can state that you can pay the notice pay and get relieved, a question then arises about the sanctity of the 90-day notice period clause. One day, every employee might just pay the 3-month notice pay and quit the organization on the same day. As an HR professional, how can we deal with this?

The importance of mutual and reciprocal exits

Any exit from an organization should be mutual and reciprocal. Imagine a situation where you put your prospective employer in the same state of affairs by deciding to quit without serving the notice period. You may not receive a proper relieving certificate from organizations you have worked for.

Many companies also conduct background verification checks, and not having a proper relieving letter could pose an issue in the long run. Quitting an organization without a proper experience/relieving letter can be detrimental to your professional career.

Regards,

MVK