Mr. Dingra,
How can the employer relieve the employee without paying him for the full period. The company has a notice period in its terms of employment. Since that is a requirement in the terms of employment, it does not matter who initiated the termination. It is the liability of the employer to pay the full notice period so long as the employee is willing to work for that period. It is not payable only if the employee was unwilling to work in notice period or where there is any prior act on part of the employee that shows he should not be allowed to work (moral turpitude ?)
From India, Mumbai
2383How can the employer relieve the employee without paying him for the full period. The company has a notice period in its terms of employment. Since that is a requirement in the terms of employment, it does not matter who initiated the termination. It is the liability of the employer to pay the full notice period so long as the employee is willing to work for that period. It is not payable only if the employee was unwilling to work in notice period or where there is any prior act on part of the employee that shows he should not be allowed to work (moral turpitude ?)
From India, Mumbai
Just in case, If an employee wanted to relieve from my duties immediately whereas employer does not want him/her to relieve from the organization as they need him/her to serve the notice period for their requirement (Over 2 months). However the employee wanted to relieve immediately since he/she got an offer from other concern which he wanted to pursue with, Kindly advise in this case in what ways an employer can create issues or block him/her from doing it. Though he did not provided them any sufficient information about the new employer and any details of new job. Is there anyway to break these codes and block him/her from entering the new opportunity ? Please explain.
From India, Madras
From India, Madras
have u worked in pune based company and relieved in feb or march?
My colleague has same problem, he relieved by giving 7 day notice with 24 days leave balance totally rounded up 30 days notice period. company accepted the same but didn't given salary for 24 days. now he is challenging the company for the salary. in this case will he get salary?
From India, Selam
My colleague has same problem, he relieved by giving 7 day notice with 24 days leave balance totally rounded up 30 days notice period. company accepted the same but didn't given salary for 24 days. now he is challenging the company for the salary. in this case will he get salary?
From India, Selam
Leave is generally not allowed in notice period. The likely-hood of him wining this case is small. (I assume challanged means filed a case in labour court)
From India, Mumbai
From India, Mumbai
OK, that will be fine if you can get the claim through a court of law. No agreement term of employers provides that the employee will be paid if he is relieved before expiry of notice period on his resignation notice. Employer is liable to pay for the period short of notice period only when he intends to terminate at his own before expiry of termination notice by the employer, not on resignation by the employee.
You would also be lucky enough if such act of the employer is treated by a court of law as an act of moral turpitude, as you interpret, on the part of the employer.
Better, as an experiment, you take up the case of the querist and fight the case in a court of law to prove your point. At least you would be able to set an example for the employees for future to fight against the so called moral turpitude on the part of the employers. Best of luck.
From India, Delhi
You would also be lucky enough if such act of the employer is treated by a court of law as an act of moral turpitude, as you interpret, on the part of the employer.
Better, as an experiment, you take up the case of the querist and fight the case in a court of law to prove your point. At least you would be able to set an example for the employees for future to fight against the so called moral turpitude on the part of the employers. Best of luck.
From India, Delhi
I referred to moral turpitude as a ground for not paying the salary during notice period. Only in such a case will you be justified in refusal to pay salary when you are asking him not to come to office, cause you are justified not wanting him in office due to his previous conduct.
In all other cases, the salary of notice period has to be paid.
you can always leverage on the fact that courts will take 10 years to give a verdict. But it does not change what you are legally required to do. Its a simple doctrine under contract law. There is an obligation, which one party is offering to fulfill. The other party has to pay the consideration required under the contract. Simply because such other party does not want the obligation fulfilled, does not mean he does not have to pay.
There are implicit and explicit terms of contract.
Even if you look at Industrial Employment Standing Orders Act, it says "For terminating employment of a permanent workmen, notice in writing shall be given either by the employer or the workmen - one month’s notice in the case of monthly-rated workmen and two weeks’ notice in the case of other workmen: one month’s or two week’s pay, as the case may be, may be paid in
lieu of notice. "
salary in lieu of notice is definitely required.
There is no provision under any law or rule lets off the employer from paying it (or employee if he does not want to fulfill the terms). Further, principal of natural justice also requires that the person be paid as he is offering to do his part of the contract.
As for my taking the matter to court, that is not my call. Let the concerned person decide. But i hope you are not giving such advice to your clients. After 10-15 years, when the case is settled, your client may end up paying a huge penalty, interest and cost of litigation.
Oh, by the way, the querrist is not the one who will go to court. He will be taken to court. The query has been posted by the HR department of a company asking whether they are required to pay him.
From India, Mumbai
In all other cases, the salary of notice period has to be paid.
you can always leverage on the fact that courts will take 10 years to give a verdict. But it does not change what you are legally required to do. Its a simple doctrine under contract law. There is an obligation, which one party is offering to fulfill. The other party has to pay the consideration required under the contract. Simply because such other party does not want the obligation fulfilled, does not mean he does not have to pay.
There are implicit and explicit terms of contract.
Even if you look at Industrial Employment Standing Orders Act, it says "For terminating employment of a permanent workmen, notice in writing shall be given either by the employer or the workmen - one month’s notice in the case of monthly-rated workmen and two weeks’ notice in the case of other workmen: one month’s or two week’s pay, as the case may be, may be paid in
lieu of notice. "
salary in lieu of notice is definitely required.
There is no provision under any law or rule lets off the employer from paying it (or employee if he does not want to fulfill the terms). Further, principal of natural justice also requires that the person be paid as he is offering to do his part of the contract.
As for my taking the matter to court, that is not my call. Let the concerned person decide. But i hope you are not giving such advice to your clients. After 10-15 years, when the case is settled, your client may end up paying a huge penalty, interest and cost of litigation.
Oh, by the way, the querrist is not the one who will go to court. He will be taken to court. The query has been posted by the HR department of a company asking whether they are required to pay him.
From India, Mumbai
Implicit and explicit terms of contract, that is your own interpretation, but so far as law is concerned that is not bound to accept what an individual interprets. That is why, I have asked you to take the lead and set the example to enable you prove your point. Even if the querist is interested or not, you can volunteer to provide him service to prove your point, may that take 10 years or even more. If you are able to prove that, definitely I shall start following your interpretions after you win on your point and also if you can prove such act of the employer as a moral turpitude.
So far my advice to my clients is concerned, I never advise them to follow unethical practice. But, I do not also try to please some one with false hopes with wrong interpretation of law.
From India, Delhi
So far my advice to my clients is concerned, I never advise them to follow unethical practice. But, I do not also try to please some one with false hopes with wrong interpretation of law.
From India, Delhi
Burney in your case;
1) your employer will not relieve you at all until notice period expires or
2) they will ask you for two months notice period reimbursement and relieve you with service and relieving certificates, if your appointment letter has this clause or
3) if you abruptly leave the job they will not issue you service certificate and relieve letter to you, which your new employer needed to complete appointment process.
4) In case of breaking the contract by you without serving notice period, ex employer can give adverse remark on you during the employment verification process by your current organisation. Now this is up to your new employer to take to count on these remarks!
5) Ex employer can not block you entering in to employment contract with new organisation, provided you have not made any issues / damages, financial or otherwise to them which can go to a court of law.
Hope you will be clear now.
Suresh
From India, Pune
1) your employer will not relieve you at all until notice period expires or
2) they will ask you for two months notice period reimbursement and relieve you with service and relieving certificates, if your appointment letter has this clause or
3) if you abruptly leave the job they will not issue you service certificate and relieve letter to you, which your new employer needed to complete appointment process.
4) In case of breaking the contract by you without serving notice period, ex employer can give adverse remark on you during the employment verification process by your current organisation. Now this is up to your new employer to take to count on these remarks!
5) Ex employer can not block you entering in to employment contract with new organisation, provided you have not made any issues / damages, financial or otherwise to them which can go to a court of law.
Hope you will be clear now.
Suresh
From India, Pune
Dear Savio and Vinod,
If an employ resigns and the company wants relieve of the employee with immediate effect then the company should compensate him/her as per policy in lieu of not let the employee serves notice period. Because, the employee serve a notice period in lieu of monetary benefits and if the company not let him/her serving the notice period, the employee may loose the monetary benefits for the notice period e.g salary and other benefits for the notice period.
Best,
Saif
From Pakistan, Hyderabad
If an employ resigns and the company wants relieve of the employee with immediate effect then the company should compensate him/her as per policy in lieu of not let the employee serves notice period. Because, the employee serve a notice period in lieu of monetary benefits and if the company not let him/her serving the notice period, the employee may loose the monetary benefits for the notice period e.g salary and other benefits for the notice period.
Best,
Saif
From Pakistan, Hyderabad
Dear Savio,
I think you have mentioned this concept in half. The notice has a employee prospective also it is given so that the employee may make arrangements for his future living and he also may pull up his socks to find out other employment. Please understand HR is Human Resource. if there is no humanity and just the narrow company profit prospective it won't remain Human Resource at all.
One question why doesn't every company do this when every employee resigns? take the hand over as soon as possible and relive as soon as Possible to save the money on notice period.
Answer: Because it is not the legal way. The appointment is a bilateral thing. both the parties have their own right. Please do not get confused between this thin line.
By doing this if you will save some money for any sadistic management you may get appreciation for some time but even if one case goes to the court the company may end up spending much in terms of litigation cost and the cost involve in wasting time of the resources in litigation.
So better to pay the notice amount in case you want to relieve someone. I am saying so because i can bet on this from my experience that no Court is going to buy this Narrow Notice Concept.
From India, New Delhi
I think you have mentioned this concept in half. The notice has a employee prospective also it is given so that the employee may make arrangements for his future living and he also may pull up his socks to find out other employment. Please understand HR is Human Resource. if there is no humanity and just the narrow company profit prospective it won't remain Human Resource at all.
One question why doesn't every company do this when every employee resigns? take the hand over as soon as possible and relive as soon as Possible to save the money on notice period.
Answer: Because it is not the legal way. The appointment is a bilateral thing. both the parties have their own right. Please do not get confused between this thin line.
By doing this if you will save some money for any sadistic management you may get appreciation for some time but even if one case goes to the court the company may end up spending much in terms of litigation cost and the cost involve in wasting time of the resources in litigation.
So better to pay the notice amount in case you want to relieve someone. I am saying so because i can bet on this from my experience that no Court is going to buy this Narrow Notice Concept.
From India, New Delhi
Community Support and Knowledge-base on business, career and organisational prospects and issues - Register and Log In to CiteHR and post your query, download formats and be part of a fostered community of professionals.
Employee Appraisal Form new.doc