Is it legal for an employer to use terms that notice period is unavoidable cann not be waived off by forgoing salary
From India, Delhi
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From India, Delhi
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If the clause is one sided only then will not stand in Court ( Court may deem it void ) but if it is both sided then it is valid & Legal in court.....
From India, Pune
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470From India, Pune
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In fact, I have not understood your query, but based on guesswork, my answer is as follows: If there is a mention in the appointment letter only of either side notice and it is silent on salary in lieu of notice and waiving off notice, the employer will be right in insisting the employee complete the notice period. It will be justified on the part of the employer not to waive off the notice period by paying salary in lieu of notice or otherwise.
From India, Mumbai
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From India, Mumbai
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Hello Poojaachaudhary, your posting is confusing. While Prashant & Keshav Korgaonkar have given apt suggestions based on their understanding of your posting, your posting actually gives a different meaning. You used the words '...to use terms that notice period is unavoidable cannot be waived off...'. This gives a meaning that these words are a part of the Appointment Letter. Is this really so? Or is this your conclusion/understanding of whatever was actually mentioned in the Appointment Letter?
However, whatever the wording mentioned, Prashant & Keshav Korgaonkar's suggestions would still be valid. The reason for highlighting the point I mentioned above is to give you feedback to desist from mixing up the facts from your conclusions.
All the best.
Regards,
TS
From India, Hyderabad
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However, whatever the wording mentioned, Prashant & Keshav Korgaonkar's suggestions would still be valid. The reason for highlighting the point I mentioned above is to give you feedback to desist from mixing up the facts from your conclusions.
All the best.
Regards,
TS
From India, Hyderabad
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As our members have rightly said, if the clause of notice or notice pay by either side is not clearly mentioned by the employer in the Appointment Letter or in the Service Rules of the organization, it is at the discretion of the employer to decide. Hope this may give some clarity.
Regards,
Eswararao Ivaturi
From United States, Cupertino
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Regards,
Eswararao Ivaturi
From United States, Cupertino
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I need your help in understanding the principle of resignation. If I am not wrong, as per any establishment policy, it is either a 1-month notice or 3 months on either side, or 1-month pay or 3 months' pay in lieu of not serving the terms of 1 month or 3 months.
My query is, does the employer insist staff work for 1 month or 3 months as per policy without accepting the salary in lieu of not serving the terms?
Any citation of a court in the above matter is welcome. Kindly revert with your valuable advice as it pertains to my own son's case.
In my son's case, the management is not accepting the resignation letter and giving the acknowledgment receipt. Further, in his appointment letter, it is mentioned that on confirmation, he must give 3 months' notice or pay in lieu of the same.
The management has changed the policy, intimating through an email that from 1st April 13, notice pay in lieu of 3 months' notice has been stopped.
Can the management resort to such practice by intimating through email?
Which clause prevails – the appointment letter clause or the email communication?
What remedy is available if the Branch Head is not giving the acknowledgment receipt?
For your information, there is no union functioning in the establishment.
Kindly revert with your valuable advice.
Regards,
From India, Mumbai
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My query is, does the employer insist staff work for 1 month or 3 months as per policy without accepting the salary in lieu of not serving the terms?
Any citation of a court in the above matter is welcome. Kindly revert with your valuable advice as it pertains to my own son's case.
In my son's case, the management is not accepting the resignation letter and giving the acknowledgment receipt. Further, in his appointment letter, it is mentioned that on confirmation, he must give 3 months' notice or pay in lieu of the same.
The management has changed the policy, intimating through an email that from 1st April 13, notice pay in lieu of 3 months' notice has been stopped.
Can the management resort to such practice by intimating through email?
Which clause prevails – the appointment letter clause or the email communication?
What remedy is available if the Branch Head is not giving the acknowledgment receipt?
For your information, there is no union functioning in the establishment.
Kindly revert with your valuable advice.
Regards,
From India, Mumbai
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Dear Keshavjee,
Further to the thread, more clarification is provided herein below.
Resignation Details
My son joined the establishment on 20th August 2012 and tendered the hard copy of his resignation on 11th July 2013 in writing to the Branch Head. He has, to date, not received an acknowledgment on the copy that the resignation was received. Unfortunately, my son has not mentioned the last working day but has requested to be relieved "As soon as possible," as he has received a job offer letter from a multinational company based in the UAE, asking him to join by 1st August 2013.
Notice Period Clause
The present company's appointment letter states that on confirmation, a 3-month notice on either side or, in lieu of the same, 3 months' pay is required. While referring to the resignation letter, the Branch Head has verbally informed my son that the practice of a 3-month notice in lieu of notice has been stopped from 1st April 2013, and he must work for the full 3 months with no alternative.
Policy Announcements
As for policy announcements, they are generally made prior to the submission of my son's resignation letter via email from the VP-HR Department and not now. My son does not wish to serve the complete notice period but is willing to settle the dues in lieu of the notice period.
Questions and Concerns
Can management resort to such a practice by informing through email about the stoppage of the practice in lieu of the notice period? Which clause prevails - the appointment letter clause or the email generally announced? What remedy is available if the Branch Head does not provide an acknowledgment receipt? Kindly revert as time is running out, as 1st August 2013 is approaching very soon.
If the Branch Head declines to provide the acknowledgment copy and my son does not fulfill the terms of the notice period as per the appointment letter on either side, what action can be contemplated by the employer against my son? As stated in the previous email, no union is functioning in the present establishment. The UAE company does not require a relieving letter from the present employer.
Regards,
Azim Charania
From India, Mumbai
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Further to the thread, more clarification is provided herein below.
Resignation Details
My son joined the establishment on 20th August 2012 and tendered the hard copy of his resignation on 11th July 2013 in writing to the Branch Head. He has, to date, not received an acknowledgment on the copy that the resignation was received. Unfortunately, my son has not mentioned the last working day but has requested to be relieved "As soon as possible," as he has received a job offer letter from a multinational company based in the UAE, asking him to join by 1st August 2013.
Notice Period Clause
The present company's appointment letter states that on confirmation, a 3-month notice on either side or, in lieu of the same, 3 months' pay is required. While referring to the resignation letter, the Branch Head has verbally informed my son that the practice of a 3-month notice in lieu of notice has been stopped from 1st April 2013, and he must work for the full 3 months with no alternative.
Policy Announcements
As for policy announcements, they are generally made prior to the submission of my son's resignation letter via email from the VP-HR Department and not now. My son does not wish to serve the complete notice period but is willing to settle the dues in lieu of the notice period.
Questions and Concerns
Can management resort to such a practice by informing through email about the stoppage of the practice in lieu of the notice period? Which clause prevails - the appointment letter clause or the email generally announced? What remedy is available if the Branch Head does not provide an acknowledgment receipt? Kindly revert as time is running out, as 1st August 2013 is approaching very soon.
If the Branch Head declines to provide the acknowledgment copy and my son does not fulfill the terms of the notice period as per the appointment letter on either side, what action can be contemplated by the employer against my son? As stated in the previous email, no union is functioning in the present establishment. The UAE company does not require a relieving letter from the present employer.
Regards,
Azim Charania
From India, Mumbai
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"UAE Company does not need any relieving letter of the present employer." If the UAE company does not want this document, please ignore the process of obtaining a relieving certificate and proceed with the joining process. However, an organization can change its internal policies at any time.
In your son's case, if the amended rule has come into effect after he submitted his resignation (though you vaguely mentioned it), then the old clause stated in his appointment letter will be considered. Arguably, even if the email's posting date appears after he tendered his resignation, it could also work in his favor. Many things can happen within an organization, and unless actions are taken in time, their validity may not come into force.
Advise him to keep a copy of his resignation letter and the email circulation. Additionally, suggest that he updates his new employer regarding this relieving-related issue. The mentioned documents will assist him in substantiating his current situation if the new employer requests them.
Furthermore, if he can persuade his current employer, build their confidence, and maintain a good relationship, he can request them to consider allowing him to pay back the notice period for a harmonious relationship. Some companies may permit this based on the relationship.
Wishing him all the best for his future endeavors.
Regards,
Suresh
From India, Pune
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In your son's case, if the amended rule has come into effect after he submitted his resignation (though you vaguely mentioned it), then the old clause stated in his appointment letter will be considered. Arguably, even if the email's posting date appears after he tendered his resignation, it could also work in his favor. Many things can happen within an organization, and unless actions are taken in time, their validity may not come into force.
Advise him to keep a copy of his resignation letter and the email circulation. Additionally, suggest that he updates his new employer regarding this relieving-related issue. The mentioned documents will assist him in substantiating his current situation if the new employer requests them.
Furthermore, if he can persuade his current employer, build their confidence, and maintain a good relationship, he can request them to consider allowing him to pay back the notice period for a harmonious relationship. Some companies may permit this based on the relationship.
Wishing him all the best for his future endeavors.
Regards,
Suresh
From India, Pune
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Mr. Azim,
Companies can change their policies over time. The new changes ought to be communicated to all the staff. Since it is not feasible to print minor changes and distribute them to a large number of employees, increasingly, employers are emailing those minor changes. Ideally, the company also asks employees to sign a declaration stating they've read and agree to the new changes. Even if this practice is not adopted, it is assumed that employees read the email, and since no query was initiated, it is presumed that you have accepted and have no objection to it or seek no clarification on it.
Since emails have been accepted as a legal communication medium and can be used as proof of communication, I would say that there is nothing wrong with the company clarifying the changes over email. The most important aspect is communicating changes—either by appointing a new letter, posting on the notice board, or via email is not the concern.
Secondly, you mention that the amendments were made in April and your son resigned in July. So the new and amended clause will apply, which means that the company can't be expected to accept 3 months' salary in lieu of the notice period to be served.
Ideally, when someone is writing a resignation, they should mention the intended last working day. This will provide an opportunity for discussion during the exit interviews, allowing you to present your claims and problems and hence seek early relief. However, since no date was provided, it must have been presumed that you would resign under normal conditions by serving a 3-month notice period.
With such short notice, I doubt a company would be ready to cooperate, but one can only try to negotiate with the current and the prospective company to respectively relieve as early as possible and try to delay the joining for genuine cases.
All the best.
From India, Mumbai
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Companies can change their policies over time. The new changes ought to be communicated to all the staff. Since it is not feasible to print minor changes and distribute them to a large number of employees, increasingly, employers are emailing those minor changes. Ideally, the company also asks employees to sign a declaration stating they've read and agree to the new changes. Even if this practice is not adopted, it is assumed that employees read the email, and since no query was initiated, it is presumed that you have accepted and have no objection to it or seek no clarification on it.
Since emails have been accepted as a legal communication medium and can be used as proof of communication, I would say that there is nothing wrong with the company clarifying the changes over email. The most important aspect is communicating changes—either by appointing a new letter, posting on the notice board, or via email is not the concern.
Secondly, you mention that the amendments were made in April and your son resigned in July. So the new and amended clause will apply, which means that the company can't be expected to accept 3 months' salary in lieu of the notice period to be served.
Ideally, when someone is writing a resignation, they should mention the intended last working day. This will provide an opportunity for discussion during the exit interviews, allowing you to present your claims and problems and hence seek early relief. However, since no date was provided, it must have been presumed that you would resign under normal conditions by serving a 3-month notice period.
With such short notice, I doubt a company would be ready to cooperate, but one can only try to negotiate with the current and the prospective company to respectively relieve as early as possible and try to delay the joining for genuine cases.
All the best.
From India, Mumbai
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Dear Azim ji,
Generally, I avoid giving opinions on specific issues without fully understanding them from all angles and without reading and interpreting the relevant documents. I have many questions and doubts to clear regarding your query, but this platform may not be suitable for addressing them. In any legal issue, the steps taken by each party play a vital role. Proper interpretation of the law and its application to the case are crucial.
Section 9A and the Fourth Schedule of the ID Act
In your case, I would like to draw your attention to Section 9A and item no. 9 of the Fourth Schedule to the ID Act. According to this, the introduction of new rules of discipline or alteration of existing rules, except as provided in standing orders, requires a 21-day notice period. It is important for you to understand its relevance to your situation. In my opinion, the notice period is a matter of discipline.
Regards.
From India, Mumbai
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Generally, I avoid giving opinions on specific issues without fully understanding them from all angles and without reading and interpreting the relevant documents. I have many questions and doubts to clear regarding your query, but this platform may not be suitable for addressing them. In any legal issue, the steps taken by each party play a vital role. Proper interpretation of the law and its application to the case are crucial.
Section 9A and the Fourth Schedule of the ID Act
In your case, I would like to draw your attention to Section 9A and item no. 9 of the Fourth Schedule to the ID Act. According to this, the introduction of new rules of discipline or alteration of existing rules, except as provided in standing orders, requires a 21-day notice period. It is important for you to understand its relevance to your situation. In my opinion, the notice period is a matter of discipline.
Regards.
From India, Mumbai
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In addition to my earlier comments, I would like to provide some more insights, point-wise, which may help you decide your case.
If it is agreed by both parties that there will be no salary in lieu of short notice by either side, the employer can insist on no salary in lieu of short notice.
In case management is not providing an acknowledgment receipt, one should send the communication by Registered AD Post as soon as possible. Now, the time has come. You should document the fact of submitting the letter but not receiving the acknowledgment receipt by written communication to higher management.
Any clause in the appointment letter or any agreement should be agreed upon by both parties in writing and signing. So, any change should also be in writing and signed by both parties. Mere email communication of change is not enough.
Comments are already given above.
Regards
From India, Mumbai
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If it is agreed by both parties that there will be no salary in lieu of short notice by either side, the employer can insist on no salary in lieu of short notice.
In case management is not providing an acknowledgment receipt, one should send the communication by Registered AD Post as soon as possible. Now, the time has come. You should document the fact of submitting the letter but not receiving the acknowledgment receipt by written communication to higher management.
Any clause in the appointment letter or any agreement should be agreed upon by both parties in writing and signing. So, any change should also be in writing and signed by both parties. Mere email communication of change is not enough.
Comments are already given above.
Regards
From India, Mumbai
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In every organization, standing orders (in the absence of model standing orders) and/or Service Rules will be present, whether it is unionized or not. The appointment letter contains the clauses from this. Generally, any change in the establishment concerning the employees should be notified for information; otherwise, it is legally invalid.
So, in the case of any resignation by a probationer, the notice clause will not be applicable. For a resignation by a confirmed employee, as our members rightly stated, whether it is 1 month or three months, or notice pay in lieu of notice, a part of the notice and the notice pay by the employee has to be accepted by the employer. In such cases, the employee should clearly specify in the resignation letter to adjust the notice pay from their final dues.
Some companies will clearly communicate about the notice period only by either. In that case, the company has the legal right to.
Thank you.
Regards
From United States, Cupertino
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So, in the case of any resignation by a probationer, the notice clause will not be applicable. For a resignation by a confirmed employee, as our members rightly stated, whether it is 1 month or three months, or notice pay in lieu of notice, a part of the notice and the notice pay by the employee has to be accepted by the employer. In such cases, the employee should clearly specify in the resignation letter to adjust the notice pay from their final dues.
Some companies will clearly communicate about the notice period only by either. In that case, the company has the legal right to.
Thank you.
Regards
From United States, Cupertino
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