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How to get notice period enforced from employer
08-Jun-2023 (In Corporate Law)
Hi,I have resigned from my current Indian MNC and the next company which i want to join have asked to join in 2 months,but my manager is not ready to releieve me. Here is the text mentioned in my offer "Notice Period: Notwithstanding anything contained herein,the company,in its sole discretion, may terminate your employment without cause by giving 3 month notice in writing or payment of pro rate 3 month basic salary.In lieu thereof. In the event of your resignation, the company in its sole discretion will have an option to accept the same and relieve you prior to the completion of the stipulated notice periodof 3 months, without any pay in lieu of the notice period". Can someone help if i would be able to fight to get alteast notice period buy out even if manager and HR are not agreed.
The Legal remedy fully depends upon facts and rationale for refusal of early relieving of each employee. If you are not able to negotiate with the company or HR then you can (a) appoint an advocate or mediator to have meeting with the HR to resolve the disputes and understand the rationale for not relieving earlier than the agreed notice period or (b) to strategically to put pressure on Company, you can issue a legal notice asking to relieve early and offer them the buyout of period that you cannot serve notice for. Even ask in such legal notice, in event if the company wants to refuse the offer of buyout then the reason for not ready to relieve early to be mentioned.
You are governed by employment agreement if you are an employee (not workman under industrial disputes act) and breach of terms of employment agreement will only entitle employer to recover damages for breach of the employment agreement.
If you are protected workmen as above, then you may be governed by industrial standing orders and you can raise a dispute mentioning that notice period applicable shall be as per law and hence need to be appropriately relieved and state that legally Company is entitled to notice period (i.e. 30 days or as mentioned in applicable statutes) required under applicable statutes like Shops and Establishment Act or Factory Act and not as per employment agreement because equal remedy was available to employer in event of retrenchment.
You are governed by employment agreement if you are an employee (not workman under industrial disputes act) and breach of terms of employment agreement will only entitle employer to recover damages for breach of the employment agreement.
If you are protected workmen as above, then you may be governed by industrial standing orders and you can raise a dispute mentioning that notice period applicable shall be as per law and hence need to be appropriately relieved and state that legally Company is entitled to notice period (i.e. 30 days or as mentioned in applicable statutes) required under applicable statutes like Shops and Establishment Act or Factory Act and not as per employment agreement because equal remedy was available to employer in event of retrenchment.
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Adv. Rajesh Singh
Mumbai | 25+ Answers
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