Hello everyone, I work in a startup. I got an offer from a different company and offered to resign at my present company. My present company made a counter offer but things did not work out during negotiation and I submitted my resignation. I cannot serve my notice period in its entirety at my present company if I want to take up the other offer. I have offered to pay in lieu of notice multiple times and asked to share payment details. But the company is not accepting this saying this is not in the company policy and I can be relieved only after serving 60 days notice period. I have tried to talk to my founder several times to resolve this amicably but the only response I get is that I have no other option other than serving 60 days notice period. The contract clearly states that this is possible. Here is an excerpt from my contract from the 'Termination of Employment' section - "Your employment with XYZ may be terminated by either you or XYZ by providing sixty (60) days prior written notice. Your notice period will be 15 days if the company decides to terminate your employment during the probationary period. The provision of such notice by you is mandatory; in all instances of termination of employment by you. If you fail to provide such notice prior to terminating your employment, you will be required to pay XYZ in lieu of the required notice based on your gross pay (basic plus allowances). XYZ reserves the right to terminate employment prior to the end of the notice period and pay in lieu of such notice gross salary or extend the period of employment at its sole discretion. XYZ reserves the right to extend the duration of the notice period and pay in for this extended notice period. XYZ reserves the right to terminate your employment summarily without notice or payment in lieu of notice if it has reasonable grounds to believe that you are guilty of misconduct or negligence as per XYZ policy or guidelines or have committed any breach of this agreement." I would like to understand a couple of things - - How to deal with such a situation? - Am I misinterpreting the contract? If not, how can I deal with this situation without having to take a legal route? - What will be the timeline if I do choose to take this up legally? - What could be the worst case scenario if I simply submit all my office resources back and not go to work after a certain date? - Can the company take any legal action against me? - Can the company withhold my relieving letter if I do so? - Is there any way to get my relieving letter? What are the instances in which I don't get my RL? - What could be the consequences if I simply start working at the other company? Thanks
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You have to serve 60 days notice period
2) it is mandatory . If you fail to serve company can recover salary in lieu of notice period
3) litigation is long drawn and expensive proposition
4) ask your new employer to extend the joining date as your employer is not relieving you
5) company may withhold your relieving letter if you file to serve notice period
The terms and conditions of employment offer letter is very clear that you can pay compensation in lieu of the notice period not served, hence you can communicate to your employer stating that you are resigning from the employment and your last working date will be...... that you are willing to pay compensation in lieu of notice period not served invoking the offer letter conditions.
If the company is not responding or refusing to address your concern or request then you can resort to legal action as per law and look for remedy
These are terms ' in terrorem' and hence can be held void if found to be unconscionable .
Anyway if you do not mandatorily require any NOC or any other kind of letter for joining the new company then you may not serve notice period and join in the new company.
The previous company in such incident hardly pursue the dispute further in litigation.
You need to just pay the basic salary for notice period to waive the same. You need to send the legal notice for relieving letter then approach court or competent authorities for seeking same
- As per Specific Relief Act, if any employee quits before the notice period, the Employer can only recover the Notice pay, and the Company cannot force to serve the entire notice period.
- Further, the resignation decision is the employee’s decision, and the employer cannot sue for breach of contract, if the employee leaves without serving contractual notice.
- Except, recovery of the said amount, company cannot harm you for the same
- Further, no employer can refused to return the original certificates or to issue relieving letter .If they are doing so, their act is illegal, unjustified and against the fundamental rights of the employee.
- Further, the employment bond with the negative covenant is valid and legally enforceable, if the parties agree with their free consent i.e. without force, coercion, undue influence, misrepresentation and mistake, but it is not enforceable, if it is either one sided, unconscionable or unreasonable.
- Hence, you are free to joint other company after paying the notice period which is mentioned in the offer letter.
- Send a notice to the said company to issue RL after receiving the payment of notice period.
Dear Client,
Try to reach a mutually agreeable agreement with your present employment. If it's not clearly mentioned in the contract, ask them to explain the precise grounds for their refusal to take payment in lieu of notice. It seems that the extract you have provided does not indicate that you are misreading the contract. It lays out exactly how payments can be made in lieu of notice. Keep reaching out to your employer, stressing that you are willing to abide by the terms stated in the contract. Legal timetables might change depending on the court's availability, the jurisdiction, and the case's complexity. In the worst-case situation, your employer may file a lawsuit for breach of contract if you turn in office supplies and fail to show up for work after a set date. They might take legal action to recover damages you might have caused them by not giving them enough warning. Additionally, if you fail to adhere to your notice period duties, the corporation may withhold your relieving letter in certain circumstances. If you begin working for another company without giving notice, you may face legal repercussions, including accusations of breach of contract from your existing employer. It can also affect your future employment opportunities and professional reputation.
