Forcing to serve notice period
5 months ago
Currently employed with a 90-day notice period, I received a job offer starting on 27/11/2023. I submitted my resignation on 20/11/2023, and though my contract allows buying out with the remaining basic pay, HR insists on the full 90-day notice. Can they enforce this despite my willingness to buy out?
A.Dear client
Employment contracts often specify a notice period that employees must provide when resigning. This is intended to give the employer adequate time to find a replacement or make necessary adjustments. Some employment contracts may include a buyout clause, allowing employees to pay a specified amount in lieu of serving the full notice period. The terms of such buyout clauses are typically outlined in the contract. Review the terms of your employment contract, especially any clauses related to notice periods and buyouts. If there is a buyout clause, it should specify the conditions under which you can opt for a buyout.
Employment contracts often specify a notice period that employees must provide when resigning. This is intended to give the employer adequate time to find a replacement or make necessary adjustments. Some employment contracts may include a buyout clause, allowing employees to pay a specified amount in lieu of serving the full notice period. The terms of such buyout clauses are typically outlined in the contract. Review the terms of your employment contract, especially any clauses related to notice periods and buyouts. If there is a buyout clause, it should specify the conditions under which you can opt for a buyout.
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A.Dear Client,
When there is a condition in your contract of employment allowing by out of the notice period, the company cannot force you to complete the notice period and even cannot withhold your relieving letter in violation of the terms of a contract of employment that adversely affects the career of an employee and that is amounted to unfair labour practice. As per the mandate of Section 27 of the Indian Contract Act,1872, any terms and conditions of an agreement that directly or indirectly compels the employee to serve the employer or puts a restriction on them joining the competitor or other employer is not valid. The employee has the right to resign from the employment even if he has agreed to the employment/service bond to serve the employer for a specific period of time. In the case where the employer is able to prove that the employee is joining the competitor to disclose the trade secret then the court may issue an injunction order restricting the employee from joining the competitor. Further, Section 73 of the Act makes provision for unliquidated damages (not stipulated in a contract), Section 74 deals with liquidated damages (stipulated in a contract) and no compensation is attracted for mere breach of contract u/s.73. 74 of the Act unless such breach resulted in an actual loss or damage to the opposite party employer. If the company forces you to complete the notice period, then if you are not holding the position of Manager/Supervisor but a workman as defined u/s.2(s) of the Industrial Dispute Act then after serving a legal notice to the Company, reach out to the office of the Labour Commissioner concerned for filing a complaint against the employer over alleged unfair labour practice to resolve the grievance. Apart, you need to file an application under Sec.33C(2) of the I D Act before the Labour Court concerned for recovery of your F & F Settlement dues receivable from the employer/Company. The application claiming dues from the employer/Company is required to be filed within one year before the Labour Court. Otherwise, you have to file a civil suit against the Company before the Civil Court for recovery of dues and other reliefs in the matter. In case you need any legal assistance from us, then contact our legal team along with all the relevant papers.
When there is a condition in your contract of employment allowing by out of the notice period, the company cannot force you to complete the notice period and even cannot withhold your relieving letter in violation of the terms of a contract of employment that adversely affects the career of an employee and that is amounted to unfair labour practice. As per the mandate of Section 27 of the Indian Contract Act,1872, any terms and conditions of an agreement that directly or indirectly compels the employee to serve the employer or puts a restriction on them joining the competitor or other employer is not valid. The employee has the right to resign from the employment even if he has agreed to the employment/service bond to serve the employer for a specific period of time. In the case where the employer is able to prove that the employee is joining the competitor to disclose the trade secret then the court may issue an injunction order restricting the employee from joining the competitor. Further, Section 73 of the Act makes provision for unliquidated damages (not stipulated in a contract), Section 74 deals with liquidated damages (stipulated in a contract) and no compensation is attracted for mere breach of contract u/s.73. 74 of the Act unless such breach resulted in an actual loss or damage to the opposite party employer. If the company forces you to complete the notice period, then if you are not holding the position of Manager/Supervisor but a workman as defined u/s.2(s) of the Industrial Dispute Act then after serving a legal notice to the Company, reach out to the office of the Labour Commissioner concerned for filing a complaint against the employer over alleged unfair labour practice to resolve the grievance. Apart, you need to file an application under Sec.33C(2) of the I D Act before the Labour Court concerned for recovery of your F & F Settlement dues receivable from the employer/Company. The application claiming dues from the employer/Company is required to be filed within one year before the Labour Court. Otherwise, you have to file a civil suit against the Company before the Civil Court for recovery of dues and other reliefs in the matter. In case you need any legal assistance from us, then contact our legal team along with all the relevant papers.
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