I have resigned from a known Private Life Insurance Co. and the issue was regarding my Notice Period. Full n Final Settlement done and I found my PL's not encashed and taken against short notice period. I had given 1 month notice period as mentioned in my appointment letter. My signed appointment letter which states 1 month and then there was a change in policy which changed to Notice Period to 3 months(intimated thru email). I have not signed any letter which mentions this 3 months Notice Period. So in a sense I have not agreed to the new Notice Period. But the appointment letter states that employee needs to abide to company policies as amended from time to time. I believe such policy applies to work timings, dress code etc.. and not to notice period where it needs to be mutually agreed upon Not sure if I am right or wrong. Does that means I have to give 3 months NP or I have rights to fight with HR and get the encashment of my PLs
From India, Mumbai
From India, Mumbai
19
I am sorry but I do not agree to Suja. The company can increase the NP from time to time as it is beneficial to them. So what about the employee? The employer is a gainer in all respect. Moreover the offer letter which the company issued to its employee is a form of contract.So, if any major changes are done to the contract then it has to be mutually agreed by both the parties. The employee joins the company based on the initially terms of his offer letter/contract. If the employer wants to change the contract terms he has to get an agreement from the employee.
From United Kingdom, London
From United Kingdom, London
Dear All
I agree with Mr Manoj Bhawsinghjka. If the gentleman who posted the first post in this thread is a "workman" as defined under the Industrial Disputes Act, the change in the length of the notice period would amount to a "change in usage" specified in item no.8 and also would amount to "the alteration of an existing rule" specified in item no.9 of the Fourth Schedule to the Industrial Disputes Act. Service conditions specified in the fourth schedule to the Act cannot be changed without following the procedure prescribed under section 9A of the Industrial Disputes Act. Therefore the action of the management in changing the notice period from one month to three months through e mail amounts to violation of section 9A of the Industrial Disputes Act. But the question is what is the remedy open to the affected employee. As of now there appears to be no remedy for him. The management/employer would not have effected the change in the notice period on its own through e mail in the case of strongly unionised workmen. The affected employee could try his luck fighting with the management. The question is how far he would be successful. Unfortunately, to those employees who are not covered by the provisions of the Industrial Disputes Act, even the semblance of a protection given by section 9A of the Industrial Disputes Act is not available.
With regards
From India, Madras
I agree with Mr Manoj Bhawsinghjka. If the gentleman who posted the first post in this thread is a "workman" as defined under the Industrial Disputes Act, the change in the length of the notice period would amount to a "change in usage" specified in item no.8 and also would amount to "the alteration of an existing rule" specified in item no.9 of the Fourth Schedule to the Industrial Disputes Act. Service conditions specified in the fourth schedule to the Act cannot be changed without following the procedure prescribed under section 9A of the Industrial Disputes Act. Therefore the action of the management in changing the notice period from one month to three months through e mail amounts to violation of section 9A of the Industrial Disputes Act. But the question is what is the remedy open to the affected employee. As of now there appears to be no remedy for him. The management/employer would not have effected the change in the notice period on its own through e mail in the case of strongly unionised workmen. The affected employee could try his luck fighting with the management. The question is how far he would be successful. Unfortunately, to those employees who are not covered by the provisions of the Industrial Disputes Act, even the semblance of a protection given by section 9A of the Industrial Disputes Act is not available.
With regards
From India, Madras
Hello Mr Harikrishnan,
Thanks for sharing your valuable thoughts. I have a query for you. As all of us are aware that BPO industry is rapidly growing in India. Many BPO employees have the same problem as stated above wherein the employer suddenly increases the notice period to fulfill their needs. Please correct me if I am wrong. As far as I know there is always a provision of buying out the notice period if someone is not able to serve complete notice period to his or her company. But what legal actions can we take against a comapny who has increased its notice period from 1 to 3 months and also not allowing the option of buying out the notice perido to its employees which is also against the BPO industry standards. In this way they do not give the releiving letter to their employees which is a big challenge for employees like us. What can we do in such situtaion? Please advice.
Kind Regards
Manoj Bhawisnghka
From United Kingdom, London
Thanks for sharing your valuable thoughts. I have a query for you. As all of us are aware that BPO industry is rapidly growing in India. Many BPO employees have the same problem as stated above wherein the employer suddenly increases the notice period to fulfill their needs. Please correct me if I am wrong. As far as I know there is always a provision of buying out the notice period if someone is not able to serve complete notice period to his or her company. But what legal actions can we take against a comapny who has increased its notice period from 1 to 3 months and also not allowing the option of buying out the notice perido to its employees which is also against the BPO industry standards. In this way they do not give the releiving letter to their employees which is a big challenge for employees like us. What can we do in such situtaion? Please advice.
Kind Regards
Manoj Bhawisnghka
From United Kingdom, London
Dear Mr.Manoj Bhawsinghka
The issue raised by you is not a new one. This practice of the management/employer in increasing on their own, the notice period subsequent to the employment of individuals is strictly speaking a violation of the provisions of Section 9A of the Industrial Disputes Act as pointed out by me in my last post. This practice is prevalent not only in BPO sector or in IT industries. It is prevalent in retail chains and other establishments where white collar employees are not Unionised. I am specifically using the term "unionised" because this does not happen in nationalised banks where there is strong union presence. But this could happen in private banks or private insurance companies. You would like to know the reason for this condition. If there is a change in the conditions of service applicable to workmen which is covered by section 9A of the Industrial Disputes Act, the option open to the workmen is (i) either accept the change proposed by the employer which puts an end to the issue:the second option is (ii) raise a dispute under the Industrial Disputes Act against the proposed change. Now the question is who can raise a dispute against the proposed change. If you go through the provisions of the Industrial Disputes Act you would see there is a section called section 2A. This gives a right to an individual workmen to raise a dispute about his dismissal,discharge, termination or retrenchment. In other words if an individual worked loses his job, then he can challenge his dismissal on his own by approaching the appropriate forum and following the methods prescribed under the Industrial Disputes Act. You would also see that this section 2A was introduced through an amendment and was not there when the Industrial Disputes Act was passed in the year 1947. Recently the Central Government had further amended Section 2A. That is besides the point. Now why should the Government introduce section 2A. The reason being the judgments of the Honourable Supreme Court of India interpreting the definition of the term "industrial dispute" as defined under section 2(k) of the Industrial Disputes Act. The Honourable Supreme Court while interpreting the definition of the term "industrial dispute" as defined under section 2(k) of the Industrial Disputes Act, held that for a dispute between the employee(s) and the employer to become an industrial dispute, that dispute should be sponsored by a "body of workmen". The Honourable Supreme Court said that the dispute of the employee(s) should be espoused by a body of workmen and then only that dispute becomes an industrial dispute. Prior to the introduction of section 2A this interpretation was applied to disputes relating to the dismissasl or discharge of individual workmen. Meaning thereby, prior to the introduction of section 2A if a worker who was either dismissed or discharged or terminated or retrenched wanted to seek remedy under the Industrial Disputes Act, he had to have his dismissal espoused or supported by the Union for seeking remedy under the Industrial Disputes Act. Conversely, if an individual worker who was dismissed cannot get the support of the Union, then he could not seek remedy under the Industrial Disputes Act. The Government wanted to alter this situation and came out with the introduction of section 2A. Now what is the relevance of these happenings to your post. As I said for a dispute between an employee(s) and his employer to become an industrial dispute, the espousal of that dispute by a body of workmen is necessary. If you read the provisions of the Industrial Disputes Act you would find that the term "trade union" is never used. The term "body of workmen" is used by the Honourable Supreme Court while interpreting the term "industrial dispute". Then the question is who is that "body of workmen'. The trade unions functioning in the establishment or industry were held to be the body of workmen who could espouse the cause of the workmen employed before the authorities under the Industrial Disputes Act. With the introduction of section 2A which gives right to the individual workme to seek remedy before the authorities under the Industrial Disputes Act, other issues which affect the workmen/employees as a whole had to be espoused by the "body of workmen" in other words "trade unions" to espouse the dispute. Now coming to the issue raised by you, the change in the notice period referred to by you may affect all the workmen employed in the establishment in which case it has to be espoused by the body of workmen to seek remedy under the Industrial Disputes Act. If the change in notice period is for a single individual only, then also he has to have it espoused by the body of workmen. The problem here is that in BPO industries and IT industries and other white collar employments, there is no unionisation for several reasons. This is the main reason for the employer to change the service conditions as he desires. My view is that the Industrial Disputes Act should be suitably amended to give right to the indiividual worker to seek remedy under the Industrial Disputes Act without the espousal of the Union.Public opinion should be generated to achieve this objective.
With regards
From India, Madras
The issue raised by you is not a new one. This practice of the management/employer in increasing on their own, the notice period subsequent to the employment of individuals is strictly speaking a violation of the provisions of Section 9A of the Industrial Disputes Act as pointed out by me in my last post. This practice is prevalent not only in BPO sector or in IT industries. It is prevalent in retail chains and other establishments where white collar employees are not Unionised. I am specifically using the term "unionised" because this does not happen in nationalised banks where there is strong union presence. But this could happen in private banks or private insurance companies. You would like to know the reason for this condition. If there is a change in the conditions of service applicable to workmen which is covered by section 9A of the Industrial Disputes Act, the option open to the workmen is (i) either accept the change proposed by the employer which puts an end to the issue:the second option is (ii) raise a dispute under the Industrial Disputes Act against the proposed change. Now the question is who can raise a dispute against the proposed change. If you go through the provisions of the Industrial Disputes Act you would see there is a section called section 2A. This gives a right to an individual workmen to raise a dispute about his dismissal,discharge, termination or retrenchment. In other words if an individual worked loses his job, then he can challenge his dismissal on his own by approaching the appropriate forum and following the methods prescribed under the Industrial Disputes Act. You would also see that this section 2A was introduced through an amendment and was not there when the Industrial Disputes Act was passed in the year 1947. Recently the Central Government had further amended Section 2A. That is besides the point. Now why should the Government introduce section 2A. The reason being the judgments of the Honourable Supreme Court of India interpreting the definition of the term "industrial dispute" as defined under section 2(k) of the Industrial Disputes Act. The Honourable Supreme Court while interpreting the definition of the term "industrial dispute" as defined under section 2(k) of the Industrial Disputes Act, held that for a dispute between the employee(s) and the employer to become an industrial dispute, that dispute should be sponsored by a "body of workmen". The Honourable Supreme Court said that the dispute of the employee(s) should be espoused by a body of workmen and then only that dispute becomes an industrial dispute. Prior to the introduction of section 2A this interpretation was applied to disputes relating to the dismissasl or discharge of individual workmen. Meaning thereby, prior to the introduction of section 2A if a worker who was either dismissed or discharged or terminated or retrenched wanted to seek remedy under the Industrial Disputes Act, he had to have his dismissal espoused or supported by the Union for seeking remedy under the Industrial Disputes Act. Conversely, if an individual worker who was dismissed cannot get the support of the Union, then he could not seek remedy under the Industrial Disputes Act. The Government wanted to alter this situation and came out with the introduction of section 2A. Now what is the relevance of these happenings to your post. As I said for a dispute between an employee(s) and his employer to become an industrial dispute, the espousal of that dispute by a body of workmen is necessary. If you read the provisions of the Industrial Disputes Act you would find that the term "trade union" is never used. The term "body of workmen" is used by the Honourable Supreme Court while interpreting the term "industrial dispute". Then the question is who is that "body of workmen'. The trade unions functioning in the establishment or industry were held to be the body of workmen who could espouse the cause of the workmen employed before the authorities under the Industrial Disputes Act. With the introduction of section 2A which gives right to the individual workme to seek remedy before the authorities under the Industrial Disputes Act, other issues which affect the workmen/employees as a whole had to be espoused by the "body of workmen" in other words "trade unions" to espouse the dispute. Now coming to the issue raised by you, the change in the notice period referred to by you may affect all the workmen employed in the establishment in which case it has to be espoused by the body of workmen to seek remedy under the Industrial Disputes Act. If the change in notice period is for a single individual only, then also he has to have it espoused by the body of workmen. The problem here is that in BPO industries and IT industries and other white collar employments, there is no unionisation for several reasons. This is the main reason for the employer to change the service conditions as he desires. My view is that the Industrial Disputes Act should be suitably amended to give right to the indiividual worker to seek remedy under the Industrial Disputes Act without the espousal of the Union.Public opinion should be generated to achieve this objective.
With regards
From India, Madras
Respected Harikrishnan,
If employer wants to give a proposal on change of notice period to be equal from both employer and employee side as 90 days.
May i request you to assist in sharing with us a copy of the same as a saple document.
For instance Employer side current NP is 30 days and employees side 90 days. Now the employer wants to regularise the NP by modifying from both sides to serve 90days
Pl assist.
Thanks Shweta
From India, Bangalore
If employer wants to give a proposal on change of notice period to be equal from both employer and employee side as 90 days.
May i request you to assist in sharing with us a copy of the same as a saple document.
For instance Employer side current NP is 30 days and employees side 90 days. Now the employer wants to regularise the NP by modifying from both sides to serve 90days
Pl assist.
Thanks Shweta
From India, Bangalore
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