Hi, I am a Principal for a pvt school, for a reputed group in education & has worked in the school for 8yrs. Due to my husband's transfer, I won't be able to continue in the school. My notice period is of 3months but will only be able to serve one month notice period. My employer has accepted the resignation but is asking me to serve 3months notice period.Or else they have threatened me in writing of taking a legal action & also will not give my experience certificate. Just a addition, there has been no Annual increment in my salary for last 3yrs. My pending leaves are 8CL & 6 SL. Also my appointment letter states for 3month notice period or legal action will be taken.
Please guide ASAP
From India, Kanpur
Please guide ASAP
From India, Kanpur
Madam, You have served in a very responsible position. So kindly have an open discussion with your employer and come to an amicable solution. Your employer has every right in insisting your compliance for the notice period and you are also justified in expecting to be relieved soon. Hope you are not intending to be relieved before the completion of the academic year. Try to persuade him/her that you will complete all your responsibilities/orient any new comer before you could be relieved. A GRACEFUL DEPART is always very important.
From India, Chennai
24From India, Chennai
Hi Priya Pillai
What is a Contract of Service?
Contracts of Service & Termination
A contract of service is any agreement whether in writing or verbal, expressed or implied, whereby:
One person agrees to employ another as an employee; and
The other person agrees to serve the employer as an employee.
An apprenticeship contract or agreement is also considered a contract of service.
A contract of service can be in the form of a letter of appointment/employment.
The employer cannot change the terms and conditions of employment unless the employee agrees to it.
Any terms and conditions of employment, in a contract of service, that is less favourable than the relevant provision under the Employment Act is illegal, null and void. The provision in the Act will take precedence over a particular contractual term that is less favourable.
Difference between a Contract of Service and a Contract for Service
A contract for service differs from a contract of service.
A contract of service is an agreement whereby one person agrees to employ another as an employee and the other agrees to serve his employer as an employee. Under a contract of service, the employer must contribute CPF, and provide relevant statutory benefits such as annual leave, sick leave etc. for its employees engaged.
A contract for services, however, is an agreement whereby a person is engaged as an independent contractor, such as a self-employed person or vendor engaged for a fee to carry out an assignment or a project for the company. Under such a work arrangement, there is no employer-employee relationship, and the employee is not covered by the Employment Act.
There is no single conclusive test to distinguish a contract of employment from a contract for services. Some of the factors to be considered in identifying a contract of employment include:
Control
Who decides on the recruitment and dismissal of employees?
Who pays for the employees' wages and in what ways?
Who determines the production process, timing and method of production?
Who is responsible for the provision of work?
Ownership of factors of production
Who provides the tools and equipment?
Who provides the working place and materials?
Economic considerations
Does he carry on business on his own account or carry on the business for the employer?
Does he involve in any prospect of profit or is he liable to any risk of loss?
How are his earnings calculated and profits derived?
Essential clauses of Contract of Service
A contract of service must include the following clauses:
Commencement of employment;
Appointment – job title and job scope;
Hours of work;
Probation period, if any;
Remuneration;
Employee's benefits (e.g. sick leave, annual leave, maternity leave);
Termination of contract – notice period; and
Code of conduct (e.g. punctuality, no fighting at work).
Starting a Contract of Service
If a new recruit who has signed the letter of employment fails to turn up for work
If a new recruit has signed the letter of employment but subsequently informed the employer that he does not intend to start work with the company and failed to turn up on his first day of work, the Employment Act does not apply as the employer-employee relationship has not started.
Hence the employer will not be able to claim notice pay or any compensation under the Employment Act.
If the employer wishes to claim compensation from the recruit, he should pursue a civil claim through his own lawyer.
Confirmation of employees
There is no provision in the Employment Act on the conditions for the confirmation of an employee in his job. An employee's confirmation will depend on the terms spelt out in the employment contract. The length of an employee's service is calculated from the date on which the employee starts work and not the date of confirmation.
Hope the above explanation helps you understand the position well
From India, Bangalore
What is a Contract of Service?
Contracts of Service & Termination
A contract of service is any agreement whether in writing or verbal, expressed or implied, whereby:
One person agrees to employ another as an employee; and
The other person agrees to serve the employer as an employee.
An apprenticeship contract or agreement is also considered a contract of service.
A contract of service can be in the form of a letter of appointment/employment.
The employer cannot change the terms and conditions of employment unless the employee agrees to it.
Any terms and conditions of employment, in a contract of service, that is less favourable than the relevant provision under the Employment Act is illegal, null and void. The provision in the Act will take precedence over a particular contractual term that is less favourable.
Difference between a Contract of Service and a Contract for Service
A contract for service differs from a contract of service.
A contract of service is an agreement whereby one person agrees to employ another as an employee and the other agrees to serve his employer as an employee. Under a contract of service, the employer must contribute CPF, and provide relevant statutory benefits such as annual leave, sick leave etc. for its employees engaged.
A contract for services, however, is an agreement whereby a person is engaged as an independent contractor, such as a self-employed person or vendor engaged for a fee to carry out an assignment or a project for the company. Under such a work arrangement, there is no employer-employee relationship, and the employee is not covered by the Employment Act.
There is no single conclusive test to distinguish a contract of employment from a contract for services. Some of the factors to be considered in identifying a contract of employment include:
Control
Who decides on the recruitment and dismissal of employees?
Who pays for the employees' wages and in what ways?
Who determines the production process, timing and method of production?
Who is responsible for the provision of work?
Ownership of factors of production
Who provides the tools and equipment?
Who provides the working place and materials?
Economic considerations
Does he carry on business on his own account or carry on the business for the employer?
Does he involve in any prospect of profit or is he liable to any risk of loss?
How are his earnings calculated and profits derived?
Essential clauses of Contract of Service
A contract of service must include the following clauses:
Commencement of employment;
Appointment – job title and job scope;
Hours of work;
Probation period, if any;
Remuneration;
Employee's benefits (e.g. sick leave, annual leave, maternity leave);
Termination of contract – notice period; and
Code of conduct (e.g. punctuality, no fighting at work).
Starting a Contract of Service
If a new recruit who has signed the letter of employment fails to turn up for work
If a new recruit has signed the letter of employment but subsequently informed the employer that he does not intend to start work with the company and failed to turn up on his first day of work, the Employment Act does not apply as the employer-employee relationship has not started.
Hence the employer will not be able to claim notice pay or any compensation under the Employment Act.
If the employer wishes to claim compensation from the recruit, he should pursue a civil claim through his own lawyer.
Confirmation of employees
There is no provision in the Employment Act on the conditions for the confirmation of an employee in his job. An employee's confirmation will depend on the terms spelt out in the employment contract. The length of an employee's service is calculated from the date on which the employee starts work and not the date of confirmation.
Hope the above explanation helps you understand the position well
From India, Bangalore
The legal position is that you are obliged to work out your contractual notice period if your employer wants you to.
You have done the right thing by seeking to negotiate an earlier release. However, if your employer does not want to agree to this then you have a choice: you can comply with your employer’s wishes and work the 3-month notice period in full or you can break the contract by leaving earlier.
If you choose to leave early, an employer is entitled to stop your pay and benefits but they cannot force you to stay and carry out your work.
They could seek another legal remedy against you including a) compensation for breach of contract against you, claiming any financial loss they say arises as a result of your early departure or b) applying for a Court order to stop you working somewhere else, if your new employer is a competitor, for example.
It is relatively rare for an employer to take legal action against an employee who leaves early in breach of their contractual notice period, but it really depends on all the circumstances.
If your departure will cause the employer financial loss or you are leaving to go to a competitor, they are more likely to take action against you.
From India, Bangalore
You have done the right thing by seeking to negotiate an earlier release. However, if your employer does not want to agree to this then you have a choice: you can comply with your employer’s wishes and work the 3-month notice period in full or you can break the contract by leaving earlier.
If you choose to leave early, an employer is entitled to stop your pay and benefits but they cannot force you to stay and carry out your work.
They could seek another legal remedy against you including a) compensation for breach of contract against you, claiming any financial loss they say arises as a result of your early departure or b) applying for a Court order to stop you working somewhere else, if your new employer is a competitor, for example.
It is relatively rare for an employer to take legal action against an employee who leaves early in breach of their contractual notice period, but it really depends on all the circumstances.
If your departure will cause the employer financial loss or you are leaving to go to a competitor, they are more likely to take action against you.
From India, Bangalore
I would suggests you to serve the notice period anyway. Then talk with your employers in humble way so that they can understand your reason and let you allow to go.
From Pakistan, Karachi
From Pakistan, Karachi
Have a peaceful discussion about your relieving time and explain him about your situation. So that your employer may accept.
From India, Chennai
From India, Chennai
Dear Priyapillai,
As you have mentioned in your post that they have accepted your resignation. Does your resignation state that you would serving one month notice only? If yes and do you have any kind of confirmation email/letter apart from verbal communication from them?
Please note: Sick leaves are paid only if you are sick and cannot be c/f. Casual leaves can be c/f provided its paid leave. Please look at the termination clause in your appointment letter/Offer letter and share the same for us to provide you with accurate information.
The above post does not provide much information about your employer details apart from your say in it.
From India, Bangalore
As you have mentioned in your post that they have accepted your resignation. Does your resignation state that you would serving one month notice only? If yes and do you have any kind of confirmation email/letter apart from verbal communication from them?
Please note: Sick leaves are paid only if you are sick and cannot be c/f. Casual leaves can be c/f provided its paid leave. Please look at the termination clause in your appointment letter/Offer letter and share the same for us to provide you with accurate information.
The above post does not provide much information about your employer details apart from your say in it.
From India, Bangalore
Dear Ms. Priya,
Normally, as per employment contract you have to serve three months notice period or otherwise, you have to pay the notice period shortfall payment to your employer and leave the organisation. Even your leaves can also be adjusted towards your notice period. This is how all the organisations are working. Please check with your employer if there is any rule of this type is being follow up with your organisation. If it is so, you can settle your case amicably.
Regards,
P K Sudarsan
Senior Executive HR
From India, Chennai
Normally, as per employment contract you have to serve three months notice period or otherwise, you have to pay the notice period shortfall payment to your employer and leave the organisation. Even your leaves can also be adjusted towards your notice period. This is how all the organisations are working. Please check with your employer if there is any rule of this type is being follow up with your organisation. If it is so, you can settle your case amicably.
Regards,
P K Sudarsan
Senior Executive HR
From India, Chennai
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