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Can leave be considered as notice period ?
Human Resources » Attrition and Retention


Chrm Message From: jayde_renee Total Posts: 26 Join Date: 16/09/2007
Rank: Executive Post Date: 14/07/2008 02:08:18 Points: 130 Location: United States

Hi chrm colleagues,

I am looking after HR in a ITeS company in Hyderabad. One of our employee has recently left our company and joined some other company. Basically after the full and final settlement cheque got cleared by the bank, he is creating all kinds of nuicence.And telling us to return the notice pay amount.

I am giving a brief of the whole episode.I would like to request all of you to help me out on this.

# He has sent us a mail regarding his problem to come to Hyderabad, and the mail contains that either our company need to give him leave for 3-4 months or consider the mail as his Notice to Company.Based on this mail we allow him for leave for one month, and told him that he should take rest and on joining he should shift to Hyderabad , so that he will not face any problems in future.

#During this leave period he looked t for a job and got an offer.When he came for the full and final settelent we have deducted one months salary as the notice pay and in
the "whether he has served notice period" column we mentioned NIL .

#Moreover this employee does not have any Leave(PL and CL) to avail.

# When he came to our office he signed on the full and final settlement from and received the cheque (after deduction of Notice PAy)

# He deposited the cheque in the bank and after the cheque did credited to his account he is sending us mails stating that he will sue the company as he has given us notice and why we have dedcudted one months salary in lieu of notice pay.

My question is:

Can an employee go on a leave for 1 month and also use this one month leave as notice period? After signing on the full and final settlement can the employee raise questions against the agreed full and final amount?that to after 5-7 days of receipt of the cheque?

Regards

Jayde

Chrm Message From: biswajit.sirohi Total Posts: 15 Join Date: 16/09/2007  
Rank: Executive Post Date: 14/07/2008 02:11:57 Points: 75 Location: United States

Dear jayde,

Leave period can not be take as notice period, recovery of notice period should be as per the terms condition of offer letter. In this situation he can not ask for refund of Notice pay,

Thanks & Regards

Biswajit

Chrm Message From: bindu Total Posts: 59 Join Date: 16/09/2007  
Rank: Manager Post Date: 14/07/2008 02:13:25 Points: 295 Location: United States

As per my understanding company should not allow him to be on leave during the notice period.The deduction of notice pay is correct.

The notice period starts after the resignation letter and hence this idea that he comes back from leave and resigns and then says the leave period was notice period should not be accepted.

Yes it is correct that many organizations instead of encashing PL (annual Leave) do adjust that against notice period requirements, but I have yet to hear of the idea that a person should be allowed to be on leave during the notice period. The purpose of the notice period is that the individual works so as to ensure a smoother transition for the organization.The flip side is that as per the contract individual's services cannot be terminated by an organization without giving a similar notice period or pay in lieu-of the same as one -way contracts are not found binding by most courts.

So my advice is that you should not get too afraid by this threat of legal action.However kindly note that I am no lawyer and this should not be construed as legal advice. You should consult your legal cell/labor lawyer for the same.

My advice is based on what I practiced during my career as an HR professional.

Bindu

Chrm Message From: sanjay04 Total Posts: 57 Join Date: 16/09/2007  
Rank: Manager Post Date: 14/07/2008 02:14:31 Points: 285 Location: United States

I dont know what was the terms and condition of appointment of that particular employee but if any clause was there (I hope it should be) regarding notice period or salary in lieu of may be of 3 months or 1 months he has to fulfill that.

Secondly when a person is already availing leave means there is no leave is left in his account and so leave can not be counted as notice period untill and unless an approval has been obtained in advance. e.g suppose i have 30 days leave balance in my account and if i have to serve the notice of 1 month i cant avail those leave in that case if i want to adjust it against my notice period.

so i dont think there is any confusion but as i said you have not mentioned the exact sentence used in his terms and condition of appointment regarding notic period or salary in lieu of. so kindly clarify but if it has been mnentioned that you have to serve a notice period of 01 month or 3 month or salary in lieu of thn there is nothing to worry about. Friends i trust i am right kindly put some more information if any one have.

regds
sanjay mewar

Chrm Message From: Uday Total Posts: 28 Join Date: 16/09/2007  
Rank: Executive Post Date: 15/07/2008 01:19:56 Points: 140 Location: United States

First of all let me ask you that in your releave letter to the employee do you mention that the full and final settlement is given to the employee and has the employee given an acceptance to it. If it is so then you are safe.

Secondly check your policies regarding notice period.

Thirdly as you said the employee was not having any balance leave so you have the full rights to consider the month as leave without pay.

So my friend either ways you are on the safer end.

And do remember considering leave as notice period entirly depends on the companies policy. if its not then its time to change the clause. At least my company does not allow any kind of leave after the notice period.

uday


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