I am in HR Management, dealing with an employee who wants to resign.

Situation:

An employee submitted his resignation letter giving 3 months' notice. At the point of submission, we mutually agreed that he will use these 3 months to properly hand over all his work.

Unfortunately, his performance became really bad afterwards and he became a very bad influence to other employees. Many times our existing staff, even the boss, had to cover for his lack of performance. Hence, we felt that it is better that he leaves immediately instead of continuing serving the notice period..This was about 1 month after he tendered the resignation letter.

My questions are as follows:

1) Can we waive the notice period without anyone paying any indemnity, even if the employee wants to serve the full notice period?

2) Can we waive the remaining 2 months' notice even if that employee is not willing to stop 2 months earlier? Note that this was in the middle of the notice period, not at the beginning.

3) Must the waiver be done at the point of tendering resignation, or can we waive it anytime during the notice period?

My concern arises because I have heard of cases where the employee who was "allowed" to leave earlier before fully serving his notice, turned around and bit the employer by complaining to the Labour Dept, stating the Employer forced him to stop work earlier than his initial last day, causing him to lose the remaining 2 months' salary (he has planned his first day in his new job to start immediately after the 3 months' notice). This, despite he signed the letter of early release from the Employer. I heard he (employee) won the case.

Because of this, we are thinking of putting a clause in our Letter of Employment that states the Employer has all rights to waive the notice period given by employees who resigned at anytime during the notice period. Will this clause get my company into trouble with the Labour Dept.?

Thanks in advance.

then to protect the company, perhaps issue him show cause letter on his poor performance.

Why are you asking for legal advice in this board? Are you asking to be ill advised?

If you want to be safe with the law, you need to consult an attorney. Malaysia is a common law country, which means court precedents are important and judges have leeway to consider past rulings and their judgment of 'fairness', not just be restricted to codified law. A simple reading of the employment act may be misleading.

If you want to save money, then just talk to your employee. Have you even talked to the employee?

This post has been edited by nexous: Aug 1 2013, 03:25 PM

Why dont u ask Labour Dept directly?

1) no, as an employer, you can't waive his notice period. its either you terminate his service by paying him two months salary as what its stated in the apointmenr letter.

2) no, only if both parties mutually agreed.

3) no, only if the employee request for early release and the management accepted and issue acceptance resignation letter to the employee.

The employee stated in your case probably won by citing duress, i.e. his employer "pressured" him to sign the early release letter. It's hard to prove that there is no duress, given the employee did not ask for an early release to begin with (not stated in his resignation letter).

I'm no lawyer, but putting a clause in for the benefit one party at the expense of another could make the clause voidable. How would you like it if the clause was written to benefit the employee, i.e. the Employee has all rights to waive the notice period given and just resign as and when they want without notice (hence no handover whatsoever)?

in the first place, why 3 months notice? normal 1 month enough la, but previously i also got 3 months notice (which i hate), but that is because it was a management level job.

how did you end up in HR dept? Furthermore, you looks like very new to being HR and they let you be the head of dept. Wow..do you mind telling which company you are working in? I will take note to avoid this company in the future.

Anyway, I agree that you should consult labour office. They can advice you better.

PS: if you really really desperate for help, do PM me. I can forward your question to my relative who have 10+ years doing HR.

This post has been edited by abubin: Aug 1 2013, 04:43 PM

hi ts, I don't think you re right about putting that clause into your employment letter.First, every contract of service has termination clause which saying either party may terminate the employment contract by giving a certain amount of notice, such as two weeks' notice. Employer cant make their own terms and conditions as they want to, if you have the clause" employer has the right to waive the employee`s notice period" at their discretion when you have the termination term in effect, it doesn't seem right. its obvious that the waiver clause is not favourable and unfair to the employee and defeat the purpose of the termination clause.

This post has been edited by DeMl: Aug 1 2013, 05:03 PM

please respect the agreement, as HR staff, you must take care of staff welfare,

HR asking about hr matters?
lulz, why not u consult with your superior

From my point of view, adding a clause to purposely allowed the employer to waive the resignation period is unethical & inhuman as it tends to be on the negative side rather than positive side, thus it won't be approved by the Labor department as well.

Should this be implemented:

For every employee that tender resignation will be subjected to termination earlier than the tendered notice period as employer will take this opportunity to 'punish' the leaving employee & also on basis of 'cost savings' (don't need to pay another month of salary).

This will be unfair to the good employee who's leaving & he/she will be left with no salary for the particular month due to the employer's action, while pending to join the new workplace.

Labor law stipulates that minimum period of resignation notice is required to be tendered & well acknowledged by both parties.

If the employer wanted the employee to leave earlier than the agreeable period, they should compensate the employee 1st.

If this happened to almost all employees per HR record, my thought is why don't just revised the notice period to 1 month instead of 3 months since it is so troublesome.

Key point is employee is leaving for a reason, if the company is good, employee will stay, don't even bother to mention about resignation. Work job wise, it is for management to decide how to catch up after the employee leaves.

Which makes me wonder - when company HR happily prolongs the notice period (my company just 'announced' to every employee in the company that our 2 months notice period will become 3 months notice period), thinking happily now that your staff will be facing more obstacles to jump ship to join competitors, did the HR figure that this works both way? HR will now face more obstacles to fire someone as well?

well ... I think this is fair - you have a 3 months notice period - serve it. To me, serving a 3 months notice is not something that's only limited to the employee... In some sense, the company should serve the 3 months to the employee as well.

When you terminate an employee by giving notice, it is the employee's right to remain employed during the notice period that you (the employer) has given. You do NOT have the right to 'waive' the notice as you are the one terminating the employee by giving notice in the first place. If you want the employee to leave immediately, then you pay him in lieu of notice.

On the same token, when an employee resigns by giving notice, it is the employer's right to keep that employee employed during the notice period the employee has given. In this case, you have the right to waive the notice and allow the employee to leave immediately.

As to whether you can include a clause to "waive" the notice, what you mean is that you want a clause that says the employer has the right to vary the notice period (between 1 day to xx months) the employer needs to give the employee when they terminate him by giving notice. Sure you can include this in the contract as long as the employee earns <RM1500 and therefore not under the scope of the Employment Act. But whether any sane employee will sign such a one sided contract is another matter. I would only sign such a contract if the employee also has the right to vary his resignation notice period between 1 day and xx months.

well said sir. its plain poor management to change employment contract terms just because ONE employee decides to be a d*** and you as HR should take necessary step as per your own company rules to deal with it. if you cant do that then what is HR role?

This thread is now open for

I wonder what company is TS working in.

U can ask him to leave, just pay him the remaining two months salary. He win, you win.

Two month salary is nth compared the damage he had done.

Maybe there can be a mutual termination thing? I am unsure since I am not a lawyer. But in my previous company, I talked to HR about mutual termination, and I get to leave a month early. Of course I don't get any salary for the month that I had already left...

1 month is sufficient for most of the handover work, even for manager level. I had a manager that left within 24 hours notice and life goes on. The longer the person stays, it will only demotivate the other staffs in the company. Furthermore once a person had tender the resignation, don't expect him to perform as before. No point of having the notice period beyond 1 month. Company that require notice of 2-3 month is not because of handover issue, but more to discourage employee from leaving, which I thing is not right way and will only bring more harm to the company. A win-win situation will be 1 month.

Woh...chill chill, people. Malaysian employees are really that distressed huh. =P

Actually, I posted this question to an HR expert before, even that HR expert also gave me contradicting answers. So I went online do some research, and the result is also mixed. So I post here to see what further opinions I can get. Looks like all is in favour of employee, which is understandable because most of us are responsible employee. It's just those few rotten apples.

We're a small company, only just starting to expand. So it is not surprising that many such cases are new to us. We are also trying to learn and grow to be a fair and "humane" employer. I guess, judging from the clause I proposed above, my company must look really lousy to you guys. We do have other benefits above and beyond the provisions of Employment Act. Not trying to justify that with this, but just want you all to know that my company is not those "squeeze employee kaw-kaw" type.

During a HR course I attended (before this case happened), the trainer told us that we should not condone bad employee behaviour by paying them to leave earlier.

At the same time, I cannot waive the notice period without paying because that seems unfair to employee.

So the only solution left is take disciplinary actions as if he is not a resigning staff (because he did, after all, commit misconduct).

In conclusion, no easy way out. Haha!

Looks like I should ask the Labour Dept. for further advice. Hopefully no around-the-bush answer from them. Thanks everyone, for your time!

This is silly. Anyone who studied organisational culture/performance/leadership/motivation whatever knows that it's silly to expect full commitment from any employee after notice has been given. This is why most companies only want one month's notice and why some companies prefer to just pay off the one month's notice instead of letting the employee work so as to avoid poor performance or worse liability.