Sep 12 2023, 10:55 AM
QUOTE(redracer2004 @ Sep 9 2023, 12:46 PM)
He was demanded by the company for the following:
1. Notice to be extended to project ending time. He threw in resignation on 2nd Sept and was expected to join new company by early December but his project will end the week before Christmas.
2. No leave can be used to offset his notice period. These leaves will be considered burned as no cash is payable to him.
3. If he chooses to leave early, the company can sue him based on breach of terms of the contract.
Problem is his initial offer letter did not have this and he was not asked to sign any additional suffix documents that indicated the change in the notice periods.
What should he do?
Bonus Question: The company even rejected the new company's offer of buying him out saying what they need is not money but a person to run through the whole project. Is that even legal to reject a buyout?
Hope a bit of my HR knowledge can help your friend predicament;1. Notice to be extended to project ending time. He threw in resignation on 2nd Sept and was expected to join new company by early December but his project will end the week before Christmas.
2. No leave can be used to offset his notice period. These leaves will be considered burned as no cash is payable to him.
3. If he chooses to leave early, the company can sue him based on breach of terms of the contract.
Problem is his initial offer letter did not have this and he was not asked to sign any additional suffix documents that indicated the change in the notice periods.
What should he do?
Bonus Question: The company even rejected the new company's offer of buying him out saying what they need is not money but a person to run through the whole project. Is that even legal to reject a buyout?
1. Yup, by right your friend last employment date will be on the 02/12/2023. According to Employment Act 1955 Section 12(1), either Company or employee can submit their notice of terminate at any period/time as long as they follow the length of notice on their employment contract. Also, once employee shoot their resignation letter your friend no longer an employee as of 03/12/2023 since its not a requirement under Employment Act that Company need to give "Acceptance of Resignation". Company cannot simply extend the notice period.
2. Any unutilized annual leave must be paid on the last day of employment (Monthly Salary/26 days = Daily Salary) then (Daily Salary * Unutilized Annual Leave = Encashed Leave). Its against the law to burn employee unutilized leave as per Employment Act 1955 Section 60E(3A).
3. Technically, your friend never did anything wrong since he has properly gave his notice of resignation as per their employment contract. From my perspective, the terms "You can resign after project completed" breaches Contract Act 1950 Section 24, since Company breached the Employment Act already by not recognizing the length of notice period. Basically, holds no water loh.
4. Each offense that breaches Employment Act 1955 carries RM50k in penalties.
What should your friend do?
a. As others users has said, find any evidence that your friend has tendered his resignation. The easiest one is by email and hopefully he has cc`ed multiple person includling his personal email.
b. Your friend did nothing wrong, while currently serving his notice period until 02/12/2023 ask him to negotiate with the HR based on the provisions of the Employment Act 1955.
c. Ensure that the Company acknowledge his last employment date and calculate how many unutilized annual leave he still have. Since, unused annual leave MUST be paid on his final salary from the Company.
d. If his HR blatantly/arrogantly refuse to acknowledge his last employment date and his RIGHTS for the unused leave encashments, then you tell Company HR that you will seek a legal advice and probably lodge a complaint against the Company at Jabatan Tenaga Kerja. No competent and sane HR wanted to deal with the officer, since everything must be settle quickly, if not Jabatan Tenaga Kerja will escalate to the labor court. (-$$$ for the Company).
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