Why not like this, instead of having sleepless nights, why not sign the letter of offer first?

Thats what I did anyway, i rush my new company HR for the Letter of Offer than only tender resignation.

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Added on March 15, 2012, 1:15 pmsee below

Generally I agree with Aoumi, you might also want to look back into your employment contract as to how you will be entitled to the 13th month bonus.

If your contract states your entitled to the 13th month bonus in any case, than i don't see why your not entitled to a pro-rated bonus? (or if its a badly drafted contract and doesn't mentioned that it will be pro-rated may be you are even entitled to the full amount!)

Read & understand your contract, once you have a case than only you escalate.

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Added on March 15, 2012, 1:21 pmFrom a Legal Standpoint.

When you sign a Letter of Offer, it constitutes acceptance, with acceptance, it becomes a contract.

If you decide to bail on the company, does the company have a cause of action against you? answer is Yes.

BUT, generally most company's won't pursue a court action, perhaps because:-

(a) too petty;
(b) too costly; and
© they can't prove they suffer any loss or damage as a result of your departure (this case will be different if you are being paid and suddenly you decide to resign prematurely without giving notice); and

HOWEVER, one thing they can do is:

(a) blacklist you.

No one like getting stood-up and left in the rain without an umbrella, if you "think" it worth the risk by all means go ahead. It's your career choice/move.

My 2cents worth of advice, don't be fickle.




This post has been edited by aurora97: Mar 15 2012, 01:21 PM

if you intend to use leave to off-set your notice period, you need to inform your HR & Boss in advance. Note that your Boss can decline you from taking any leave or off setting your leave against notice period.

unless your boss allows you to convert leave into pay, you can consider all your leave burnt.

if you can wait, just wait until your boss come back before you tender (maybe he/she is coming back in one or two days time?). I personally feel its rude to tender without your boss having the opportunity to talk to you (normally such chats end up being awkward anyway).

in any case, if you choose the alternate route. Than may i suggest you call ahead instead, ask the officers in hr dept who deals with resignation than you serve your notice on that person. Most importantly of all, don't forget to get receipt of acknowledgment from the officer concerned.

This is important, becoz this determines when your notice period starts and end.

It your current company aware of the buy out?

If annual leave is not taken into consideration for the buy out, the new company may end up paying more... you might want to argue for your 13 AL days be included in ur notice period.

Other than persons subject to employment act, the rest of us unfortunate bunch are subject to the terms and conditions contained in our offer letter. So whatever we signed, that would become the terms and conditions of our engagement. Now the keyword one should note is “consent”, the act of signing the letter of offer indicates that you have consensually bound by the terms and conditions offered by the company.

Now your employer has indicated that he/she would like to introduce some funky new terms and conditions in which you are no agreeable and also you have pointed out a super clause in which the employer has discretion to change the terms and conditions of the offer in which you have accepted.

Changes per se to an arrangement must always be consensual, in this instance there should be supplemental issued and you will have to sign off in order for the new conditions to take effect.

To go one step further, why not your employer revise your salary downwards since they are at it?

If a person promises you something but delivers another mid stream, it’s fair to say you can walk away from that promise as well since the very essence and nature of the arrangement has been changed.

Anything bordering of being legally contentious and prone to dispute, I suggest you seek a solicitors advice. An open forum such as this is not an appropriate venue to address your concerns.

Funny thing is, if probation can circumvent paying EPF to staff... any tom d*** and harry firm would have done the same. Lodge a complaint to EPF, they are generally very efficient and probably know how to advice you better. I think you have a good chance of... well that's provided you lodge a complaint with EPF.

http://www.kwsp.gov.my/portal/en/employers/faq

» What is meant by service contract?



» What is meant by employee?



It all boils down what you put in your first letter, mind to share the contents?

There's too many moving parts but the devil is in the details i.e. your 1st letter.

Based on your "summarised" version of your letter. Two elements missing when did you serve your notice and what is the amount to be compensated.

A clear example would be say...


With that element missing, did you actually resign? Answer is "No".

Next, to me your letter could be "interpreted" as a mere inquiry. Since you mention "mutual agreement", your resignation is condition upon the management agreeing to your proposal.

Lastly, it was a close call i would say on part of your CEO. Had he signed the letter without giving proper thought as to the content. He would have screwed himself.

Your position now is back to "status quo".

Your resignation must be clear, concise, understandable, legible and unconditional. If you fulfill what I have mentioned, there is NO reason why you boss should reject your resignation letter.

That would depend what you have agreed with your current employer in your employment contract.

Contract Act 1950 is the most often quote provision
28. Agreement in restraint of trade void
Every agreement by which anyone is restrained from exercising a lawful profession, trade, or business of any kind, is to that extent void.

There is some suggestion that reasonable restrictions imposed on an employee maybe acceptable. For instance, you are not allowed to work within 1 KM from your existing employers office. This is of cause fact driven and very subjective as it depends on perception (or in other words who has the better lawyer).

Also consider whether you signed-off any Non-Disclosure Agreement. Even if your employer can't nail you based on restriction of trade, they can still do so because of the special knowledge that you have acquired during your employment. Most common this would be your "customer list".

As far as I know there is no maximum hours that one can work in Malaysia, so if a person decides to work for 24(48,72 etc.. until he dies, whichever is earlier) hours theoretically that is possible.

Since there is no law, then you fall back to what is reasonable and the contents of your contract. There is a couple things you can do…

(a) talk to management about your concerns and see their reaction. Hopefully, they will recognize your efforts and give some concessions.
(b) if talks fail. You may want to write to management instead. If you are “asked” to work OT everyday up until 8-9pm then you might need to establish that such events have in fact transpired and the reasons why management require you to work for such long hours beyond the contracted period.

With a response from management, you “may” be able to take up the matter with labour department. Bear in mind, once you shake the tree, you better be prepared to reap the consequences (or look for a new job [or if you intend to stay on no bonus or increment for you]).

Unlike salary, I believe OT (similar to bonus or increment) or such other OT perks are given at the discretion of the company.

To answer your question… “Maybe” is the best answer, it all depends how much facts you have. If you are in need of a job, I suggest you don’t make it an issue until you find a new job. If otherwise, just leave your current job. Your employer is abusing you.

I give to you straight up. Your still under probation. Yes, you may serve 2 weeks notice.

Next my question. do you need the job and have you found a job? If you have yet to do so, I suggest you find a job before you quit your current job.

Confirmations are generally signed-off for a very good reason, it entitles you to enjoy certain benefit in which a probation staff do not enjoy. It also entails more cost for the company. A one sided confirmation is like… “hey I sent you RM 1,000”, does it mean the money has indeed arrived? The only way to confirm therefore, is for the person to “take additional measures” or to sign-off on a letter that would indicate the appropriate response.

This is a reminder to all probation staff, certain company will take you for a ride. They tell you 6 months probation but at the end of the 6 months, they will just sit quiet until you make noise. Imagine, as a probation staff you lose out on medical, bonus, increment benefits etc…

If a company can’t honor a simple arrangement, I think as an employee you are better off elsewhere.


This post has been edited by aurora97: Sep 9 2014, 02:08 PM

Solution?

If company A is so hell bent on having the person work for another 2 months. Just pay 2 months compensation (1 month from your NewCo and 1 month from your own pocket).

If the company can read, it’s either notice period or payment in lieu of notice.

If the company insist, you say you will refer the matter to labor department. No point arguing with the employer.

If you have physically joined the company. Story might be a bit different.

As you have mentioned that you are due to join them in a few weeks time, that seem to suggest your not physically in that company yet.

Technically you have a binding contract, but because the company did not suffer any lost or commence paying you any salary, they won't be able to claim your salary as compensation. The worse they can do to you is blacklist you.

There is therefore breach but what is the loss suffered to the company? Other than some minor inconvenience.

It would be a courtesy to inform your employer a heads up this is to mitigate the fall out.

lack of details.

normally a probation period would exclude the commitment period. Once you have been confirmed, your one year commitment period will commence.

no reason required. Just state you are resigning based on the terms and conditions of the LO you have signed.

I don't think it's as bad as resigning 24 hours without giving any notice, HR will practically blacklist you from every job site available in Malaysia.

You unfortunately may not be able to work for the same company again...

That's my hunch. Also, i think "exit interviews" are complete rubbish.


Contractually, you have done nothing wrong. You followed the one month termination notice period.

So... if you want to play the game smart, just don't tell you employer the real reason your leaving! This shouldn't create a negative view on your career.

In the end, what is morally/ethically wrong, may not be legally wrong.

it's always better to tender your letter first before you may any subsequent move. Otherwise, they think you not serious.

Unless there are other Clauses in your contract that are not "standard in nature"...

Notice of termination starts from the day you serve your notice. It doesn't matter whether your boss approves of it or otherwise.

yes.

Of course allowed, you pay for the balance remaining notice period.

You should be able to find the words "salary/pay in lieu of notice period".

No need to apologize, it’s a forum where people exchange ideas. If I know all the answers in the world, I probably would not have come to a forum in the first place.

I think the distinguishing factor is when…

(a) the Company ask you to leave; and

(b) you resign yourself and subsequently the Company allow you to go off early.

I did say, most employment contract will say salary in lieu of notice. Since notice has been served, the condition has been fulfilled and therefore it may be construed as though you have resigned on your own accord. This in turn mean, the Company in releasing you early is merely fulfilling your wishes.

That’s why certain people prefer to be “asked to leave” as opposed to tendering. The more famous term is giving one person a rope to hang himself.

If you tender, you will receive no compensation and there will be no adverse impact when you join your prospective employer in the future.