We will terminate to one of our employee during his probation period because of Poor performance. We have made him sign NDA & Non-compete from him.Can any one help me how can i mentioned NDA & Non-compete clause in his termination letter. Thanks, Pradnya
From India, Pune
1From India, Pune
Pradnya,
If you have already signed NDA and NCA from the said employee earlier, then it is not required to mention it again in the termination letter. You can verbally remind him about the same.
Let me know if any other concern you have regarding the subject.
From India, Pune
If you have already signed NDA and NCA from the said employee earlier, then it is not required to mention it again in the termination letter. You can verbally remind him about the same.
Let me know if any other concern you have regarding the subject.
From India, Pune
Pradnya,
I don't see reason to mention NDA/NCA in his termination/relieving letter at all. In fact, since the non-compete component is actually bad in law, you should resist the temptation to sign it in the first place.
Let's face it - it is highly possible that you may have hired wrong and that is a reflection on your selection process. Why do you want to harm a young person's career for that mistake?
All the best.
From India, Mumbai
I don't see reason to mention NDA/NCA in his termination/relieving letter at all. In fact, since the non-compete component is actually bad in law, you should resist the temptation to sign it in the first place.
Let's face it - it is highly possible that you may have hired wrong and that is a reflection on your selection process. Why do you want to harm a young person's career for that mistake?
All the best.
From India, Mumbai
Pradnya,
Haven't an appointment letter issued to this employee? OR are you planning to re-issue him one? If you want to include about NDA/NCA in the appointment letter then a normal clause given below can be added,
Non-Disclosure/Non-Compete: You will not disclose by word of mouth or otherwise, particulars or details of business plans /trade /secret /finance /know how and or any confidential information of business coming to your knowledge by virtue of your being in the employment of XXXXXXXX India Pvt. Ltd. Conditions of Non-Complete will be explained and specified in detail in the Non-Disclosure & Non-Compete agreements, which will be given to you for signature on the date of joining.
From India, Bangalore
Haven't an appointment letter issued to this employee? OR are you planning to re-issue him one? If you want to include about NDA/NCA in the appointment letter then a normal clause given below can be added,
Non-Disclosure/Non-Compete: You will not disclose by word of mouth or otherwise, particulars or details of business plans /trade /secret /finance /know how and or any confidential information of business coming to your knowledge by virtue of your being in the employment of XXXXXXXX India Pvt. Ltd. Conditions of Non-Complete will be explained and specified in detail in the Non-Disclosure & Non-Compete agreements, which will be given to you for signature on the date of joining.
From India, Bangalore
How will NDA/Non Compete matters after termination. Do you think if at all you mention it in your termination letter will that effect the employee. Again what if the employee joins a competitor and disclose, what harm can you do legally to the employee, since he is no more working with you and he/she has been terminated from the job itself during probation.
From India, Ahmadabad
From India, Ahmadabad
Dear Pradanya,
Are you looking forward to issue him an experience certificate and relieving letter ? How are you planning to issue this termination letter to him ? Even if your employee is terminated, please don't issue any reliving document sharing the termination of services.
Let the discontinuity of the services, remain an internal process. Issue a normal relieving letter with his employment details.
If you avoid mentioning any details about the termination, you help him build a career beyond your firm.
No matter whatever, the reason for termination is, a misfit somewhere is an hi-performer somewhere else. Performance of an employee is often a result of the environmental support he receives. Hence, putting non-performance as a reason for termination in the letter, might back fire on you as an employer.
Please keep this in mind, while processing the document. Wish you all the best !
From India, Mumbai
Are you looking forward to issue him an experience certificate and relieving letter ? How are you planning to issue this termination letter to him ? Even if your employee is terminated, please don't issue any reliving document sharing the termination of services.
Let the discontinuity of the services, remain an internal process. Issue a normal relieving letter with his employment details.
If you avoid mentioning any details about the termination, you help him build a career beyond your firm.
No matter whatever, the reason for termination is, a misfit somewhere is an hi-performer somewhere else. Performance of an employee is often a result of the environmental support he receives. Hence, putting non-performance as a reason for termination in the letter, might back fire on you as an employer.
Please keep this in mind, while processing the document. Wish you all the best !
From India, Mumbai
Agree 100%!
I wonder if the original poster is following this post at all. We haven't seen any response or acknowledgement yet.
However, for all HR professionals on this forum, I think we have a good learning case of exactly what not to do while terminating an employee. Companies conveniently forget their much vaunted recruitment process the moment something goes wrong. Wrong hirings will happen, however stringent the recruitment process may be. It is important and prudent to cut your losses and let that person go ASAP; but it is also important to remain humble to the larger cause and not become vindictive and try to strangle/stifle the soon to be ex-employee.
Except for the case where there has been a willful fraud, cheating or any grossly immoral/illegal activity - there is no point in trying to ruin someone's career. Words spread fast these days, and before you know it people will start talking about your company in unforgiving terms and then you will have a very hard time recruiting anyone good.
My comments above are not specific to this case but are generic in nature. Have been in a company that actually took the pain of visiting a very junior guy's next employer in person and share a load of nonsense. Fortunately, the guys at the other company were mature enough to disregard the unwanted advice, and this guy is now with a Fortune 100 company doing brilliant work; and the former employee is trying to become a vendor!
From India, Mumbai
I wonder if the original poster is following this post at all. We haven't seen any response or acknowledgement yet.
However, for all HR professionals on this forum, I think we have a good learning case of exactly what not to do while terminating an employee. Companies conveniently forget their much vaunted recruitment process the moment something goes wrong. Wrong hirings will happen, however stringent the recruitment process may be. It is important and prudent to cut your losses and let that person go ASAP; but it is also important to remain humble to the larger cause and not become vindictive and try to strangle/stifle the soon to be ex-employee.
Except for the case where there has been a willful fraud, cheating or any grossly immoral/illegal activity - there is no point in trying to ruin someone's career. Words spread fast these days, and before you know it people will start talking about your company in unforgiving terms and then you will have a very hard time recruiting anyone good.
My comments above are not specific to this case but are generic in nature. Have been in a company that actually took the pain of visiting a very junior guy's next employer in person and share a load of nonsense. Fortunately, the guys at the other company were mature enough to disregard the unwanted advice, and this guy is now with a Fortune 100 company doing brilliant work; and the former employee is trying to become a vendor!
From India, Mumbai
The NDA and NCA clause is legally valid only during the period the employee is in your service. Varghese Mathew
From India, Thiruvananthapuram
From India, Thiruvananthapuram
Now-a-days, it is becoming a popular practice by established companies to insert a negative covenant clause in their service agreement. Such clauses generally mean to restrain the outgoing employees of a company for a certain period from joining other company or practice similar trade themselves or jointly with others.
The Indian law does not recognize such restrictive agreements. As per Section 27 of the Indian Contract Act, 1872, such contracts to that extent are void and against public policy. No employee can be prevented from pursuing similar work if he/she quits the present one, merely on the pretext that it will be detrimental to the previous employer.
Gujarat High Court in this context, in the case of Sandhya Organic Chemicals v. United Phosphorous held that, an employee cannot be prevented from utilizing the knowledge and experience that he has gained while being in employment.
Though, such post termination restraint agreements are void, confidentiality and non-disclosure agreements are valid and effective but during the period when the employee is in the organisation.
The Supreme Court in Superintendence Co. of India v. KrishunMurgai. AIR 1980 SC 1717 has ruled that under Section 27 of the Contract Act. a service covenant extended beyond the termination of the service is void
Madhu.T.K
From India, Kannur
The Indian law does not recognize such restrictive agreements. As per Section 27 of the Indian Contract Act, 1872, such contracts to that extent are void and against public policy. No employee can be prevented from pursuing similar work if he/she quits the present one, merely on the pretext that it will be detrimental to the previous employer.
Gujarat High Court in this context, in the case of Sandhya Organic Chemicals v. United Phosphorous held that, an employee cannot be prevented from utilizing the knowledge and experience that he has gained while being in employment.
Though, such post termination restraint agreements are void, confidentiality and non-disclosure agreements are valid and effective but during the period when the employee is in the organisation.
The Supreme Court in Superintendence Co. of India v. KrishunMurgai. AIR 1980 SC 1717 has ruled that under Section 27 of the Contract Act. a service covenant extended beyond the termination of the service is void
Madhu.T.K
From India, Kannur
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