Termination of Employment by Employer
By Sabrina Mahisha Mahboob
In the case named “Haiderr Ali Mollah vs 2nd Labour Court, Dhaka [1990 42 DLR 2000],” the definition of “Termination” is given by highlighting that “it is a recognized method of dispensing with the service of a worker by an employer, after fulfilling certain conditions.” So that, an Employer can terminate his Employees, by following the manner as provided by the Labor Act, 2006. Hereby, these processes of Termination of Workers are discussed under sections 20-31 of the Labor Act, 2006. This process of termination by the Employer can be shadowed under these four grounds:
- Termination by Retrenchment
- Termination by Discharging from service
- Termination of employment by Dismissal
- Termination by employers (other than by dismissal)
All of the above-mentioned sectors are briefly discussed below:
1. Termination by Retrenchment: On the Ground of Redundancy, a worker can be terminated from his service. The procedures provided for such retrenchment are discussed under section 20 of the Labor Act, 2006. Here, the relevant procedures are being discussed in a nutshell:
a) Procedure relating to the notice: If a worker has continuously been serving for (minimum) 1 year, he shall be given proper notice before one month of such retrenchment, containing the reasons behind this decision. On the other hand, if the employer fails to do so, instead of the notice he will pay wages for the period of notice. Apart from this, a copy of the notice has to be sent to the Chief Inspector or any other officer authorized by him. If there is any collective bargaining agent of the establishment, a copy of the said notice must be sent to him.
b) Procedure relating to the compensation: In the time of Retrenchment, the worker shall be entitled to get compensation amounting to thirty days’ wages or gratuity for every completed year of his service. The given amount will be the higher one among the above-mentioned wages and gratuity.
2. Termination by Discharging from service: Section 22 of the Labor Act, 2006 has enlightened this matter. Under this provision, a worker can be discharged for his physical or mental incapacity and this incapacity has to be certified by a registered medical officer.
The procedure of compensation: In this situation, if a worker has continuously been serving the employer for (minimum) 1 year, the worker will be entitled to get compensation amounting to thirty days’ wages or gratuity for every completed year of his service. The given amount will be the higher one among the above-mentioned wages and gratuity.
3. Termination of Employment by dismissal: However, in the Labor Act, 2006, several provisions of proper notice are given, so that natural justice can be ensured. In contrast, section 23 of the said Act, 2006 has mentioned some grounds where a worker can be dismissed without prior notice. These grounds are being mentioned below:
a) If the worker is convicted for any criminal offense
b) If he is found guilty of misconduct. There are some grounds mentioned in section 23(4), among them the notable grounds are:
i) willful disobedience on the part of the worker;
ii) if he is found to commit theft or fraud in relation to the business or property of the Employer;
iii) if he takes a bribe in connection with his employed work;
iv) if he breaches law habitually;
v) if he tempers or causes any loss to the employer’s official records;
vi) if he neglects his duty.
The procedure of Dismissal and Compensation is discussing below:
(a) Procedure of Dismissal: If the person is dismissed for the conviction of criminal law, he will simply be removed from his office. On the other hand, if the worker is dismissed for his misconduct, he will be punished under section- 24 of the said Act. Hereby, in the procedure of punishment, the above-mentioned section demands the enforcement of the core principles of natural justice for the accused worker.
(b) Procedure of Compensation: If the worker is dismissed on the ground of conviction of crime and he has continuously been serving the employer for a minimum of 1 year, the worker will be entitled to get compensation, which amounts to fourteen days wages or gratuity for every completed year of his service. The given amount will be the higher one among the above-mentioned wages and gratuity. On the other hand, the worker who is dismissed on the ground of misconduct shall not be entitled to any such compensation.
Apart from the given list of the said section, some activities are considered as Misconduct by the honorable Court, as like in “Eastern Electronic and Trading Co. vs Baldeb Lal,” 1975 4 SCC 684, the Honorable Court included “Misbehavior with the Customer” as a part of Misconduct. On the other hand, when Employee commits theft of property not belonging to the Employer but to the contractor of him, the Honorable Court does not consider it as misconduct on the part of the Employee under the above-mentioned section [1979 BSCR (AD) 197]. So, which acts will be considered as Misconduct, depend on the facts and circumstances. Hence, it is difficult to make a concrete list of acts regarding Misconduct. Moreover, it is decided by the case “Bank of Credit and Commerce Ltd vs Tajul Islam Chowdhury and others [1993 45 DLR (Ad) 61] that any misconduct that has been condoned by the Master and then permits him to continue his service, the condoned worker cannot subsequently be dismissed on account of the said Misconduct.
4. Termination by Employers (other than by dismissal): Apart from the aforementioned grounds, by section 26 of the said Act, an employer can terminate a monthly rated permanent worker with one hundred and twenty days’ notice whereas, for other workers, such termination can be initiated with a sixty days’ notice. In this termination, the employer has to pay thirty days’ wages or gratuity for his every working year of service whichever is higher. Contrarily, the employer can terminate the temporary worker with thirty days’ notice to the monthly rated worker and fourteen days’ notice for the other workers.
Procedure after Termination
After terminating a worker, the concerned authority has to perform some duties under Labor Act, 2006, these are:
- Final payment of dues of worker
- Certification of service
Final payment of dues of Worker: The terminated worker whose employment is ceased due to retirement, discharge, retrenchment, dismissal, termination, or any other reasons, is entitled to get all due amounts from the Appointing Authority, under section 30 of the said Act. Hereby, the said authority is bound to pay such amounts within a maximum period of 30 (thirty) working days from the day of termination of the employment.
Certification of service: As per section 31 of the Labor Act 2006, an Employer shall provide a Certificate to the terminated worker (who is not the termination of service. casual or substitute worker) at the time of retrenchment, discharge, dismissal, removal, retirement or termination of service. The certificate shall be issued to the Worker for acknowledging the service of the worker.
In this regard, Section 33 of the said Act has empowered a terminated worker to the complaint in respect of the termination. Hence, he can send a written complaint to his Employer by registered post within 30 days of being notified of such cessation. Within 30 days of receiving such Complaint, the Employer shall proceed with an inquiry on the complaint, Thereafter, the employer shall allow the worker to state his side. If the employer fails to give any decision or if the worker is dissatisfied with the decision, he can submit a written complaint to the Labor Court within 30 days of such decision of the Employer. Moreover, the aggrieved party of the said decision can appeal to the Labour Appellate Tribunal against the order of the Labor Court.