EMPLOYEMENT- FAIRNESS OF DISMISSAL

Publishes by The Daily Star on April 28, 2012 (Link Above)

This week Your Advocate is Barrister Omar Khan Joy, Advocate, Supreme Court of Bangladesh. He is the head of the chambers of a renowned law firm, namely, ‘Legal Counsel’, which has expertise mainly in commercial law, corporate law, family law, employment and labor law, land law, banking law, constitutional law, criminal law, IPR and in conducting litigations before courts of different hierarchies. Our civil and criminal law experts from reputed law chambers will provide the legal summary advice.

Query
I work in a company in an entry level position. One day, I went to the office and the in-charge handed over me a dismissal letter! On asking him what I was dismissed for, he verbally said that the letter was given to me because I regularly neglect my work. What should I do now? Have I been properly dismissed? Should I contest the dismissal letter? Is it proper to dismiss an employee suddenly?

Kaniz Fatema.

Response
Thank you very much for your queries. I understand that you are an employee of a company, that has suddenly served you with a letter of dismissal, and the in-charge has orally told you the reason for such dismissal, the reason being that you regularly neglect work. Now you want to know whether you have been properly dismissed and whether you should contest the letter.

According to Section 2(Lxv) of the Bangladesh Labour Act 2006 (“the Act”), worker means ‘any person … employed in any establishment or industry, either directly or through a contractor, to do any skilled, unskilled, manual, technical, trade promotional or clerical work for hire or reward, whether the terms of employment be expressed or implied, but does not include a person employed mainly in a managerial or administrative capacity’. You have mentioned in your query that you are at entry level position, and therefore are most likely to be a worker of the company you are employed in (hereinafter referred to as “your Company”) as opposed to being a non-worker according to this definition. As such your situation will be governed by the Bangladesh Labour Act 2006.

Section 23 of the Act deals with dismissal; it provides that a worker may be dismissed without prior notice or pay in lieu thereof, if he is

(a) Convicted for any criminal offence; OR
(b) Found guilty of misconduct under section 24.

The misconduct that your in-charge orally alleged against you is regular or habitual neglect of work, which does not appear as one of the misconducts given in Section 23(4) of the Act. However, note that the list in section 23(4) is non-exhaustive and each establishment can insert any other conduct that it feels fit to be added to their Service Manual, which is to be duly approved by the Labour authority. The misconducts may vary from establishment to establishment, depending on the type and nature of business. Therefore, if you are to be dismissed based on this particular misconduct, it must be contained in the Service Manual of your Company.

Assuming your Service Manual contains ‘habitual neglect of work’ or ‘regular neglect of work’ or just ‘neglect of work’, your company has to follow a disciplinary procedure to dismiss any worker. Section 24 provides for the procedure for punishment. According to this section, ‘no order of punishment under section 23 shall be made against a worker, unless-

(a) the allegations against him are recorded in writing;
(b) he is given a copy thereof and not less than seven day’s time to explain;
(c) he is given an opportunity of being heard;
(d) he is found guilty, after enquiry;
(e) the employer or the manager approves of such order.

From a legal point of view your company should have commenced the disciplinary procedure before it could serve you with the letter of dismissal. Your company should first serve you a Show Cause Notice, following preliminary inquiry and recording of the allegations against you in writing. The Show Cause Notice would contain the allegations against you and should give you at least seven days’ time to reply. You can either accept or deny the allegations in the reply. If you accept the same, your Company may directly go on to punish you, but if you deny, before ordering punishment it will have to conduct proper enquiry. An Enquiry Committee may be formed to carry out detailed enquiry into the matter, only after which a recommendation of punishment can be given. That punishment can only be ordered if it is approved by the higher authority of your Company, say your employer or manager.

Please be informed that should such disciplinary procedure be commenced against you, you may be suspended pending enquiry as per section 24(2) of the Act.

Please also be informed that one single act or omission done only once may not constitute misconduct, especially when it is minor in nature. Usually habitual or repeated adverse acts or omissions amount to misconduct. Dismissal should practically be given as a punishment only for habitual and adverse acts. Practically, for regular neglect of work, dismissal seems too harsh a punishment. In such a case warnings or other punishments such as suspension without wages, fines, etc seem more appropriate. Even the Act in section 23(2) provides for punishments other than dismissal in less serious cases. But if even after warnings the worker continues with the misconduct, then it will be more justified to dismiss the concerned worker.

Now you are advised to revert back to your employer and challenge the dismissal as Your Company has not at all abided by the legal procedure for doing so. In case they do not agree to review and revise their decision of dismissal you may serve a legal notice in the form of a grievance petition and thereby commence legal action before the labour Court, if you so desire.

It is very unfortunately to note that many organizations in our country are still oppressing their employees in complete disagree to the law. Such a temptation should be strongly resisted. I wish you all the very best in your professional life in the future.

For detailed query contact: omar@legalcounselbd.com.