EMPLOYMENT: RESIGNATION AND DISMISSAL

Publishes by The Daily Star on January 13, 2015 (Link Here)

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.

Query

I worked for one of the reputed companies of Bangladesh for 6 years. Due to some personal difficulties, I decided to resign from my post and so did I, by handing over my resignation last month as per my employment agreement. As per the company’s policy, I should have been paid out my separation entitlements within 15 days of my separation. However, I was sent an email by the manager of the company, whereby, he mentioned in the email that my resignation has not been accepted. In the email it has also been mentioned that the company has lost substantial monetary loss and they are holding me responsible for such, which is not true. They have rather attached a letter on to the mail saying that I have been dismissed and my entitlements have been squared off with the monetary loss of the company.
Please advice as to whether the company can do these things to me.
Anonymous.

Response
Thank you for soliciting my advice. The governing law in relation to all employment issues in private sector is the Bangladesh Labour Act 2006 as amended from time to time (hereinafter referred to as the BLA). However, it shall be clarified at the outset that the provisions of the BLA hereinafter detailed, are applicable to employees considered to be ‘workers’ in an establishment. Section 2(lxv) of the Act provides the definition of worker, which means any person employed in any establishment or industry but does not include a person employed mainly in managerial, supervisory or administrative capacity.

In other terms, as per the BLA, any employee having managerial, supervisory or administrative capacity in an establishment shall be considered to be a non-worker and all other employees having responsibilities other than the aforesaid shall be regarded as workers.

When the governing law for workers is BLA, please note that in case of non-workers the terms and conditions prescribed in the employment agreement and the internal policies or manual, if any, would apply as the binding law as there is no statutory provisions governing the employment of non-workers. However, the companies may adopt a policy, which applies for all types of employees and which is also in compliance with the BLA.
Your query does not give a clear picture as to your nature of service and your job description. However, I base my advice as to your query assuming that BLA applies in your case.

You mentioned that you have resigned from your post as per the term in your employment agreement. As per law, your employment agreement was terminated when you have resigned from your post and it shall be borne in mind that resignation is not subject to any approval from the employer. You have formally and legally separated yourself on the day the resignation has been served with the effective date as mentioned. Acceptance of resignation is a mere formality. The employer can only reject/withheld resignation when there is a pending disciplinary action against the employee.

Therefore, under the eyes of law your claim for separation pay is completely legal. The company cannot withheld your severance pay because according to section 27 of the Act where a worker, who has served the establishment for 5 continuous years, resigns from his service such shall be paid compensation by the employer,
(i) if five years or more of continuous service but less than ten years – at a rate of fourteen days’ wages for completed year of service, or (ii) if ten years or more of continuous service – at a rate of 30 days’ wages for every completed year of service or gratuity, if any, whichever is higher, in addition to any other benefit to which he may be entitled under this Act: otherwise would be in breach of the law. You are entitled to your final pay settlement within a month of separation.

Although you did not provide us any information as to your job or as to what sort of monetary losses the company has suffered etc., assuming your contentions as to such are true, the company also cannot simply square up their financial losses against your entitlements.

Further, the alleged dismissal of you from your service can also be questioned as illegal because to dismiss an employee from his service an employer shall carry out the procedure prescribed under the law. The dismissal procedure has been described under S.23 of BLA, whereby it has been stated that a worker may be dismissed without prior notice or pay in lieu, if he is – (a) convicted for any criminal offence, or (b) he is found guilty of ‘misconduct’ following the statutorily prescribed disciplinary action.

From your given facts it appears that the procedure of dismissal has not at all being followed and you have known about the process only when you were served with the sanction of dismissal. The dismissal order can, therefore, be questioned as illegal and it is very likely that such order would not hold any substantial ground when challenged.

I would advise you to try and resolve the matter amicably with your former employer and then pursue for legal course of action, if be required. You may first serve a letter as soon as possible and then a legal notice before actually starting any litigation. I hope the aforementioned information and advice answers your queries.

For detailed query contact: omar@legalcounselbd.com