Termination and dismissal : A comparative discussion
Termination of employment :
There are different types of termination of employment relationship. Not at the initiative of the employer, the employment relationship can be terminated, in particular, by the expiry of a fixed-term contract, the worker’s resignation, or by the completion of the task for which the contract was concluded.
Dismissal :
There are three main types of termination of employment at the initiative of the employer: discharge for incapacity, dismissal for misconduct and retrenchment for redundancy. These statutory rules are applicable to workers who have been continuously employed by the employer for more than one year. An employer is required to justify termination of employment where it falls under the categories of “discharge” or “dismissal”. For termination unrelated to such reasons, that is, mere termination, the employer is only required to give notice and pay compensation.
“Discharge” means the termination of services of a worker for reasons of physical or mental incapacity or continued ill health or similar reasons not amounting to misconduct. “Dismissal” is defined as the termination of services of a worker by the employer for misconduct. The statute outlines several categories of misconduct including willful insubordination or disobedience, theft, fraud or dishonesty, bribery, habitual late attendance, habitual negligence of work, and falsifying or tampering with the employer’s official records.
Workers may also be dismissed for participating in a “go-slow” or illegal strike provided that permission is obtained from the Labor Court. Termination of employment on the grounds of trade union membership or activity is unlawful in Bangladesh.
Bangladesh Labour Act 2006; Section 22- Discharge from service :
(1) A worker may be discharged from service for reasons of physical or mental incapacity or continued ill-health certified by a registered medical practitioner.
(2) If a discharged worker completes not less than one year of continuous service he shall be paid by the employer, as compensation, 30 (thirty) days’ wages for his every year of service, or gratuity, if payable, whichever is higher.
Bangladesh Labour Act 2006; Section 26- Termination of employment of worker by an employer otherwise than by dismissal, etc.
(1) The employment of a permanent worker may be terminated by an employer, otherwise than in the manner provided elsewhere in this Chapter, by giving him a notice in writing, of
(a) 120 (one hundred and twenty) days, if he is a monthly rated worker;
(b) 60 (sixty) days, in case of other workers.
(2) The employment of a temporary worker may be terminated by an employer, otherwise than in the manner provided elsewhere in this Chapter, and if it is not due to the completion, cessation, abolition or discontinuance of the temporary work for which he was appointed, by giving him a notice in writing, of
(a) 30 (thirty) days, if he is a monthly rated worker;
(b) 14 (fourteen) days, in case of other worker.
(3) Where an employer intends to terminate the employment of a worker without any notice, he may do so by paying the worker wages for the period of notice, in lieu of the notice, under sub-section (1) or (2).
(4) Where the employment of a permanent worker is terminated under this section, he shall be paid by the employer compensation at the rate of 30 (thirty) days wages for his every completed year of service or gratuity, if payable, whichever is higher, and this compensation shall be in addition to any other benefit which is payable to such worker under this Act.
Bangladesh Labour Act 2006; Section 27- Termination of employment by workers :
(1) A permanent worker may resign his service by giving the employer 60 (sixty) days notice in writing.
(2) A temporary worker may resign his service by giving the employer a notice, in writing, of
(a) 30 (thirty) days, if he is a monthly rated worker;
(b) 14 (fourteen) days, in case of other workers.
(3) Where a worker intends to resign his service without any notice, he may do so by paying the employer an amount equal to the wages for the period of notice, in lieu of notice under sub-section (1) or (2). 1[(3A) Notwithstanding anything contained in sub-section (3), if a worker remains absent from his work place for more than 10 (ten) days without notice or permission, the employer shall serve him a notice to explain the reason of his absent and join the service within 10 (ten) days and, in such case, if the worker does not submit any written explanation or join the service within the stipulated time, the employer shall give him further 7 (seven) days time to defend himself, and thereupon if the worker does not join the service or defend himself, he shall be deemed to have been released from service on and from the date of such absence.
(4) Where a permanent worker resigns his service under this section, he shall be paid by the employer compensation,
(a) at the rate of 14 (fourteen) days’ wages for his every completed year of service, if he completes 5 (five) years of continuous service or more but less than 10 (ten) years under the employer;
(b) at the rate of 30 (thirty) days’ wages for every completed year of service if he completes 10 (ten) years of continuous service or more under the employer; or gratuity, if payable, whichever is higher, and this compensation shall be in addition to any other benefit payable to such worker under this Act.
© 2017 NANZINA AFRIN LLM, Northumbria University (LAWYER IN BANGLADESH) ALL RIGHTS RESERVED
Author
Barrister Md SANWAR HOSSAIN
Advocate, Supreme Court of Bangladesh
Head of Chambers
S Hossain & Associates Law Office
A law firm in Bangladesh.
