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http://www.assignmentpoint.com/arts/law/role-of-labor-and-industrial-law-in-

bangladesh.html

ABSTRACT

Role of labour and industrial laws are of paramount importance. We know that the total economy

of a country greatly depends upon the industrial sector. In addition, the growth of the industrial

sector involves with some major aspect. These major aspects are the local investment policy,

foreign direct investment policy, labour management etc. Besides the necessary infrastructure for

investment natural resources are also important and it is very clear that if all these essential

elements are not available then growth of industrial sector is unfeasible. Besides all these things

labour issues are also very important. roper management of labour is an essential matter for

growth of industrial sector. Timely disposal of labour disputes are also important. We see that in

most of the cases the labour law disputes do not solve with in short time. !o the remedy which is

essential from the case becomes delayed. The labour law is very much important in Bangladesh

perspective. It is highly important for the industrial development of Bangladesh. We know that

labour is a most important part of an industry. !o, we can not think an industry with out labour.

"abour right is most essential in Bangladesh. But the labours are in ignorance about their right.

They don#t know properly about labour laws and education. It is a great problem. $or this reason,

they retrenched by the employee. %ery often, they retrenched with out any legal process. !o I

don#t support the retrenchment of the labour by any illegal process. The retrenchment of labour

should be legal and humanly treated. In chapter five I discussed about "abour &ourt and "abour

'ppellate Tribunal in Bangladesh including application to the "abour court, (urisdiction of the

labour court, ower and status of the labour court in trying offences, a labour court is a civil court

and ower and functions of the labour court and the tribunal. "astly in chapter si) I tried to

discuss about my conclusion on the thesis like $indings, Recommendations, and !cope for

$urther !tudy which are my opinion. In this way I tried to organi*e my thesis.

(1.1) Introduction

Barriers to timely resolution of labour disputes involve two types of issues+ one is the legal barrier

and the other is the practical one. To deal with the first one, we begin by outlining the origin of

"abour &ourts, its constitution, composition, powers and procedures, including the "abour

'ppellate Tribunal, as the machinery for disposal of various types of labour cause. This outline is

then followed by a short account for the territorial and other jurisdictional aspects of "abour

&ourt. The ne)t, third, section offers a detailed e)pose of the barriers, along with suggestion for

facilitating timely disposal of labour cases, ending with a concluding section. This thesis includes

numerical representations of the state of labour case under various relevant laws.

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(1.2)The Objectives of Study

The object of both the law is to establish a continuous process of harmonious relationship

between the employers and employee. They have another object of fastening together both the

labour and capital in order to create an atmosphere that they are an indivisible whole in

production. The ultimate object of labour and industrial law is to maintain industrial peace security

and steady growth of production.

The origin and growth of labour law may be ascribed mostly to the development of organi*ed

industry where a large number of workers including women and children are employed under

conditions which tend to be detrimental to their safety and welfare and against which they are

often to protect themselves.

$rom historical point of view labour law has given birth to some fundamental industrial rights to

labours in the field of production. 't the same time it has also provided protection for those rights.

$rom a practical point of view labour and industrial law provide for three types of dispute

settlement measures voluntary settlement machinery, uasi judicial machinery and judicial

machinery.

(1.3) I!ort"nce of the Study

"abour and industrial legislation is necessary for the following reasons-

The individual workers are economically weak. They cannot bargain with the employees for the

protection of their rights and even for subsistence wages. 's such legislation for protection of

labour against long hours of work unhygienic conditions of work low wages and e)ploitation is

needed. The workers are e)posed to certain risks in factories mines and other establishment. 's

such in order to make provisions for their health safety and welfare legislation is needed. In order

to increases the burning power of labour legislation is necessary to encourage the formation of

trade unions.

(1.#) Sco!e "nd $iit"tion of Study

The discussion of this dissertation will be limited within the scope of the rigin and historical

development of "abour law of Bangladesh, the roblems of "abour law of Bangladesh, problems

of "abour education in Bangladesh and some case studies. The system of enrolment in the Bar

&ouncil also discussed. There will be discussed about some nature of crimes committed usually.

(1.%) &ethodo'oy of Study

The methodology used in the thesis is /ualitative 0ethodology. ur research works are based on

1. 2istorical !tudy and 3. 'nalytical !tudy.

1. 2istorical !tudy- It has a historical back ground of worker#s movement for the establishment of

their rights. The worker#s movement becomes successful. 4ow the modern world, 0odern state

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and 5nited 4ations rgani*ation highlighted the worker in their dignity, honor, position,

participation social work political activity etc.

In Bangladesh the worker#s retrenchment are guaranteed in their constitution, state laws, and

social and state activities. Through the historical revolution the worker#s right has come to this

position. The history worker#s movement started from 1671 after successful victory of the

Bangladesh war of Independence. !o, to write this thesis we have to use historical study.

3. 'nalytical !tudy- In this thesis the formation development and solutions regarding worker#s

right and retrenchment are to be discussed. In this process of analysis the laws related to the

subject and solutions from the judicial process are to be discussed. The enforcement of worker#s

right is judicial matter. !o in this process of study the analytical study is necessary and important

for this thesis. $or our research works we followed the analytical study.

The main object of the study is to evaluate effects and importance on persons, society and the

state. The study is mainly ualitative in nature because, the impact that the study has searched

would not be possible to assess without ualitative data. "egal issues, judicial rulings and

administrative management of the government and the public, all are related with the issues. The

research work is involved with the legal matter, administrative matter and judicial decision of the

worker#s retrenchment. 5nder these circumstances a regulated research work will be suitable to

solve the problems after investigating different variables such as laws relating to 8' !tudy on

Worker#s Retrenchment under "abour "aw- Bangladesh erspective9.

4ormally researchers depend on different methodological approaches. Research method is an

important factor for all kinds of study. There are two kinds of empirical research methods namely.

1. /ualitative Research 0ethod and 3./uantitative Research method.

Research on 8' study on worker#s retrenchment of Bangladesh9 a new admiration has emerged

among the judicial persons, educators, sociologists, psychologists and public interest, lawyers,

politicians, scientists and many others. eaceful, legal, moral, ethical happy life in the society is

the vital issue for the man kind. !o considering all the above factors this research works utili*es

the following methodologies :

&ase study method,

(udicial method,

;round theory method.

!ociological 0ethod,

!tatistical 0ethod.

0ethod 5sed in this thesis-

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The method is used in this dissertation is action oriented. The study has been conducted on the

basis of two principal sources of data collection. These are- 1. rimary !ource, 3. !econdary

source.

The basic data has been collected from the administrative source, legislative laws and historical

events. ther data has been collected from judicial rulings and affected person#s information. By

focusing efforts on critical issues of authority concern, and the victim persons concern are the

important sources of data collection.

(1.) Or"ni*"tion of Thesis

"abour "aw is very importance in Bangladesh perspective. "abour law of Bangladesh is

developed by origin and historically. There are many problem of labour law of Bangladesh,

problems also labour education in Bangladesh and some cases studies. I try organi*ed this

thesis and mentioned that condition for a valid retrenchment of labour. I include procedure of

retrenchment of Bangladesh and retrenchment compensation with studies. I also try includes

"abour court and "abour appellate tribunal.

In the first chapter I tried to include Introduction, bjectives of the study, Importance of !tudy,

!cope and "imitation of !tudy, 0ethodology of study and rgani*ation of Thesis. It is the

introductory chapter of the thesis.

In the second chapter I tried to discuss about "abour laws in Bangladesh like

2olidays, !ocial !ecurity and "abour 5nion for the better improvement of industrial sector of

Bangladesh.

In the third &hapter I tried to discuss about retrenchments including &onditions for a valid

Retrenchment, rocedure of retrenchment, Retrenchment compensation, Re?employment of

retrenched workers, &ondition of re?employment for retrenchment workers and =istinction

between lay?off and retrenchment.

In the fourth chapter I discussed about 1@ cases like 0A! &alte) oil akistanC "td. vs. The

chairman second labour &ourt, 'minul Islam vs. (ames $inlay &o."td, Bangladesh tea estate ltd

vs. Bangladesh tea estate staff union, Banks > 'nother vs. &oca?&ola !', osthui*en vs.

Telkom !' "td., erumal > another vs. Tiger Brands, Dero 'ppliances tyC "td vs. &&0' >

thers, "eppan and !uretrade 11@ && tAa Bra Boutiue, Retrenchment- breakdown of trust

relationship1E?0'F?@G Dietsman > others vs. Transnet "imited, Thekiso vs. IB0 !outh 'frica

tyC "td HRedundancy >

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Bangladesh offers an abundant supply of disciplined, easily trainable and low?cost work force

suitable for any labor?intensive industry. f late, there is an increasing supply of professionals,

technologists and other middle and low level skilled workers. They receive technical training from

universities, college, technical training centers, polytechnic institutions etc. The e)penditure

incurred by an employer to train his employee is e)empted from income ta).

(2.1). -!'oyent Conditions

The minimum age for workers in Bangladesh is 1 years in factories and establishments.

&ontracts are made in the form of a letter of offer. Workers may also be engaged on verbal

agreements. In government organi*ations and in some private organi*ations as well, a probation

period e)ists for skilled or semi?skilled workers varying between three month#s to one year and

during this period either party may serve one month#s notice for Termination from or giving up to

the job. In the private sector, the dignity of labor is ensured in accordance with the principles

enunciated in the I" convention and recommendations.

(2.2). $"bour $"+s

In Bangladesh E7 labour laws are now in operation. These relate to aC wages and employment,

bC trade union > industrial disputes, cC working environment and dC labour administration and

related matters. The main labor laws are-

Workmen#s &ompensation 'ct, 163J,

ayment of Wages 'ct, 16J

0aternity Benefit 'ct, 16J

water supply etc. bC hospital > ambulance

service, cC fire brigade, dC railway > Bangladesh Biman and eC ports etc., strike is prohibited.H3L

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(2.#). /"es "nd 0rine Benefits

In the public sector, wages and fringe benefits of the workers are determined by the government

on the recommendation of the 4ational Wages &ommission established from time to time. !uch

commissions were appointed in 167J, 1677, 16GE, 16G6 > 1663. Wages > fringe benefits

declared by the government in 1677 having 3@ grades of wages. The public sector employees

are, however, covered by the ay &ommission declared by the government from time to time.

In the private sector, the wages > fringes benefits of the workers and employees are determined

through collective bargaining process. !ometimes private industries follow the public sector

wages > salary structure for their workers and employees respectively.

(2.%). $e"ve o'id"ys

"eave > holidays of the workers > employees are regulated by the $actories 'ct, 16K and

shops

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!ection 311C define the term retrenchment as the termination by the employer of service of

workers not as a measure of punishment inflict by way of discipline action but on the ground of

redundancy. 8Retrenchment9 means the termination by the employer of the services of workers

on the ground of redundancy Nsec. 3CO. Thus retrenchment measure to remove surplus staff it

results in a complete severance of employer relationship. The definition also makes it clear that

retrenchment is a kind of termination but every termination is not retrenchment. To be

retrenchment the termination must be on the ground of sedentary. 1

(3.2) Conditions for " v"'id Retrenchent

'ccording to section 3@ read with section 311C the conditions of a valid retrenchment are as

follows-

The workers to be retrenchment must be given one month#s notice+

The notice must be given in writing+

the notice must be contain reasons for retrenchment+

alternative to condition 3C above, instead of giving one months, a worker may be retrenched

instantly by giving him payment of wages for the period of notice+

a copy of the notice of retrenchment must be send to the chief inspector+

a copy of the notice must be send to the &B'+

there must be termination of services of a workman on the ground of redundancy or surplus

labour+

1. 0d. 'bdul 2alim, The Bangladesh "abour &ode, 3@@,&&B $oundation,

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5nder clause cC of section 3@3C payment of compensation for retrenchment is mandatory. The

provisions of compensation for retrenchment are as follows-

1C 't the time of retrenchment the worker must be paid compensation euivalent to thirty day#s

wages for every completed year of service or for any part thereof in e)cess of si) month#s or

gratuity, if any, whichever is higher,

3C To claim compensation for retrenchment the worker must show that he has been in

continuous service for not less than one year under that employer who has retrenched him+

JC If a worker who is to be laid?off even after first EK days in a calendar year under section 17C,

is retrenchment instead of laying?off, no notice will be reuired. 2owever, he shall be paid 1K

day#s wages in addition to the compensation or gratuity which may be payable+

EC Wages as compensation for retrenchment will mean the average of the basic wages plus

dearness allowances, if any, paid during the period of twelve months immediately preceding the

date of retrenchment.

1. 0d. 'bdul 2alim, The Bangladesh "abour &ode, 3@@,&&B $oundation,

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JC Workers will have priority according to the length of his service under the employer+

J.7C =istinction between lay?off and retrenchment

1C In case of lay?off there is failure, refusal or inability of the employer to give employment to a

workman for a temporary period while in retrenchment the workman is deprived of his

employment permanently by his employer.

3C The grounds of lay?off are 0ay. In lay?off the failure refusal or inability to give employment is

on account of one or more of the reasons specified in section 3KGC such as shortage of coal

shortage of power, raw materials, break down of machinery etc. while in retrenchment the

termination of service is on the ground of surplus labour only. Thus the ground of retrenchment

and lay?off are completely different.

JC The reasons of lay?off are completely different as compared to reasons of retrenchment. The

situation of surplus labour may arise due to economic drive, rationalisation in the industry

installation of new labour saving machinery etc. But in lay?off reasons of non?employment are

mainly non?availability of power raw materials, coal or break down of machinery etc.

EC In lay?off labour force is not surplus but in retrenchment labour force is surplus which is to be

retrenched.

KC In lay?off employment relationship of employer and employer and employers is not terminated

but suspended while in retrenchment relationship is terminated.1

E.1C 0A! &alte) oil akistanC "td. %s. The chairman

!econd labour court 167C 16 ="R 3E 1

(udge- !.= 'hmed and 'bdul 2akim Qhan

2eard on- Jrd, th, 7th 0arch 167

(udgment date- 6th 0arch 167

=r. $.Q.0.' 0uslim .. etitionerC

%s.

0.0 ;olam 2afi* RespondandentC

Issue-

Whether to effect retrenchment condition of the section must be fulfilled or not

$act-

In the present, case service of the employees have not been terminated in the manner provided

in section 13Cof the 'ct. The termination of the service on the ground of retrenchment in terms of

section 13 can only take place when all the condition mentioned there under have been complied

with and not before.

1. 0A! &alte) oil akistanC "td. %s. The chairman second labour court 167C 16 ="R 3E

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In the present case it is obvious that one of the condition, namely, dispatching the notice in

respect of the retrenchment to the chief inspector was not complied with. The "abour court was,

therefore justified and acted uite within its jurisdiction in holding that the termination of the

service of the respondents concerned was under section 16 of the 'ct and not under section 13

and claimed by the petitioner. The essential of a termination on the ground of retrenchment as

prescribed under section 13 are aC the worker must be given one month notice is writing

indicating the reason for retrenchment or he has been paid in lieu of such notice in respect of

retrenchment in sent to the chief inspector andcC the worker has been paid at the time of

retrenchment compensation or gratuity which ever is higher as reuired under clause cC of the

section 13 .

If notice in the chief inspector has not been served in terms of diction 13, the retrenchment of the

employee by the employer is not is according with law.

(udgment-

$or the purpose of calculation of the compensation under the section, wages shall mean the

verge of the basic wages plus dearness allowance. If any paid to the worker during period the

date of retrenchment. $or the reasons stated above, we don#t think that the impugned order

passed by the labour court suffers from any illegality. We accordingly discharge the rule in each

one of the two petitioners without any order as to costs. (udge 'bdul 2akim Qhan also agrees

with.

(#.2) Ainu' Is'" 7s 8"es 0in'"y Co.

"td 3="R !&C JJ 1

$act-

0r.'minul Islam was a head &lerk?cum 'ccountant under (ames $inally &ompany "td at Qhulna.

2is service was terminated allowing him wages in lieu of 6@ days notice. The company preferred

to pay his wages for that period in addition to compensation at the rate of 1E days wages for

every completed year or part thereof in e)cess of si) months. It was asserted that the termination

was for trade union activities of the workers and that it was case of victimi*ation. The labour court

upheld the contention of the worker. n the appeal before the high court no opinion was

e)pressed on merits as the case was remanded to the labour court since the opinion of a

member was not obtained. n farther appeal to the 'ppellate division, it was held on fact that the

worker#s service was terminated without any stigma or charge and it was a termination

simplicater.

(udgment-

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It has been contended that the service of 'minul Islam ware terminated due to his trade union

activities and as such it was act of victimi*ation and the termination

1. 'minul Islam %s (ames $inlay &o. "td 3="R !&C JJ

virtually amounted to dismissal under the cloak of the tram Ptermination #. But his contention does

not hold good as on e)amination of the impugned order it has been found that the termination

simpliciter under section 16 and as such he was no longer a worker within the meaning of the

'ct.

E.JCBangladesh tea estate ltd v Bangladesh tea estate staff union

167C3G="R '=C 16@ 1

$acts-

ne 0r. 4urul 'bser &howdhury was appointed as a clerk by the Bangladesh tea

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1. Bangladesh tea estate ltd v Bangladesh tea estate staff union 167C3G="R '=C 16@

There is however an e)ception to the rule that court not to go behind the order of a service of the

termination to see if it really was victimi*ation. This e)ception is contained in section 16, itself

when read with section 3K. it says that if purported termination is in reality victimi*ation of an

officer of a registered trade union for his trade union activities the court can go behind the order

to see the real purpose of termination and grant such relief as it thinks fit. The two propositions

should be read together in order to arrive at the true import of section 16 of the standing orders

act.

"abour dispute is broad enough to include a dispute of a terminated worker under section 16 of

the standing act 16K if the dispute centres round the victimi*ation of the worker for his trade

union activates. It is to be remembering that section 3K of the standing orders act has clearly

provided that an individual worker can claim relief before the labour court under the said act

unless the grievance ha was raised as labour dispute under labour dispute act IRC. Through

section 3K bars all complaints against the order of termination under section 16 of the said act yet

it authori*ed the worker to claim relief if the termination is of an officer of the registered trade

union for his trade union activities or the worker is deprived of his benefits under section 16. The

two acts are pair material and the provision in section 3K indicates that if the termination of a

worker is for his trade union actives and if he is an officer of a registered trade union his code

may be raised as an industrial dispute.

(#.#)B"n6s Another v Coc"9Co'" SA 1

&ase 4o. ( 111E A @7

'ward =ate 36 (une 3@@7

(urisdiction "abour &ourt (ohannesburg

(udge ' %an 4iekerk '(

!ubject- procedural fairness in Retrenchment.

Issue-

'n application to interdict the employer from implementing a dismissal based on operational

reuirements on the grounds of procedural fairness. There was a delay in the launch of the

proceedings and disagreement on what the appropriate remedies were. There was also a

material dispute of fact. The matter was referred to trial for the hearing of oral evidence.

1. Banks > 'nother v &oca?&ola !'

!ummary of facts-

The two applicants, both senior e)ecutives were dismissed due to operational reuirements after

the process of consultation had broken down. Two and a half months later they approached the

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"abour &ourt for relief in terms of !ection 1G6' 1JC and sought compensation in the event that

the court found that their dismissal had been procedurally unfair.

The allegations of the process being a 8shambles9 was denied by the Respondent &ompany and

the disputes were therefore factual and material to the issue.

The notice of termination was due to take place on the J@ (une 3@@7 and therefore the urgency

of the matter being heard to interdict the employer from dismissing the applicants and directing

the respondent to commence the consultation process afresh as reuired by !ection 1G6 of the

'ct.

The facts as alleged by the applicants on the consultation process used by the Respondent were

very comprehensive and the basis of the claim was that the respondent failed to engage in any

meaningful individual consultations about a structure that could save their jobs and that the

consultation process was 8nothing less than a shambles, that vague and subjective selection

criteria were applied, that the respondent made a decision on restructuring and sought to consult

thereafter and that it failed to make a proper severance proposal9.

The respondent alleged that the applicants# referral was opportunistic and that the applicants are

seeking to do no more than secure themselves reinstatement for the purposes of negotiating a

more generous severance package.

!ummary of (udgment-

Three considerations were apparent.

The first was a material dispute of fact, the second was the time passed since the breakdown of

consultations and the launching of the application and the third is the acrimonious relationship

between the parties, best described as a hostile stand?off, in so far as is relevant to the remedy

sought by the applicants.

It was held that no purpose would be served by reuiring the respondent and applicants to go

back to suare one in the process and it was held that !ection 1G6' would not serve its purpose

if the court would grant an interdict against dismissal and issue directions on how the parties

should conduct themselves in a resurrected consultation process.

The court did not make a finding on the papers before court as to whether either party had

discharged their obligations in terms of !ection 1G6 and held that the inevitability of a future

referral to the court on the substantive fairness of the dismissal, that the procedural and

substantive aspects of the dispute are dealt with simultaneously in a trial action.

The order granted by the court was therefore-

1. The application in terms of section 1G6' 1JC was referred to the trial roll for hearing of oral

evidence.

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3. The application in terms of section 1G6' 1JC to be enrolled simultaneously with any action that

the applicants may institute in relation to the substantive fairness of the dismissal. !hould the

applicants not institute this action then the application made in terms of section 1G6' 1JC should

be enrolled on the trial role.

E.KC osthui*en v Telkom !' "td 1

&ase 4o. ' K A @E

(udgment =ate 36 (une 3@@7

(urisdiction "abour 'ppeal &ourt, (ohannesburg

(udge Dondo (, Qruger '('

!ubject- =ismissals based on perational Reuirements !ubstantive $airness in Retrenchment.

Issue-

Whether the respondent employer ought to have redeployed the appellant, rather than make

retrench him, and whether the selection criteria that did not include length of service were fair in

the circumstances.

!ummary of $acts-

The appellant had been retrenched by the respondent. 2e lodged a claim in the &ourt that

partially rested on the fact that the respondent had not negotiated with him personally but with a

union that was representative at the workplace. The &ourt dismissed the applicant#s claim.

The appellant appealed to the "'& on the basis that 1C the respondent ought to have avoided

the redundancy by redeploying to one of the positions that he applied for and 3C on the basis that

the respondent#s selection criteria was unfair.

1. osthui*en v Telkom !' "td

!ummary of (udgment-

n the issue of redeployment, the &ourt noted that the appellant had applied for 3 positions,

some of which he was short listed for. The respondent led no evidence at to why he was not

appointed to those positions and the &ourt found that it had failed to justify the dismissal of the

appellant. Interestingly, the &ourt found that if the appellant reuired training to be suitable for an

alternative position, that the respondent must arrange such training as part of its obligations to

look for alternatives to redundancy.

n the issue of the selection criteria, the respondent#s evidence was that skills, suitability and

employment euity policy were the criteria adopted. The respondent did not take into account

length of service, which was a significant issue given the appellant had been employed for J@

years with the respondent. The &ourt did not making any findings on this point, having already

ruled that the dismissal was substantively unfair because the appellant could have been

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redeployed. The "'& did appear to find that the length of service was also relevant to the

obligation to redeploy.

The "'& ordered that the appellant be reinstated. It also made specific orders about the need for

a fair reasons and procedures to be adopted should the respondent maintain that it has a surplus

because of the reinstatement. &osts were awarded against the respondent.

(#.) :eru"' "nother v Tier Br"nds

&ase 4o. = 6G7 A @E

(udgment =ate 1 (une 3@@7

(urisdiction "abour &ourt, =urban

(udge illay (

!ubject- =ismissals based on perational Reuirements !ubstantive $airness in Retrenchment

Issue-

In what circumstances can an employee allege that in the "abour &ourt that his or her dismissal,

as part of a Pmass redundancy# necessitating s.1G6' proceduresC, is procedurally unfairS

1. erumal > another vs. Tiger Brands

!ummary of $acts-

The applicant challenged the substantive and procedural fairness of her redundancy.

The respondent contended that the provisions of the "R' prohibited the applicant from disputing

the procedural fairness in this instance.

In relation to substantive unfairness, the applicant alleged that the respondent had applied its

selection criteria in an unfair manner, a contention denied by the respondent.

!ummary of (udgment-

In respect of procedural fairness, the &ourt agreed with the respondent. It found that s.1G6' 1GC

of the "R' operates to bar procedural challenges from being raised in s.161 KC bCiiC disputes

relating to dismissals for operational reuirementsC, because s.1G6'1JC allows for challenges to

procedural defects by way of an order compelling the employer to conform to fair procedure. In

other words, because the applicant had not brought the procedural flaws to the attention of the

employer via s.1G6' 1JC, she forfeited the right to challenge the procedural fairness altogether.

In respect of the substantive fairness, the &ourt noted that the respondent had subjected the

applicant and her colleagues to a competency test and also reuired them to attend a meeting

held by an interviewing panel. The &ourt found that in both the test and the interview, the

respondent had acted in a biased manner towards the applicant. 'ccordingly, it found that the

dismissal was substantively unfair. It ordered that the applicant be reinstated, paid compensation

of 13 months with a partial costs order against the respondent

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(#.) ;ero A!!'i"nces (:ty) $td v CC&A Others 1

&ase 4o. (R G@K A @

(udgment =ate- 3G 0arch 3@@7

(urisdiction- "abour &ourt, (ohannesburg

(udge- Rampai '(

!ubject- ractice and rocedureA'ppeal and Review

Issue-

The matter rested on the correct jurisdiction for a claim relating to a mass retrenchment

1. Dero 'ppliances tyC "td vs. &&0' > thers

!ummary of $acts-

The applicant employer implemented a redundancy program that included, at the union#s reuest,

the appointment of a facilitator from the &&0' and the e)ecution of a facilitation agreement.

!ome three months after they have been made redundant, J employees lodged unfair dismissal

claims alleging procedural unfairness. The employer alleged that the referral was out of time and

had been directed at the wrong body. 4evertheless, a &&0' commissioner condoned the later

referral and issued a certificate to the effect that the dispute remained unresolved.

The employer approached the &ourt to have the commissioner#s condonation and the certificate

set aside.

!ummary of (udgment-

The &ourt found that the mere fact that the &&0' had been involved during the facilitation phase

of the retrenchment did not Pentail the transfer of jurisdiction over the dispute#.

The &ourt noted that it is the correct forum for lodging disputes about the procedural fairness of

Pmass retrenchments# pursuant to s.1G6'1JC. The employees had embarked on the wrong

dispute referral procedure. 'ccordingly, the &ourt held that the certificate was issued in error and

set it aside.

's to the condensation, the &ourt noted that the retrenched employees did not dispute or

uestion the retrenchment process while it was in progress and only did so 67 days after their

contracts were terminated, which Praised serious uestions about their bona fides#. It took the

employees 3JG days, from date of termination of their contracts, to raise the dispute in the &ourt.

It also found that the employees provided no e)planation and had not applied for condensation.

$inally, the &ourt assessed the employer#s chances of success as Pe)cellent#. The condensation

was also set aside.

&osts were awarded against the employees.

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E.GC "eppan and !uretrade 11@ && tAa Bra Boutiue

Retrenchment- breakdown of trust relationship

1E?0'F?@G 1

&ase 4o. Q4=B @@3?@7

'ward =ate @E $ebruary 3@@G

(urisdiction &&0', =urban

&ommissioner " Williams?de Beer

!ubject- Retrenchments, (urisdiction

Issue-

The

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The &ommissioner held that, with reference to the "& decision in Rand Water v Bracks 4 >

others, she did not have jurisdiction to adjudicate the procedural fairness of the dismissal. The "&

held in that matter that- 8's soon as the procedural fairness of the dismissal is put in issue by a

single employee, I am satisfied that section 16113C of the "R' must be interpreted as meaning

that such cases must still be referred to the "abour &ourt and that the &&0' will not have

jurisdiction to hear them.9

!he held, however, that she was entitled to split the issues and make a finding in the substantive

fairness of the dismissal. In this regard she held that the wording- 8reuirements based on the

economic, technological, structural or similar needs of an employer9 in section 31J of the "R'

was wide enough to include a breach of trust or a breakdown in the relationship.

In this matter, the

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calculated incorrectly as the bonuses were e)cluded from the uantum of remuneration on which

the 3 weeks# severance pay was calculated.

!ummary of (udgment-

In e)ercising powers given to him in terms of section JKKC, the 0inister published a schedule

indicating payments to be included in an employee#s remuneration for the purposes of calculating

pay for severance pay in terms of section E1 of the 'ct.

In terms of this notice discretionary payments not related to an employee#s hours of work or

performance do not form part of the remuneration for the purpose of calculating severance pay.

The court held that where an employer paid more than what section E1 of the 'ct reuired, a

section JKKC calculation would not apply. In this case, the

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affected employees were invited to apply for a more comple) post of asset administrator. The

applicant applied but was unsuccessful. The employer appointed a white male.

The applicant#s claim for inadeuate consultation relied on the fact that the employer commenced

consultation meetings on the same day that she was given a s.1G6 letter.

Interestingly, the applicant initially pleaded that her dismissal was automatically unfair because of

direct discrimination on the grounds of race and genderC. =uring the hearing, by leave of the

&ourt, she amended her claim to plead that the employer failed to consider the obligations of the

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4on?adjudicatory authorities include participation committee conciliator and arbitrator while

adjudicatory authorities include labour court and labour appellate tribunal.

(%.2) A!!'ic"tion of the '"bour court1

'n industrial dispute may be referred to the labour court in any of the following ways-

1C If no settlement is arrived by way of conciliation and the parties agree not refer the dispute to

an arbitrator and the parties have received a certificate of failure under section 31@11C the

worker may go on strike or the employer may declare lock out. 2owever the parties raising the

dispute may either before or after the commencement of a strike or lock out make an application

to the labour court for adjudication of the matter section 311C

3C 'gain if a strike or lock out lasts for mare than J@ days the government may prohibits such

strike or lock out and in that case the government must refer the dispute to the labour court 1

section 311,J,E,KCC

JC 'gain under section 31J any collective bargaining agent or any employer or worker may apply

to the labour court for the enforcement of any right guaranteed or secured to it or him by or under

this code or any award settlement.

1. 0d. 'bdul 2alim, The Bangladesh "abour &ode, 3@@,&&B $oundation,

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cC The labour court shall for the purpose of inflicting punishment have the same powers as are

vested in &ourt of !ession under that code.

dC ' labour court shall while trying an offence hear the case without the members.

(%.%) $"bour court is " civi' court

In the case of ubali Bank % the &hairman 1st labour court EE="R'=CE@ the uestion was

raised whether a labour court is a civil court or not their. "ordship of

1. 0d. 'bdul 2alim, The Bangladesh "abour &ode, 3@@,&&B $oundation,

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3. 0d. 'bdul 2alim, The Bangladesh "abour &ode, 3@@, &&B $oundation,

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$or this reason, they retrenched by the employee as the employers wish. %ery often, they

retrenched with out any legal process. This is injustice and in human. This should be protected

for the interest of industrialisation in Bangladesh. roper and strict provisions should be included

in "abour laws and state laws. The labours should not be deprived. Their rights should be

protected.

Illegal retrenchment by the employer is inhuman and increased the suffering of the labours. In

this respect he following action should be taken-

1. The cause of retrenchment should genuine and proper in the eye of law.

3. roper notice for three months should be given to the respective labour for his self defence,

J. If not the labour should be paid three months salary and other benefits allowable as per law.

(.3) Sco!e of the further study

The discussion of this thesis will be limited within the scope of the origin and historical

development of "abour law of Bangladesh, the problems of "abour law of Bangladesh, problems

of "abour education in Bangladesh and some case studies.

In Bangladesh perspective we find that there are several problems remain related with "abour

disputes, Workers roblem, Trade 5nion roblems,

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In * on the basis of the +a"istan ,o!ernment along with the report made by -ir ice

Marshal /ur 0han labour department was di!ided into three parts1 () Labour Department (2)

Department of Inspection for Factories and Establishments and (3) Department of Trade union4egistration. In the following year in 56 The Department of inspection for Factories and

Establishments was created as a separate department in pursuance of IL' Labour Inspection

%on!ention /o. 7 and labour policy of *. #angladesh emerges as an independent andso!ereign country in the world map through a glorious liberation war in 5. '!er the long

span of 82 years of independence a huge number of factories shops and commercial

establishments has flourished in the country. The importance of industry and trade is increasingday by day. Millions of wor"ers are wor"ing in these sectors. The Department of inspection for

Factories and Establishments has been carrying out the responsibilities by ensuring legal rights

safe and hygienic wor" place for the huge number of wor"ing people.

Read more: About Us

Inauguration of a Helpline

Number: 0800-4455000

http://www.dife.gov.bd/index.php/en/about-dife/introduction-to-difehttp://www.dife.gov.bd/index.php/en/home/16-english/news/76-inauguration-of-a-helpline-number-0800-4455000http://www.dife.gov.bd/index.php/en/home/16-english/news/76-inauguration-of-a-helpline-number-0800-4455000http://www.dife.gov.bd/index.php/en/about-dife/introduction-to-difehttp://www.dife.gov.bd/index.php/en/home/16-english/news/76-inauguration-of-a-helpline-number-0800-4455000http://www.dife.gov.bd/index.php/en/home/16-english/news/76-inauguration-of-a-helpline-number-0800-4455000

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This department has launched a toll free helpline number for the 4M, wor"ers to place any

complain to the go!ernment with a !iew to impro!ing the wor"ing conditions of the wor"ers.The 9onorable :tate Minister for the Ministry of Labour ; Employment Mr. Md. Mu