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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. Proper 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. So 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. So, we can not think an industry with out labour.
Labour right is most essential in Bangladesh. But the labours are in ignorance about their right.
They dont know properly about labour laws and education. It is a great problem. For this reason,
they retrenched by the employee. Very often, they retrenched with out any legal process. So I
dont 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 Labour Court and Labour
Appellate Tribunal in Bangladesh including application to the Labour court, Jurisdiction of the
labour court, Power and status of the labour court in trying offences, a labour court is a civil court
and Power and functions of the labour court and the tribunal. Lastly in chapter six I tried to
discuss about my conclusion on the thesis like Findings, Recommendations, and Scope for
Further Study which are my opinion. In this way I tried to organize 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
Labour Courts, its constitution, composition, powers and procedures, including the Labour
Appellate 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 Labour
Court. The next, third, section offers a detailed expose 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.

(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 organized
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.
From historical point of view labour law has given birth to some fundamental industrial rights to
labours in the field of production. At the same time it has also provided protection for those rights.
From a practical point of view labour and industrial law provide for three types of dispute
settlement measures voluntary settlement machinery, quasi judicial machinery and judicial
machinery.
(1.3) Importance of the Study
Labour 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. As such legislation for protection of
labour against long hours of work unhygienic conditions of work low wages and exploitation is
needed. The workers are exposed to certain risks in factories mines and other establishment. As
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.
(1.4) Scope and Limitation of Study
The discussion of this dissertation will be limited within the scope of the Origin and historical
development of Labour law of Bangladesh, the Problems of Labour law of Bangladesh, problems
of Labour education in Bangladesh and some case studies. The system of enrolment in the Bar
Council also discussed. There will be discussed about some nature of crimes committed usually.
(1.5) Methodology of Study
The methodology used in the thesis is Qualitative Methodology. Our research works are based on
1. Historical Study and 2. Analytical Study.
1. Historical Study: It has a historical back ground of workers movement for the establishment of
their rights. The workers movement becomes successful. Now the modern world, Modern state

and United Nations Organization highlighted the worker in their dignity, honor, position,
participation social work political activity etc.
In Bangladesh the workers retrenchment are guaranteed in their constitution, state laws, and
social and state activities. Through the historical revolution the workers right has come to this
position. The history workers movement started from 1971 after successful victory of the
Bangladesh war of Independence. So, to write this thesis we have to use historical study.
2. Analytical Study: In this thesis the formation development and solutions regarding workers
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 workers
right is judicial matter. So in this process of study the analytical study is necessary and important
for this thesis. For 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 qualitative in nature because, the impact that the study has searched
would not be possible to assess without qualitative data. Legal 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
workers retrenchment. Under these circumstances a regulated research work will be suitable to
solve the problems after investigating different variables such as laws relating to A Study on
Workers Retrenchment under Labour Law: Bangladesh Perspective.
Normally 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. Qualitative Research Method and 2.Quantitative Research method.
Research on A study on workers retrenchment of Bangladesh a new admiration has emerged
among the judicial persons, educators, sociologists, psychologists and public interest, lawyers,
politicians, scientists and many others. Peaceful, legal, moral, ethical happy life in the society is
the vital issue for the man kind. So considering all the above factors this research works utilizes
the following methodologies
Case

study

Judicial
Ground
Sociological
Statistical Method.
Method Used in this thesis:

method,
method,

theory

method.
Method,

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. Primary Source, 2. Secondary
source.
The basic data has been collected from the administrative source, legislative laws and historical
events. Other data has been collected from judicial rulings and affected persons information. By
focusing efforts on critical issues of authority concern, and the victim persons concern are the
important sources of data collection.
(1.6) Organization of Thesis
Labour Law is very importance in Bangladesh perspective. Labour 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 organized 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
Labour court and Labour appellate tribunal.
In the first chapter I tried to include Introduction, Objectives of the study, Importance of Study,
Scope and Limitation of Study, Methodology of study and Organization of Thesis. It is the
introductory chapter of the thesis.
In the second chapter I tried to discuss about Labour laws in Bangladesh like Employment
Conditions, Labour Laws, Settlement of Labour Disputes, Wages and Fringe Benefits, Leave &
Holidays, Social Security and Labour Union for the better improvement of industrial sector of
Bangladesh.
In the third Chapter I tried to discuss about retrenchments including Conditions for a valid
Retrenchment, Procedure of retrenchment, Retrenchment compensation, Re-employment of
retrenched workers, Condition of re-employment for retrenchment workers and Distinction
between lay-off and retrenchment.
In the fourth chapter I discussed about 10 cases like M/S Caltex oil (Pakistan) Ltd. vs. The
chairman second labour Court, Aminul Islam vs. James Finlay Co.Ltd, Bangladesh tea estate ltd
vs. Bangladesh tea estate staff union, Banks & Another vs. Coca-Cola SA, Oosthuizen vs.
Telkom SA Ltd., Perumal & another vs. Tiger Brands, Zero Appliances (Pty) Ltd vs. CCMA &
Others, Leppan and Suretrade 110 CC t/a Bra Boutique, Retrenchment: breakdown of trust
relationship14-MAY-08 Zietsman & others vs. Transnet Limited, Thekiso vs. IBM South Africa
(Pty) Ltd [Redundancy & EEA requirement etc.
Labour Law in Bangladesh:

Bangladesh offers an abundant supply of disciplined, easily trainable and low-cost work force
suitable for any labor-intensive industry. Of 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 expenditure
incurred by an employer to train his employee is exempted from income tax.
(2.1). Employment Conditions
The minimum age for workers in Bangladesh is 16 years in factories and establishments.
Contracts are made in the form of a letter of offer. Workers may also be engaged on verbal
agreements. In government organizations and in some private organizations as well, a probation
period exists for skilled or semi-skilled workers varying between three months to one year and
during this period either party may serve one months 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 ILO convention and recommendations.
(2.2). Labour Laws
In Bangladesh 47 labour laws are now in operation. These relate to (a) wages and employment,
(b) trade union & industrial disputes, (c) working environment and (d) labour administration and
related matters. The main labor laws are:
Workmens Compensation Act, 1923,
Payment of Wages Act, 1936
Maternity Benefit Act, 1936
Employment of Labour (Standing Orders) Act, 1965
Shops & Establishments Act, 1965
Factories Act, 1965
Industrial Relations Ordinance, 1969
(2.3). Settlement of Labour Disputes
Contract or agreement is usually made between the management and the Collective Bargaining
Agent (CBA) on settlement of industrial disputes as per provisions of Industrial Relations
Ordinance, 1969[1]. In case a bipartite negotiation fails, conciliation machinery of the government
is requested by the aggrieved party to intervene and the conciliation process is undertaken. If
succeeds agreement is signed between the parties and the Conciliation Officer becomes a
witness. If it fails, the party raising the dispute may go for strike or lockout as the case may be.
The government may, however, prohibit the same after one month in the interest of the public. In
the essential services like, (a) electricity, gas, oil & water supply etc. (b) hospital & ambulance
service, (c) fire brigade, (d) railway & Bangladesh Biman and (e) ports etc., strike is prohibited.[2]

(2.4). Wages and Fringe Benefits

In the public sector, wages and fringe benefits of the workers are determined by the government
on the recommendation of the National Wages Commission established from time to time. Such
commissions were appointed in 1973, 1977, 1984, 1989 & 1992. Wages & fringe benefits
declared by the government in 1977 having 20 grades of wages. The public sector employees
are, however, covered by the Pay Commission 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. Sometimes private industries follow the public sector
wages & salary structure for their workers and employees respectively.
(2.5). Leave & Holidays
Leave & holidays of the workers & employees are regulated by the Factories Act, 1965 and
shops Establishment Act, 1965.
(2.6). Social Security
Workmen Compensation, Maternity Benefit (Tea Estate) Act, 1950, Maternity Benefit Act, 1939,
Employment of Labour (standing orders) Act, 1965 etc. deal with provident fund and gratuity.
(2.7). Labour Union
Industrial Relations Ordinance, 19691 deals with trade union in Bangladesh. In any industrial and
commercial establishment, a trade union may be formed with 30% of the total number of workers
employed. If there is more than one union in any establishment, Collective Bargaining Agent is
determined by the Registrar of Trade Union through sector ballot for a term of two years. Only the
Collective Bargaining Agent is authorized to raise industrial disputes and negotiate with the
management. The Director of Labor of the government acts as the Registrar of Trade Union in
Bangladesh. Till December 1996; 4955 trade unions (workers union 4104 & employers
association- 851) exits in Bangladesh having 17, 30, 927 members.
Industrial Relations Ordinance, 1969 and The Industrial Relations Rules, 19772 provides that any
worker or employer/ has the right to form a union/association without previous authorization. But
such a union/association can not function as a trade union without being registered under the
law.
(2.8). Working Hours
Workers in the public or private sector remain at their job for eight and a half hours daily
(including half an hour for meal or rest) with Friday as weekly holiday marking 48 working hours a
week. Work in excess of these, is paid as overtime. The rate of overtime is 2 hours pay for 1-hour
job.
(3.1) Retrenchment

Section 2(11) 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. Retrenchment means the termination by the employer of the services of workers
on the ground of redundancy {sec. 2(q)}. 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 a valid Retrenchment
According to section 20 read with section 2(11) the conditions of a valid retrenchment are as
follows:
The workers to be retrenchment must be given one months notice;
The notice must be given in writing;
the notice must be contain reasons for retrenchment;
alternative to condition (2) 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 CBA;
there must be termination of services of a workman on the ground of redundancy or surplus
labour;
1. Md. Abdul Halim, The Bangladesh Labour Code, 2006,CCB Foundation, Ed.1, p.76
(3.3) Procedure of retrenchment
Section 20 of the code incorporates the well recognized principle of retrenchment in industrial
law1, namely, the last come first go or first come last go. The principal laid down in section 20
for retrenchment procedure are to be adhered to by every employer. The conditions which this
section prescribes for the procedure of retrenchment are as follows:
The claiming the protection of retrenchment procedure under section 20 must be a worker within
the definition in clause(65) of secion2;
The person must belong to a particular category of workers in the establishment concerned;
There should not be any agreement between the employer and employee contrary of last come
first

go.

The employer is bound to comply with all the above conditions while retrenching a worker.
However, the employer can deviate from this procedure on justifiable reasons which must be
recorded.
(3.4) Retrenchment compensation

Under clause (c) of section 20(2) payment of compensation for retrenchment is mandatory. The
provisions of compensation for retrenchment are as follows:
(1) At the time of retrenchment the worker must be paid compensation equivalent to thirty days
wages for every completed year of service or for any part thereof in excess of six months or
gratuity, if any, whichever is higher,
(2) 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;
(3) If a worker who is to be laid-off even after first 45 days in a calendar year under section 16(7),
is retrenchment instead of laying-off, no notice will be required. However, he shall be paid 15
days wages in addition to the compensation or gratuity which may be payable;
(4) 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. Md. Abdul Halim, The Bangladesh Labour Code, 2006,CCB Foundation, Ed.1, p.77
(3.5) Re-employment of retrenched workers
Retrenchment of surplus workers causes undue suffering not only to the retrenched worker but to
all his dependents. Therefore in order to avoid hardship to the worker and his family the
provisions have been made in section 21 of the code that such workman should be given an
opportunity to join service whenever an occasion arises to employ another hand. This principle
was regarded as of general application in industrial adjudication on the ground that it was based
on considerations of fair play and justice. The section provides that after effecting retrenchment, if
the employer proposes to take into his employment any person:
(1) He shall give opportunity to the retrenched workers who offer themselves for re-employment;
and
(2) These retrenchment workers will have preference over the new applicants. Thus section 21
imposes legal obligation on the employers to give preference to retrenched workers when he
subsequently employers any person.
(3.6) Condition of re-employment for retrenchment workers
A retrenched worker may claim preference under section 21 on the fulfillment of the following
conditions:
(1) to apply for preference under section 21 the worker concerned must have been retrenched in
last one year time prior to re-employment (thus a dismissed or discharged worker cannot claim
preference in employment)
(2) The worker must offer himself for re-employment in response to the notice by the employer;

(3) Workers will have priority according to the length of his service under the employer;
(3.7) Distinction between lay-off and retrenchment
(1) 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.
(2) The grounds of lay-off are May. In lay-off the failure refusal or inability to give employment is
on account of one or more of the reasons specified in section 2(58) 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.
(3) 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.
(4) In lay-off labour force is not surplus but in retrenchment labour force is surplus which is to be
retrenched.
(5) In lay-off employment relationship of employer and employer and employers is not terminated
but suspended while in retrenchment relationship is terminated.1
(4.1) M/S Caltex oil (Pakistan) Ltd. Vs. The chairman
Second labour court (1967) 19 DLR 264 1
Judge: S.D Ahmed and Abdul Hakim Khan
Heard on: 3rd, 6th, 7th March 1967
Judgment date: 9th March 1967
Dr. F.K.M.A Muslim .. (Petitioner)
Vs.
M.M Golam Hafiz (Respondandent)
Issue:
Whether to effect retrenchment condition of the section must be fulfilled or not
Fact:
In the present, case service of the employees have not been terminated in the manner provided
in section (12)of the Act. The termination of the service on the ground of retrenchment in terms of
section 12 can only take place when all the condition mentioned there under have been complied
with and not before.
1. M/S Caltex oil (Pakistan) Ltd. Vs. The chairman second labour court (1967) 19 DLR 264

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 Labour court was,
therefore justified and acted quite within its jurisdiction in holding that the termination of the
service of the respondents concerned was under section 19 of the Act and not under section 12
and claimed by the petitioner. The essential of a termination on the ground of retrenchment as
prescribed under section 12 are (a) 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 and(c) the worker has been paid at the time of
retrenchment compensation or gratuity which ever is higher as required under clause (c) of the
section 12 .
If notice in the chief inspector has not been served in terms of diction 12, the retrenchment of the
employee by the employer is not is according with law.
Judgment:
For 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. For the reasons stated above, we dont 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. Judge Abdul Hakim Khan also agrees
with.
(4.2) Aminul Islam Vs James Finlay Co.
Ltd 26DLR (SC) 33 1
Fact:
Mr.Aminul Islam was a head Clerk-cum Accountant under James Finally Company Ltd at Khulna.
His service was terminated allowing him wages in lieu of 90 days notice. The company preferred
to pay his wages for that period in addition to compensation at the rate of 14 days wages for
every completed year or part thereof in excess of six months. It was asserted that the termination
was for trade union activities of the workers and that it was case of victimization. The labour court
upheld the contention of the worker. On the appeal before the high court no opinion was
expressed on merits as the case was remanded to the labour court since the opinion of a
member was not obtained. On farther appeal to the Appellate division, it was held on fact that the
workers service was terminated without any stigma or charge and it was a termination
simplicater.
Judgment:

It has been contended that the service of Aminul Islam ware terminated due to his trade union
activities and as such it was act of victimization and the termination
1. Aminul Islam Vs James Finlay Co. Ltd 26DLR (SC) 33
virtually amounted to dismissal under the cloak of the tram termination . But his contention does
not hold good as on examination of the impugned order it has been found that the termination
simpliciter under section 19 and as such he was no longer a worker within the meaning of the
Act.
(4.3)Bangladesh tea estate ltd v Bangladesh tea estate staff union
(1976)28DLR (AD) 190 1
Facts:
One Mr. Nurul Abser Chowdhury was appointed as a clerk by the Bangladesh tea Estate ltd. On
1st June 1964. He was subsequently promoted to grade 2, gardener clerk on 3-7-67. The
employer company terminated his service under section 19 of the employment of labour act 1965
by a letter with all termination benefits. The employer instead of receiving his dues raised a
labour4 dispute through the union under the estate Pakistan labour dispute act 1965. The labour
court on consideration of evidence held that the termination of service of Nurul Abser was
malafide a code of victimization for his trade union activities and according made an award
directing to be a unit representative of the union.
On appeal by the employer company the high court of East Pakistan made an elaborate
discussion of evidence and dismissed the appeal on the ground that Nurul Abser was victimized
for his trade union activities. Because of his participation in trade union activities the order of
termination was passed by the management in disapproval of such activities.
The employer company obtained leave from the supreme court of Pakistan.
Issues:
Whether the question of termination under section 19 should only be decided under section 25 of
the standing orders act 1965 and cannot be raised as an industrial dispute under the labour
dispute

act

or

it

can

be

raised

as

an

industrial

dispute.

Can the court go behind the order of termination to see if it is really victimization or not.
Judgment:
The ratio decldendi of the two cited decision reported in 25 DLR (SC) 85 and in 13 DLR (SC) 280
(PDL 1961 (SC) 403) appear to be that the employer has a right to terminate the service of a
worker under section 19 of the standing order act without disclosing any cause and that the court
should not go behind an order of termination simpliclter to find out whether the order was
malafide or not.

1. Bangladesh tea estate ltd v Bangladesh tea estate staff union (1976)28DLR (AD) 190
There is however an exception to the rule that court not to go behind the order of a service of the
termination to see if it really was victimization. This exception is contained in section 19, itself
when read with section 25. it says that if purported termination is in reality victimization 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 19 of the standing orders
act.
Labour dispute is broad enough to include a dispute of a terminated worker under section 19 of
the standing act 1965 if the dispute centres round the victimization of the worker for his trade
union activates. It is to be remembering that section 25 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 (IRO). Through
section 25 bars all complaints against the order of termination under section 19 of the said act yet
it authorized 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 19. The
two acts are pair material and the provision in section 25 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.
(4.4)Banks & Another v Coca-Cola SA 1
Case

No.

Award
Jurisdiction

J
Date

1114
29

Labour

07

June
Court

2007
Johannesburg

Judge A Van Niekerk AJ

Subject: procedural fairness in Retrenchment.
Issue:
An application to interdict the employer from implementing a dismissal based on operational
requirements 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 & Another v Coca-Cola SA
Summary of facts:
The two applicants, both senior executives were dismissed due to operational requirements after
the process of consultation had broken down. Two and a half months later they approached the

Labour Court for relief in terms of Section 189A (13) and sought compensation in the event that
the court found that their dismissal had been procedurally unfair.
The allegations of the process being a shambles was denied by the Respondent Company and
the disputes were therefore factual and material to the issue.
The notice of termination was due to take place on the 30 June 2007 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 required by Section 189 of the
Act.
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 nothing 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 proposal.
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.
Summary of Judgment:
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 requiring the respondent and applicants to go
back to square one in the process and it was held that Section 189A 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 Section 189 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 189A (13) was referred to the trial roll for hearing of oral
evidence.

2. The application in terms of section 189A (13) to be enrolled simultaneously with any action that
the applicants may institute in relation to the substantive fairness of the dismissal. Should the
applicants not institute this action then the application made in terms of section 189A (13) should
be enrolled on the trial role.
(4.5) Oosthuizen v Telkom SA Ltd 1
Case

No.

Judgment
Jurisdiction

PA
Date

Labour

5
29

Appeal

04

June
Court,

2007
Johannesburg

Judge Zondo JP, Kruger AJA

Subject: Dismissals based on Operational Requirements Substantive Fairness 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.
Summary of Facts:
The appellant had been retrenched by the respondent. He lodged a claim in the Court 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 Court dismissed the applicants claim.
The appellant appealed to the LAC on the basis that (1) the respondent ought to have avoided
the redundancy by redeploying to one of the positions that he applied for and (2) on the basis that
the respondents selection criteria was unfair.
1. Oosthuizen v Telkom SA Ltd
Summary of Judgment:
On the issue of redeployment, the Court noted that the appellant had applied for 26 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 Court found that it had failed to justify the dismissal of the
appellant. Interestingly, the Court found that if the appellant required 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.
On the issue of the selection criteria, the respondents evidence was that skills, suitability and
employment equity 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 30
years with the respondent. The Court did not making any findings on this point, having already
ruled that the dismissal was substantively unfair because the appellant could have been

redeployed. The LAC did appear to find that the length of service was also relevant to the
obligation to redeploy.
The LAC 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. Costs were awarded against the respondent.
(4.6) Perumal & another v Tiger Brands
Case

No.

Judgment
Jurisdiction

D
Date

987
1

Labour

/
June

Court,

04
2007
Durban

Judge Pillay J
Subject: Dismissals based on Operational Requirements Substantive Fairness in Retrenchment
Issue:
In what circumstances can an employee allege that in the Labour Court that his or her dismissal,
as part of a mass redundancy (necessitating s.189A procedures), is procedurally unfair?
1. Perumal & another vs. Tiger Brands
Summary of Facts:
The applicant challenged the substantive and procedural fairness of her redundancy.
The respondent contended that the provisions of the LRA 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.
Summary of Judgment:
In respect of procedural fairness, the Court agreed with the respondent. It found that s.189A (18)
of the LRA operates to bar procedural challenges from being raised in s.191 (5) (b)(ii) disputes
(relating to dismissals for operational requirements), because s.189A(13) 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.189A (13), she forfeited the right to challenge the procedural fairness altogether.
In respect of the substantive fairness, the Court noted that the respondent had subjected the
applicant and her colleagues to a competency test and also required them to attend a meeting
held by an interviewing panel. The Court found that in both the test and the interview, the
respondent had acted in a biased manner towards the applicant. Accordingly, it found that the
dismissal was substantively unfair. It ordered that the applicant be reinstated, paid compensation
of 12 months with a partial costs order against the respondent

(4.7) Zero Appliances (Pty) Ltd v CCMA & Others 1

Case

No.

Judgment
Jurisdiction:

JR
Date:

805
28

Labour

06

March
Court,

2007
Johannesburg

Judge: Rampai AJ
Subject: Practice and Procedure/Appeal and Review
Issue:
The matter rested on the correct jurisdiction for a claim relating to a mass retrenchment
1. Zero Appliances (Pty) Ltd vs. CCMA & Others
Summary of Facts:
The applicant employer implemented a redundancy program that included, at the unions request,
the appointment of a facilitator from the CCMA and the execution of a facilitation agreement.
Some three months after they have been made redundant, 63 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. Nevertheless, a CCMA commissioner condoned the later
referral and issued a certificate to the effect that the dispute remained unresolved.
The employer approached the Court to have the commissioners condonation and the certificate
set aside.
Summary of Judgment:
The Court found that the mere fact that the CCMA had been involved during the facilitation phase
of the retrenchment did not entail the transfer of jurisdiction over the dispute.
The Court noted that it is the correct forum for lodging disputes about the procedural fairness of
mass retrenchments pursuant to s.189A(13). The employees had embarked on the wrong
dispute referral procedure. Accordingly, the Court held that the certificate was issued in error and
set it aside.
As to the condensation, the Court noted that the retrenched employees did not dispute or
question the retrenchment process while it was in progress and only did so 97 days after their
contracts were terminated, which raised serious questions about their bona fides. It took the
employees 238 days, from date of termination of their contracts, to raise the dispute in the Court.
It also found that the employees provided no explanation and had not applied for condensation.
Finally, the Court assessed the employers chances of success as excellent. The condensation
was also set aside.
Costs were awarded against the employees.

(4.8)

Leppan

and

Retrenchment:

Suretrade

110

breakdown

CC

of

t/a

Bra

trust

Boutique
relationship

14-MAY-08 1
Case
Award

No.
Date

Jurisdiction

KNDB
04

6002-07
February

CCMA,

2008
Durban

Commissioner L Williams-de Beer

Subject: Retrenchments, Jurisdiction
Issue:
The Employer had retrenched an employee with whom the Employment relationship had
irretrievably broken down. The Commissioner held that Employer was entitled to do this, and that
CCMA does not have jurisdiction to entertain procedural challenges in disputes concerning
retrenchments of single employees.
Summary of Facts:
The Employer was a close corporation in which the Employee held a 15% membership. Other
members were his mother (15%), Andre Dippenaar (40%), and Lynette and Kim Thompson (each
15%).
The Employee had also been the general manager for a period of 2 years. When a fellow
employee complained about him to the CEO, Ian Thompson (not a member of the CC),
Thompson suspended him.
The Employee then called a meeting with all the members where he pointed out that Thompson
was an un rehabilitated insolvent, and as a result, not allowed to act as the CEO, with the result
that Thompson was removed from this position.
Dippenaar, the majority shareholder then indicated that he would take over as CEO and the
employee indicated that he was not prepared to back Dippenaar in this position.
He failed to return to work and attempted to negotiate an exit package via his attorneys. This was
followed by another letter from his attorneys, indicating that he would return to work under certain
conditions. The conditions were not accepted by the new CEO, and indicated that he was not
prepared to work with the Employee.
1. Leppan and Suretrade 110 CC t/a Bra Boutique Retrenchment: breakdown of trust relationship
14-MAY-08
The Employer then invited the Employee to participate in consultation pending a dismissal for
operational reasons. No agreement was reached and the Employee was retrenched.
Summary of Award:

The Commissioner held that, with reference to the LC decision in Rand Water v Bracks NO &
others, she did not have jurisdiction to adjudicate the procedural fairness of the dismissal. The LC
held in that matter that: As soon as the procedural fairness of the dismissal is put in issue by a
single employee, I am satisfied that section 191(12) of the LRA must be interpreted as meaning
that such cases must still be referred to the Labour Court and that the CCMA will not have
jurisdiction to hear them.
She 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: requirements based on the
economic, technological, structural or similar needs of an employer in section 213 of the LRA
was wide enough to include a breach of trust or a breakdown in the relationship.
In this matter, the Employee was unable to function in a harmonious work environment with the
CEO and a breakdown in the employment relationship resulted. The breakdown was mutual in
this case.
The Commissioner held that there does not need to be a long history of problems for trust to be
damaged, particularly at a senior level and where parties are co-members of a close corporation.
As a result, the dismissal was held to have been substantively fair
(4.9) Zietsman & others v Transnet Limited 1
Case
Judgment
Jurisdiction

No.

JS
Date

614
21

Labour

/
June

Court,

06
2007
Johannesburg

Judge Molahlehi J
Subject: Retrenchment: Severance Pay
1.Zietsman & others v Transnet Limited
Issue:
The Employees sought a determination on whether the calculation of the severance pay by the
Employer should have included the dealer bonuses of each of the Employees as provided for in a
bonus scheme agreed to by the Employer.
The court held that as long as the Employer complied with the statutory minimum payments,
there was no additional entitlement to other payments.
Summary of Facts:
The 3 applicant Employees were retrenched by the Employer. They had all participated in a
bonus scheme in terms of which bonuses were paid to them bi-annually.
When they were retrenched they were paid a severance package of 2 weeks salary for each
completed year of service. The Employees claimed that their severance packages were

calculated incorrectly as the bonuses were excluded from the quantum of remuneration on which
the 2 weeks severance pay was calculated.
Summary of Judgment:
In exercising powers given to him in terms of section 35(5), the Minister published a schedule
indicating payments to be included in an employees remuneration for the purposes of calculating
pay for severance pay in terms of section 41 of the Act.
In terms of this notice discretionary payments not related to an employees 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 41 of the Act required, a
section 35(5) calculation would not apply. In this case, the Employees severance packages
exceeded what they would have received had they been paid the statutory minimum calculated to
include the bonuses.
As the Employees received more than what was provided for in section 41 of the Act and in the
absence of an agreement to use the formula provided for in section 35, the court held that the
Employer had complied with the requirement of the Act and that the Employees were not entitled
to payment of their bonuses.
(4.10) Thekiso v IBM South Africa (Pty) Ltd
[Redundancy & EEA requirement] 1
Case
Judgment

No.
Date

Jurisdiction

Labour

JS415/05

18

October
Court,

2006
Johannesburg

Judge Freund, Acting Judge

Subject: Procedural Fairness in Retrenchment
Issue:
The applicant was made redundant and challenged the decision on a number of grounds,
namely:
1. That she had not been adequately consulted;
2. That her employer used an inherently subjective selection criteria and she should have been
informed of the merits of each employee that was subject to the redundancy process; and
3. That the redundancy was unfair because the employer failed to consider the obligations
contained in the Employment Equity Act (EEA).
Summary of Facts:
The applicant worked in the employers asset management division which lost a number of
contracts that necessitated redundancies. Positions in the division were made redundant and

affected employees were invited to apply for a more complex post of asset administrator. The
applicant applied but was unsuccessful. The employer appointed a white male.
The applicants claim for inadequate consultation relied on the fact that the employer commenced
consultation meetings on the same day that she was given a s.189 letter.
Interestingly, the applicant initially pleaded that her dismissal was automatically unfair because of
direct discrimination (on the grounds of race and gender). During the hearing, by leave of the
Court, she amended her claim to plead that the employer failed to consider the obligations of the
EEA when determining parties for retrenchment. The applicant relied on s.15 of the EEA.
1. Thekiso v IBM South Africa (Pty) Ltd [Redundancy & EEA requirement]
Summary of Judgment:
The Court dismissed the applicants contention that she had not been adequately consulted,
noting that the applicant, when asked to attend a meeting on the same day as receiving her s.189
letter, had not objected or asked for more time. A number of consultation meetings were also held
subsequent to the initial meeting.
On the issue of the selection criteria, the Court found against the employee, noting that a
retrenching employer that has one post to fill is not required to debate the merits of each
employee with the others before making the selection.
The Court noted that the applicant relied on the EEA to claim that the employer was obliged to
retain the applicant (a black woman) in preference to a white male provided she was suitably
qualified for the available position.
The Court was quick to reject this claim, referring to its earlier decision of Dudley y City of Cape
Town in which it was determined that the EEA does not bring about an individual right to
affirmative action. The applicant had submitted to the Court that Dudley was wrongly decided
and should not be followed.
The Court did not agree and it noted, the obligation imposed by the EEA obliges designated
employers to take measures to retain and develop people from designated groups does not
mean that designated employees should be afforded a preference when it comes to selection in
the retrenchment context.
(5.1) Basic Idea
To promote industrial peace and to establish a harmonious and cordial relationship between
labour and capital by means of conciliation mediation and adjudication. With this end in view
different authorities have been created under the code to resolve an industrial dispute. Of these
tow bodies are adjudicatory or judicial. They are the labour court and the labour appellate
tribunal. The code has streamlined for some non-adjudicatory as well as adjudicatory authorities.

Non-adjudicatory authorities include participation committee conciliator and arbitrator while

adjudicatory authorities include labour court and labour appellate tribunal.
(5.2) Application of the labour court1
An industrial dispute may be referred to the labour court in any of the following ways:
(1) 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 210(11) the
worker may go on strike or the employer may declare lock out. However 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 211)
(2) Again if a strike or lock out lasts for mare than 30 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 211,(3,4,5))
(3) Again under section 213 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. Md. Abdul Halim, The Bangladesh Labour Code, 2006,CCB Foundation, Ed.1, p.280
(5.3) Jurisdiction of the labour court
Under section 214(10) a labour court shall have exclusive jurisdiction to
(1) Adjudicate and determine an industrial dispute which has been referred to or brought before it
under this code;
(2) Enquire into and adjudicate any matter relating to the implementation or violation of a
settlement which is referred to it by the government
(3) Try offences under this code
(4) Exercise and perform such other powers and functions as are or may be conferred upon or
assigned to it by under this code or any other law.
(5.4)Power and status of the labour court in trying offences
Section 215 and 216 of the code provides the procedure and powers of labour court which is may
be of two types; 1
(1) Power and status in trying offences and
(2) Power and status in civil maters
(a) The labour court shall follow as nearly as possible summary procedure as prescribed under
the code of criminal procedure 1898 (Act V of 1898)
(b) A labour court shall for the purpose of trying an offence under the code have the same powers
as are vested in the court of a magistrate of the first class under the code of criminal procedure.

(c) The labour court shall for the purpose of inflicting punishment have the same powers as are
vested in Court of Session under that code.
(d) A labour court shall while trying an offence hear the case without the members.
(5.5) Labour court is a civil court
In the case of Pubali Bank V the Chairman 1st labour court 44DLR(AD)40 the question was
raised whether a labour court is a civil court or not their. Lordship of
1. Md. Abdul Halim, The Bangladesh Labour Code, 2006,CCB Foundation, Ed.1, p.282
the appellate division upon consideration of relevant provision of the industrial relations ordinance
1969 held that the labour court acts as civil court for limited purpose but not a civil court at all it is
only by a legal fiction or a statutory hypothesis that it is to be treated as a civil court.
Labour Appellate tribunal Constitution
(1) The labour Appellate tribunal shall consist 1 of a chairman or the government deems fit of a
chairman and such number of members as determined by the government additional judge of the
high court division (section 218(1))
(2) The chairman of the tribunal shall be from amongst persons who is or has been a judge or an
additional judge of the Supreme Court or is or has been a district judge for at least three years.
(3) If the chairman is absent or unable to the tribunal the chairman any reasons the senior the
senior member of the tribunal if any shall discharge the functions of the chairman.
(4) An appeal or any matter before the tribunal may be heard and disposed of by the tribunal
sitting as a whole or by any bench thereof.
(5.6) Power and function of the tribunal 2
(1) Subject to this code, the tribunal shall follow as nearly as possible such procedure as are
prescribed under the code of civil procedure, for hearing of an appeal by and appellate court from
original decrees.
If the members of a bench are divided in their opinion as to the decision to
be given on any point(a)The same shall be decided according to the opinion of the majority, if any
(b) If the member of the bench is equally divided, they shall state the point on
which they differ and the case shall be referred by them to the chairman for
hearing on such point by the chairman himself, if he is not a member of the
tribunal, and such point shall be decided according to the opinion of the
chairman or member or majority of the members hearing the points, as the
case may be.
1. The Labour Code of Bangladesh 2006, {section 218(1)}

2. Md. Abdul Halim, The Bangladesh Labour Code, 2006, CCB Foundation, Ed.1, p.287
(2) Where a bench includes the chairman of the tribunal as one of its members and there is a
difference of opinion among. The members and the members are equally divided, the Decision of
the chairman shall prevail and the decision of The Bench shall be expressed in terms of the
opinion of the Chairman.
(3) The judgment of the tribunal shall be delivered within a period of not more then 60 days
following the filing of the appeal.
(4) The tribunal shall have authority to punish for contempt of its authority, or that of any labour
court as if its were a high court division of the Supreme Court.
(5) The tribunal may, on its own motion or on the application of any party, transfer a case from
one labour court to another.
(6) The tribunal shall have superintendence and control over all labour courts.
(6.1) Finding:
Workers retrenchment is a very essential function of the labour law. Its a very effect for Labours
and the Employers. No worker employed in any shop or commercial or industrial establishment
who has been in continuous service for not less then one year under an employees shall not be
retrenched by the employer unless(a) the worker has been given one months notice in writing, indicating the reason for
retrenchment or the worker has been paid in lieu of such notice, wages for the period of notice;
(b) a copy of the notice in respect of the retrenchment is send to the chief inspector or any other
officer authorized by him ; and
(c) the worker has been paid, at the time of retrenchment , compensation which shall be
equivalent of fourteen days wages for every completed year of service or for any part thereof in
excess of six month, or gratuity, if any, whichever is higher :
For the purpose of calculation of compensation under this Section, wages shall mean the
average of the basic wages plus dearness allowance, if any, paid to the worker during the period
of twelve month immediately preceding the date of retrenchment.
(6.2)Recommendations
The importance of labour law is very much in Bangladesh perspective. It is highly importance in
Bangladesh perspective of labour law. We know that labour is a most important part of an
industry. So, we can not think an industry with out labour. Labour right is most essential in
Bangladesh. But the labours are aware about their right. They dont know properly about labour
education. It is a great problem.

For this reason, they retrenched by the employee as the employers wish. Very 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. Proper and strict provisions should be included
in Labour 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.
2. Proper notice for three months should be given to the respective labour for his self defence,
3. If not the labour should be paid three months salary and other benefits allowable as per law.
(6.3) Scope of the further study
The discussion of this thesis will be limited within the scope of the origin and historical
development of Labour law of Bangladesh, the problems of Labour law of Bangladesh, problems
of Labour education in Bangladesh and some case studies.
In Bangladesh perspective we find that there are several problems remain related with Labour
disputes, Workers Problem, Trade Union Problems, Employments problems, Working Hour
Schedule etc. So we think further study may be done on the following issues:
1. Labour disputes solution process.
2. Trade Union Problems and their functions
3. Employers and Employees relation.

http://www.dife.gov.bd/index.php/en/

About Us
The Department of Inspection for Factories and Establishments (DIFE) is a department under the
Ministry of Labour and Employment. This department is responsible for ensuring welfare, safety
and health of valuable human resources working in various sectors contributing national
development. By enforcing labour laws of the country, the department has been leading the
nation in creating a safe and healthy work culture and improving the quality of wage earner. The
DIFE is no longer considered a mere labour law enforcement agency, it provides
information and advice to employers and workers concerning the most effective means
of complying with the legal provisions. The DIFE Collaborates with various government and
private organizations, agencies along with international organizations specially ILO to facilitate
policy, planning, measures and directions adopted to enhance occupational safety and health for
all workers by appropriate working conditions and environment.

In 1969, on the basis of the Pakistan Government along with the report made by Air Vice
Marshal Nur Khan, labour department was divided into three parts: (1) Labour Department (2)
Department of Inspection for Factories and Establishments and (3) Department of Trade union
Registration. In the following year in 1970, The Department of inspection for Factories and
Establishments was created as a separate department in pursuance of ILO Labour Inspection
Convention No. 81 and labour policy of 1969. Bangladesh emerges as an independent and
sovereign country in the world map through a glorious liberation war in 1971. Over the long
span of 42 years of independence, a huge number of factories, shops and commercial
establishments has flourished in the country. The importance of industry and trade is increasing
day by day. Millions of workers are working in these sectors. The Department of inspection for
Factories and Establishments has been carrying out the responsibilities by ensuring legal rights,
safe and hygienic work place for the huge number of working people.
Read more: About Us

Inauguration of a Helpline
Number: 0800-4455000

This department has launched a toll free helpline number for the RMG workers to place any
complain to the government with a view to improving the working conditions of the workers.
The Honorable State Minister for the Ministry of Labour & Employment, Mr. Md. Mujibul
Haque, MP, has inaugurated the toll free helpline service on 15 March 2015 at the Bangladesh
Secretariat, Dhaka-1000. Any one can make a call to inform his or her complain to the above
mentioned number without any cost.