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 method,
Judicial method,
Ground theory method.

Sociological Method,
Statistical Method.
Method Used in this thesis:
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, Reemployment 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 reemployment; 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. J 1114 / 07
Award Date 29 June 2007
Jurisdiction Labour Court 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. PA 5 / 04
Judgment Date 29 June 2007
Jurisdiction Labour Appeal Court, 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. D 987 / 04
Judgment Date 1 June 2007
Jurisdiction Labour Court, 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. JR 805 / 06
Judgment Date: 28 March 2007
Jurisdiction: Labour Court, 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 Suretrade 110 CC t/a Bra Boutique
Retrenchment: breakdown of trust relationship
14-MAY-08 1
Case No. KNDB 6002-07
Award Date 04 February 2008
Jurisdiction CCMA, 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 comembers 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 No. JS 614 / 06
Judgment Date 21 June 2007
Jurisdiction Labour Court, 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 biannually.
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 No. JS415/05
Judgment Date 18 October 2006

Jurisdiction Labour Court, 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.
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