disciplinary procedures under bangladesh labor act 2006

DISCIPLINARY PROCEDURES UNDER BANGLADESH LABOUR ACT 2006’

Holding No 4/2 A, Plot – 49 & 57 135 Gopalpur , ,Munnu Nagar, Tongi, Gazipur, Bangladesh . Phone: 880-2-9817461, 880-2-9817462, 880-2-9817463


AGENDA

Background on the Bangladesh Labour Act 2006 (BLA)

Background on Disciplinary Action and Procedures

Detailed discussion on Disciplinary Actions

Detailed discussion on Disciplinary Procedures

Grievance Procedure

Q&A session


BACKGROUND OF THE BLA 2006

• Twenty-five Labour related laws have been compiled into one single piece of legislation, namely, the Bangladesh Labour Act -2006 (BLA), which contains 354 sections under 21 chapters.

• It has brought almost all provisions relating to labour laws in one place, removing obscurity and inconsistency.


APPLICABILITY OF BLA

• BLA is applicable for the ‘worker’ category of employees;

• For ‘non-worker’ category of employees, BLA is not applicable. The Master-Servant Rule, i.e. the terms of the employment contract (and HR Manual, if any)is the applicable law.

• However, to have a consistency, we prefer to apply the BLA for all kinds of employees to set the minimum standard.


BACKGROUND OF DISCIPLINARY ACTION AND PROCEDURES

• Basically it means that an employee can be dismissed from his services, or given other punishments, if he is proved to have committed any misconduct.

• The process the employer has to go through in ‘proving’ his guilt and giving of punishment is called the Disciplinary Procedures.


BLA PROVIDES FOR DISCIPLINARY ACTION IN:

Section 23:..... a worker may be dismissed without prior

notice or pay in lieu thereof, if he is –

(a)Convicted for any criminal offence; OR(b)Found guilty of misconduct under section 24.


DEFINITION: DISMISSAL

S. 2 (xxxix) of BLA 2006 provides, ‘dismissal’ means the termination of services of a worker by the employer for misconduct.


DEFINITION: MISCONDUCT-WHAT AMOUNTS TO MISCONDUCT?

S. 23(4)- the following acts and omissions shall be treated as misconduct-(a) Wilful insubordination or disobedience, whether alone or in combination with others to any lawful or reasonable order of a superior;(b) theft, fraud or dishonesty in connection with the employer’s business or property;(c) taking or giving bribe in connection with his or any other worker’s employment under the employer;(d)habitual absence without leave OR absence without leave for more than ten days;


DEFINITION: MISCONDUCT-WHAT AMOUNTS TO MISCONDUCT?

(e) habitual late attendance;(f) habitual breach of any law or rule or regulation applicable to the establishment;(g) riotous or disorderly behaviour in the establishment, or any act subversive of discipline;(h) habitual negligence in work;(i) habitual breach of any rule of employment, including conduct or discipline, approved by the Chief Inspector;(j) falsifying, tampering with, damaging or causing loss of employers official records.


MISCONDUCT : SOME PRINCIPLES• The list is non-exhaustive.• Can include any other conduct that each

establishment feels fit to be added to the Service Manual.

• May vary from establishment to establishment, depending on the type and nature of business.

• One single act or omission done only once may not constitute misconduct, especially when it is minor in nature. Usually habitual or repeated adverse acts or omissions amount to misconduct.


MISCONDUCT: EXAMPLES

HR Manuals of some establishments also include the following as misconduct:Unaccountable time away from the office while on dutyDamage to or loss of the Establishment’s goods, property, or documentDrunkenness, gambling, picketing, inciting others to abstain from work, etc.Collection or canvassing for collection of money within office premises for any purpose not approved by the EstablishmentDistribution or exhibition of any paper, hand bills, pamphlets posters etc. .detrimental to the interest of the EstablishmentRefusal to comply any order of transfer, influencing management to change or cancel such order


A CONSEQUENCE THAT FOLLOWS DISMISSAL:

S. 23 (3) provides- worker dismissed under S 23 (1) or removed under S 23(2)(a) shall be paid by the employer compensation at the rate of fourteen days wages for every completed year of service, or gratuity, if any, whichever is higherConditions:The worker’s continuous service is not less than one year.He was NOT dismissed for S 23 (4)(b) (theft, fraud, dishonesty)


DISCIPLINARY PROCEDURESProcedure for Punishment

S 24 (1) provides that- No order of punishment under section 23 shall be made against a worker, unless-(a) the allegations against him are recorded in writing;(b) he is given a copy thereof and not less than seven day’s time to explain;(c) he is given an opportunity of being heard;(d) he is found guilty, after enquiry;(e) the employer or the manager approves of such order.


DETAILED STEPS OF DISCIPLINARY PROCEDURES:

Step-1: Preliminary inquiry, written statementStep-2: Charge Sheet Frame

Step-3: Delivery of charge sheetStep-4: Receiving of information

Step-5: Selection of enquiry officerStep-6: Serving enquiry notice

Step-7: Conducting Proper enquiryStep-8: Enquiry report by the enquiry officer

Step-9: Taking decision Step-10: Awarding of punishment

Step-11: Serving the punishment letter

Step-7: Proper Enquiry- Investigation Process

• The Enquiry covers the hearing of the case, i.e. recording evidence, admitting documents and generally completing the record upon which a finding would be based. It is only after all the material has been placed on the record by both the sides that the stage of reporting a finding would arise.


STEP-7: PROPER ENQUIRY- INVESTIGATION PROCESS

• Steps under this step-

1. Pre-Interview process2. Gathering Information

3. Analyzing the information4. Writing the Report

5. Follow Through


INVESTIGATION PROCESS

• Step1-Pre-Interview process

a. Prepare a list of people to be interviewed. Set an interview schedule and appropriate location for conducting the interview.

b. Estimate, for yourself, and for the benefit of others involved, a time-line for this investigation.


GATHER INFORMATION

a.Analyze whether any further interview is necessary for gathering more information.

b.Prepare a draft questionnaire for the interviewees;

c.Make a general statement about this complaint and ask what they know about it; ask interviewees if they have any question;


GATHER INFORMATION d. Where necessary, at the end of each interview with the

complainant, if any (for example in sexual harassment case), and the accused employee, give them additional instructions, such as:

• the complaint is being- taken seriously, investigated thoroughly, and as quickly as possible

• They should not talk about the incident or investigation to anyone, and if they have any question or additional information they should feel free to contact you

• when to expect the investigation to be completed• What will happen at the end of the investigation (for

example, that a report will be submitted to the Authority, that they will be allowed to read and respond to that report, etc.)

e. Take notes during each interview and get them signed and if possible, record the interviews.


GATHER INFORMATION f. Assessing the Credibility of Interviewees- Use the

following factors to assess the credibility of interviewees:

• Demeanor;• Logic and Consistency of the Story ;• Corroborating, Supporting, or Confirming Evidence;• Circumstantial evidence

g. Gather all materials/documents which may include, but not be limited to, a written complain from the employee, other materials relating to the complaint.


a. Analyze: Did the alleged misconduct actually occur? b. Compare and contrast the information that have been gathered

about alleged behaviour with the definition of the concerned misconduct under s.23(4) of the BLA and the manual.

c. Prepare an assessment checklist. The following factors should be taken into account while analyzing. The situation in each case will determine how much weight needs to be put in each of these factors:

• Severity of the conduct;• Number and frequency of the misconduct;• Apparent intent of the accused employee; etc• Response of/effect on the victim (where appropriate-e.g. harassment

case);• Working environment;• Public or private situations; etc.d. Evaluate the overall picture and make an assessment of the level of

seriousness of the claim.

ANALYZING THE INFORMATION


WRITING THE REPORTOutline of the Final Report• Part One: A One Page Summary of the Report

• Part Two: The Main Body of the Report A. Background B. Summary of Complaints and Findings

• Part Three: Appendix and Attachments


FOLLOW THROUGH

• Submitting report to the Authority.• Attending the meetings and answering any question incidental to the content of the report.• After assessing the report, the Authority takes the decision accordingly.


SOME IMPORTANT PRINCIPLES:

• S 24(9) provides that-If a worker refuses to accept any notice, letter, charge-sheet, order or any other document addressed to him by the employer, it shall be deemed that such notice, letter, charge-sheet, order or the document has been delivered to him, if a copy of the same has been exhibited on the notice board and another copy has been sent to the address of the worker as available from the records of the employer, by registered post.


FAIR TRIAL AND NATURAL JUSTICE• Cross Examination- S.24 (5) provides- If in an enquiry,

any oral evidence is given on behalf of any party, the party against whom the evidence is given may cross examine the witness.

• Principles of Natural Justice require that before awarding punishment, the delinquent (accused) employee should be given a chance of being heard. Witness examined behind the back of the accused should be allowed to be cross-examined by such officer.

• S.24(4) In an enquiry the accused worker may be helped by any person nominated by him who is employed in the establishment.


PROCEDURAL FAIRNESS

• Procedural fairness is concerned with the procedures used by a decision-maker, rather than the actual outcome reached. It requires a fair and proper procedure be used when making a decision. The Committee who follows a fair procedure is more likely to reach a fair and correct decision.

• For ensuring procedural fairness the following rules should be followed.


BIAS

1.The ‘bias rule’ or ‘rule against bias’ is a principle of procedural fairness which requires decision makers to:

• not have an interest in the matter being decided, and • not appear to bring a biased or prejudiced mind in

making the decision.

This does not require the decision maker to be actually biased. Appearance of bias is enough. The test is whether a fair-minded observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question.


2. The Hearing RuleFairness demands that the accused employee be told about the complaint and given the chance to reply before Committee reaches a finding that could negatively affect him/her. Put simply, hearing the other side of the story is critical to decision-making.

3. Presumption of innocence

Every accused employee is presumed to be innocent unless the allegation against him is proved.

4. Relevance

Evidence is relevant if it is logically probative or disprobative of some matter which requires proof.

Relevant evidence is generally admissible and irrelevant evidence is never admissible. Relevant evidence may be excluded for unfair prejudice, confusion, or waste of time.


BIAS

5. WeightThe weight of the evidence concerns the extent to which the evidence does prove or disprove the conclusion.

Weight is a subjective factor. It depends on various factors which includes, but is not limited, to the credibility of a person, surrounding circumstances etc.

People sometimes lie not from a sense of guilt but for example in an attempt to bolster up a just cause, or out of a wish to conceal disgraceful behaviour. Therefore, it cannot be the sole reason for proving guilt of an accused.


BIAS

7. Character EvidenceGenerally bad character evidence is inadmissible. However, if accused employee has previous complaint of same kind then negative inference can be drawn. But similar kind of previous allegation does not prove his/her guilt. It is also irrelevant whether he/she was found guilty previously.

8. Standard of proofAfter scrutinizing the evidence if the Committee is satisfied that the Complaint has been proved against the accused employee then he might be found guilty of the conduct complained of. The decision must be taken by the majority members of the Committee.Proof ‘beyond reasonable doubt' is not required, a strong probability is sufficient.

9. Burden of proof: The burden of proving the allegation shall lie with the complainant as opposed to the accused employee disproving the same. Holding No 4/2 A, Plot – 49 & 57 135 Gopalpur , ,Munnu Nagar, Tongi, Gazipur, Bangladesh . Phone: 880-2-9817461, 880-2-9817462, 880-2-

9817463

BIAS

PUNISHMENT:

• The Enquiry Committee gives recommendation based on the findings of the total Enquiry and Investigation Process. The recommendation is given to the superior authority, for example the CEO or Head of HR etc. They take decision on the basis of the recommendation.


PUNISHMENT

• S. 24(8) In cases of punishment, a copy of the order inflicting such punishment shall be supplied to the worker concerned.

• S. 24(10) In awarding punishment, the employer shall take into account the previous record of the worker concerned, the gravity of the misconduct, and any other that may exist.


MITIGATION OF PUNISHMENT

• In case of awarding a major punishment (such as dismissal from service) upon a worker, the employer has an obligation to consider extenuating circumstances in favour of the worker, such as period of service and previous record.

• If extenuating circumstance exists- lesser punishment, namely, discharging him from his employment without wages should be awarded, instead of outright dismissal.

• If any doubt exists as to the presence of any extenuating circumstance, the benefit thereof should go to the worker and lesser punishment should be given.


INVESTIGATION COMMITTEE’S DO’S AND DON’TS

DO’S

• Provide ample opportunity to the accused to defend himself.

• Provide safety for witnesses and supporters of the complainant and/or accused.

• Use a cheerful, comfortable, airy room for meeting the complainant and/or accused.

• Ensure that your body language communicates complete attention to the complainant and/or the accused.

• Treat the complainant and/or accused with respect.

• Where appropriate consult the complainant for punitive action and help the complainant regain his/her self-respect.


COMPLAINTS COMMITTEE’S DO’S AND DON’TS

DON’TS

• Do not, under any circumstance, get aggressive. • Do not insist on a detailed description of the misconduct

where it is harassment or threatening or intimidation of the complainant. This could increase the complainant’s trauma.

• Do not allow for interruptions when talking to the complainant and/or accused.

• Do not make a simple issue a big one, or give big sanction for a less serious misconduct, just to set example for other employee.

• Remember, a lot of disciplinary issues may give rise to human rights claim. Therefore, take every step carefully.


Q&A SESSION

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disciplinary procedures under bangladesh labor act 2006

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