Termination limits

Published May 29, 2024
The writer is a consultant in human resources at the Aga Khan University Hospital and Vital Pakistan Trust
The writer is a consultant in human resources at the Aga Khan University Hospital and Vital Pakistan Trust

THERE is an acute misconception that employers in Pakistan possess an unrestricted right to hire and fire their workers. The phrase ‘hire and fire’ is used primarily to denote the employers’ unfettered right to sack workers. On the other hand, the idea of unlimited hiring is laudable as it provides employment to the populace.

The ‘right’ to anything is only derived from the law and not assumed by people. In labour laws, the provisions relating to the termination of workers’ employment are governed by the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. Following the devolution in 2010, this ordinance was re-enacted and promulgated by all the provinces but with minimal amendments. SO 1 (Section 2) classifies the workman in six categories: permanent, probationers, badlis, temporary, apprentices and contract worker. SO 12 provides the mode of termination of workmen other than the apprentices and the contract workers.

A probationer is provisionally employed for a period of three months to fill a permanent vacancy. A badli is appointed in the post of a temporarily absent workman. A temporary workman is engaged for provisional work, which is scheduled for completion within a nine-month period. The apprenticeship conditions are governed by the Apprenticeship Ordinance, 1962, including the termination of contract. The contract worker works on a contract basis for a specific period but the law is silent on his termination before the stipulated period ends.

Under SO 12 (2), the services of temporary workmen, badlis and probationers may be terminated without notice. However, the written order of termination should explicitly state the reason for the action taken. SO 12 (5) provides that the services of a permanent or a temporary workman shall not be terminated on grounds of misconduct “otherwise than in the manner prescribed in SO 15”.

SO 12 also contains the provision for ‘termination simplicitor’ in certain conditions. The services of a permanent workman may be terminated for “any reason other than misconduct” with a month’s notice or payment of one month’s salary in lieu of the notice. In Punjab, Sindh and KP, the employers are required to pay a month’s salary, whereas in Balochistan, three months’ salary has to be paid.

The ‘right’ to anything is only derived from the law.

Contrary to what the title implies, it becomes difficult for the employers to invoke ‘termination simplicitor’ as there is little reason to do so other than for misconduct. However, termination on the pretext of misconduct, carried out in the garb of termination simplicitor, is reversed by the labour court and the petitioner reinstated.

SO 12 also stipulates that “a workman shall be entitled to receive the amount standing to his credit in the provident fund, including the contributions of the employer to such fund, even if he resigns or is dismissed from service”.

SO 15 is the most important provision of the ordinance of 1968 with a list of offences constituting misconduct. A workman accused of misconduct is required to explain the charges levelled against him. If the employer is not satisfied with the explanation, he will ask the latter to appear before a domestic inquiry and his services will only be terminated if the complaint against him is declared valid.

The ordinance also prescribes procedures for the closure of establishment (SO 11-A) and retrenchment of workers (SO 13). In the case of closure, the empl­oyer cannot terminate more than 50 per cent of the workmen without prior permission from the labour court. In the context of retrenchment, the employer is to retre­nch the last person employed in a category.

While the aforesaid terms prove that the employers do not have unrestrained powers to terminate the services of their workers, aggrieved personnel face numerous impediments in their pursuit of reinstatement. At the outset, they need a lawyer conversant with labour cases and laws to pursue their cases before the court. People who have never witnessed the functioning of courts are often fearful of appearing before a judge. Besides, cases are adjourned frequently for various reasons.

Since 2018, I have visited the court 10 to 15 times for cross-examination by the petitioners’ lawyers on my affidavit filed before the court, but this is yet to take place. Such inordinate delays may not cause any difficulties for resourceful managements, but victimised parties suffer immensely as the process is expensive and time consuming. Therefore, only the expeditious delivery of justice can pave the way for labour litigation to become consequential and beneficial for wronged employees.

The writer is a consultant in human resources at the Aga Khan University Hospital and Vital Pakistan Trust.

Published in Dawn, May 29th, 2024

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