Covid-19 is not a tool to wrongfully terminate employees

A report by Kuensel reads “Laid-off say hoteliers taking advantage of their plight.” If the report is true, it is a serious infringement on the fundamental and basic human rights of the employees, breach of employment contract, violates employment laws and regulations, and undermines His Majesty’s Kidu prerogative.

Termination without prior notice or on false pretext of Covid-19 amounts to violation of the employee’s fundamental right to life, liberty and security guaranteed under Article 7(1) of our Constitution. Further, such actions violate numerous provisions of Labour and Employment Act, 2007 and regulations.  For example, while Section 51 and 61 requires a written employment, Section 62 recognises even unwritten contract and is enforceable. The Act mandates that the contract must include the duration, job description, notice period for termination, wages, working hours, probation period and leave provisions.

Section 68 imposes a duty on the employer to provide a notice of termination of the employment at least 30 days prior to termination. The violation of a notice period can hold the employee liable for fine. However, Section 81 does provide automatic termination of employment in case of among others, “if either party is unable to fulfil the contract due to circumstances outside the control of the parties.”

Covid-19 imposes restrictions on hotels and therefore laying off employees under bonafide reason is acceptable. But the employers must follow due process to lay them off and not indiscriminately without prior notice or deprive them of their salary. Section 93 provides that in case of wrongful dismissal, it gives an employee the right to initiate dispute resolution including filing suit in the court. Remedies include reinstating to his or her employment to “same or equivalent position,” or “order the employer to pay compensation” if proven.

Considering the ignorance among employees particularly the young about their right, labour officials must take cognizance of such reports and take necessary actions against erring employers. For example, Section 25 of the Act imposes a duty on the Labour Relations Officers not only about educating employees about their rights but also investigate the nature and causes of a labour dispute and help them resolve the disputes. With the current health emergency, possible abuse of powers by employers in the name of the pandemic and vulnerabilities of employees in the service industry are all time high. Thus, the labour ministry must set up appropriate mechanisms including helplines to deal with such abuses and mistreatments of employees.

Otherwise, the employees will continue to suffer while some employees in the name of Covid-19 may take advantage of the situation including possible sexual exploitation of our young women and forced labour as thousands of lost their jobs or income overnight. Going by the recent news, the MoLHR has failed to protect the rights of employees, the sign of dereliction of their duties as labour officers.

While it is understandable that the hotel industry is one of the most affected, it does not license the employers to fire their employees wrongfully. Their threat of depriving their own employees of Royal Kidu is nothing short of disrespect to the institution of Monarchy. The employers must remember that every employee not only fed them but also contributed enormously in building their business until this pandemic hit the industry.

Sonam Tshering

Lawyer, Thimphu

Disclaimer: The views expressed in this article are author’s own.

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