Dear readers, this week Your legal advisor is A S M Sayem Ali Pathan, Advocate, The Supreme Court of Bangladesh. He is the head of the chambers of a renowned law firm, namely 'Pathan & Associates', which professionally deals mainly with corporate law, commercial law, family law, employment and labor law, land law, banking law, constitutional law, criminal law, IPR and in conducting litigations before courts of different hierarchies.
I joined a reputed bank last in May 2014 and was on a probationary period. I was doing quite well. However, in January 2015 I got a better job offer in a multinational company. Consequently I submitted resignation to be released with effect from 1st April 2015. I also gave up 1 month's salary as per the terms of the employment agreement. Now the problem is that I had to sign a bond when I had joined, which stipulates that, 'I will stay in the job for a minimum period of 5 years'. In case I resigned before that, I will be required to give up one year's basic salary to the company (my previous employer). Now they wish to execute the bond because I left within 11 months.
My query is, whether this bond is legal and executable before law? What can I do now?
Md. Saiful Islam
F. Rahman Hall, Dhaka University
Thank you very much for your queries. I understand that you have resigned from the service of a company you joined in may 2014. And you signed and executed a bond which guarantees that you would serve your employer as an employee for a minimum period of 5 (five) years.
And in the event of your voluntarily resigning before this stipulated period, your 12 (twelve) months' basic salary shall be liable to confiscated by the employer. In our country, especially in banking sectors many youngsters often faces this problem, which they find very knotty and encumbered on the way to their targeted career.
Victim of such bonds often ask lawyers whether those bonds are lawful or fair. Our answer often ends with saying, 'it depends', such as, if the bond is lawful and valid, it is enforceable. On the other hand, it will have no value before the Courts of Law, if it is found not to be 'valid' or 'lawful'.
As you have already resigned from job and no more wished-for to work with your employer, hence, if your employer goes against your will and wants to make you compel to work with the company then it does amount to forced labour.
Article 34 of Constitution of Bangladesh provides that "All forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law."
Moreover, Article 40 of the Constitution of Bangladesh ensures freedom of profession or occupation which is lawful.
Section 27 of Contract Act 1872 provides that every agreement by which any one is restrained from exercising a lawful profession, trade or business of any kind, is to that extent void.
According to the labour law of Bangladesh, a permanent employee can terminate his/her employment by giving a two months' notice or payment in lieu of notice and for contractual employees the notice period can be one month or payment in lieu.
Now the question arises if making such bond is unfair why employer asks proposed employee to execute such bonds the answer is, - to ensure the uninterrupted service from an employee. But this bond cannot be such which may go against public policy and public interest.
However, if your employer spent money for making you an efficient employee by giving you training and schooling, then demanding 1 year?s basic salary may be fair, but the cost of training should be as equal as 1 year's basic salary. In such a case, the Employer's expenditure (e.g. training expense) shall be considered as valid consideration but we are in doubt whether any company would actually spent such money behind an employee, if it is not found to be so then cutting 1 year?s basic salary for mere training sounds unfair.
But you have not clarified whether in this period of 11 month you have been given any training; remember that, that only giving you the job does not suffice a lawful consideration which may render such a bond illegitimate.
On the other hand if you are not given any higher training , or given a simple trinning not so equal as one year?s basic salary, then such bond requiring to surrender 1 year's basic salary sounds unlawful and unfair, which ultimately authorizing modern trade slavery.
In light of the above discussion, it is advisable that, if you are given extra training or higher training or if employer spent enough money behind you other than mere giving you job, then you should go for a negotiation with your employer on the exact amount to be surrendered.
On the other hand, if your employer did not give such consideration then the bond may not be enforceable. In this respect, you have to send a letter to the employer to that cause, illuminating the grounds for you not conforming to the bond in clear language. In this regard you may take help of a lawyer. Best of luck, wish you a bright career.