Moosajees Ltd. v. Ftasiah
M/s. MOOSAJEES LIMITEDv.
COURT OF APPEAL.
MOONEMALLE, J. AND BANDARANAYAKE, J.
L.T. No. 2/13167/80.
NOVEMBER 20, 1985.
Industrial Disputes Act – S. 318(1) – Termination of services of probationer within theprobationary period.
A probationer has no right to be confirmed in his post and the employer is not bound togive any reason as to why he does not confirm the probationer. The employer is the solejudge to decide whether the services of a probationer are satisfactory or not. Theemployer is not bound to show good cause where he terminates the services of aprobationer at the end of the term of. probation or even before the expiry of that period.The tribunal cannot sit in judgment over the decision of the employer. It can examine thegrounds of termination only for the purpose of finding out whether the employer hadacted mala fide in doing so.
Cases referred to:
RichardPeiris & Co., Ltd. v. Jayatunga-C. A^404/80. C. A. Minutes of 9.9.1982.
Venkatacharya v. Mysore Sugar^To., Ltd.-High Court Mysore Decisions (1956).
Cattex India Ltd. v. Second Industrial Tribunal-High Court, Calutta (1963) L.L.J.156.
Upper Ganges Valley Electricity Co., Ltd. V. Their Workmen-Cited in W. E. M.Abeysekera: Industrial Law and Adjudication, Vol. 2, p. 686.
APPEAL from judgment of the Labour Tribunal.
R. P. Goonetilleke with G. D. D. Piyasiri for respondent-appellant.
Motilal Nehru for applicant-respondent.
Cur. adv. vult.
January 1 7, 1986.
The applicant was appointed Assistant Manager. Exports in theemployer respondent's company on 1st November 1979 on sixmonths probation. The letter of appointment is marked R1. He
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assumed duties on 16th November 1979. The employer respondentterminated his services after four months probation with effect from13th March 1979. as his service with the Company was totallyunsatisfactory and far below the standard required, and his standardof correspondence in English was unsatisfactory.
The applicant made an application to the Labour Tribunal praying forinter alia reinstatement with back wages and compensation for loss ofcareer resulting from unjust termination.
The learned President by his order dated 3rd February 1982 heldthat the services of the applicant had been terminated without goodcause and ordered the respondent to deposit the sum of Rs. 15,000(one year’s salary at Rs. 1,250 per month) with the AssistantCommissioner of Labour. Colombo South in favour of the applicant.This appeal is from that order.
Learned counsel for the respondent-appellant submitted that aLabour Tribunal could give a probationer relief on the ground of unjust. termination only if he establishes that his services were terminatedmala fide. He submitted that the employer need not show good causefor the probationer’s termination. He cited in support the judgment ofAbdul Cader, J. in the unreiSorted case of Richard Peiris and Co.. Ltd.v. Jayatunga (1). He submitted thar the finding of the learnedPresident that the services of the applicant-respondent could not beterminated before the expiry of his probationary period withoutassigning justifiable reasons is wrong in law.
Learned counsel for the applicant respondent submitted that astermination has been admitted in this case, the burden was on therespondent-appellant to establish that the termination was just andlawful. He submitted that the judgment of Abdul Cader, J. in RichardPeiris & Co., Ltd. v. Jayatunga (supra) is not applicable to this case.He submitted that it is the duty of the Tribunal when an application ismade under section 31 (B) (1) of the Industrial Disputes Act to makeall inquiries and hear evidence and then make a just and equitableorder. He further submitted that the learned President was correct inarriving at the finding that the termination of the services of theapplicant-respondent was for no good cause and that his findingswere based on pure questions of fact.
Moosajees Ltd. v. Rasiah (Moonemalle. J.)
In the case of Richard Peiris and Co., Ltd. v. Jayatunga (supra) theapplicant was employed on a period of probation for one year and hisservices were terminated 1 5 days before the expiration of thestipulated period of one year. He applied to the Labour Tribunal forrelief on the ground that the termination was not justified as thetermination of the services had been done without due cause, reasonor excuse. The learned President held that the termination of theservices of the applicant before the entire probationary period wascompleted was not justified and ordered the respondent to pay theapplicant one year's salary as compensation.
The question that arose for decision in that case was whether theemployer could have terminated the services of the applicant beforethe expiration of the full period of probation, and if the employer didso, whether the employer should show sufficient cause for that courseof action. Abdul Cader, J. did not express an opinion as regards theIndian authorities cited as it was conceded that the determinationshould be for relevant reasons and not on arbitrary grounds, and if thereasons given are irrelevant then mala fides can be inferred, in whichevent the workman may be entitled to compensation.
However, Abdul Cader, J. held in that case that any employershould have the right to discontinue a probationer if he does not comeup to the expectations of the employer. He further held that in thecircumstances of that case as there was no mala fides on the part ofthe employer and as the applicant had not come up to expectations ofthe employer, the employer did no wrong in discontinuing the servicesof the applicant.
In the case of Venkatacharya v. Mysore Sugar Co., Ltd. (2), thequestion arose whether a period of probation for one year could be cutshort by the exercise of the employer's option to terminate theservices before the expiration of the specified period of one yearVenkataramaya, J. stated:
"If as urged for the plaintiff the expression on probation for oneyear' entities him to be employed for one year, irrespective of thewishes of the defendant, the words on probation' will besupefluous and meaningless. Such a construction will perhaps placehim even in a better position than a person appointed without thatcondition though ordinarily the absence of the condition implies thatthe appointment is permanent in the sense of not being liable to bebrought to an end by the will of the employer"
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"Obviously a probationer is not in the same position as others inservice. He is in a state of suspense with the uncertainty of aninchoate arrangement. Prima facie his rights and claims against theemployer are less than those of others. Probation cannot be taken tobind the parties to be employer and employee till it is over andconfer on the employee rights not available to others. That would becontrary to the accepted notions of service as 'probation' isunderstood to be a stage preparatory and prior to confirmation. It isnot disputed that the services of a person on probation can bedispensed with on grounds on which a person appointed without itcan be dismissed. While the two to that extent are on a par it ismore reasonable to imply a disability or disadvantage for a'probationer' than a privilege as against one who is not in probation.The period denotes the time up to which he will be on trial and notan assured duration of services. The plaintiff, it is conceded, couldnor have complained against the termination of services at the endof one year."
In Caltex India Ltd. v. Second Industrial Tribunal (3) the order of theTribunal that the employer had not acted in good faith and had notshown real or genuine cause for termination of services of theworkman, was set aside. It was stated in the judgment of the HighCourt:•
"Whether a probationerliad put in satisfactory service or not restswith the satisfaction of the petitioner company. That satisfactioncannot be objectively tested and an employer is not bound to giveany reason if he does not confirm a probationer on the expiry of theperiod of probationship."
A probationer has no right to be confirmed in the post and anemployer is not liable to give any reason as to why he does not confirmthe probationer.
The test to be applied in a case where claim is made forreinstatement of a probationer appears in the case of Upper GangesValley Electricity Co.. Ltd. v. Their Workmen (4) as referred to inIndustrial Law and Adjudication, Vol. 2, page 686 by Abeysekerawhich states as follows:
"We think that apart from the cases of victimisation, theManagement is the sole judge to decide whether the services of aprobationer are satisfactory or not. The tribunal in our opinion
Moosajees Ltd. v. Rasiah (Moonemalle. J.)
cannot sit in judgment over the decision of the Management in thematter of confirmation, where the Management in not confirminghim is not actuated by motives of victimisation or other ulteriormotives."
Having considered these decisions, I am of the view that aprobationer has no right to be confirmed in his post and the employeris not bound to give any reason as to why he does not confirm theprobationer. The period of probation is a period of trial, during which,the probationer's capacity, conduct or character is tested before he isadmitted to regular employment. For the purpose of confirmation, thepetitioner must perform his services to the satisfaction of hisemployer. The employer, therefore, is the sole judge to decidewhether the services of a probationer are satisfactory or not. Thus, theemployer is not bound to show good cause where he terminates theservices of a probationer at the end of the term of probation or evenbefore the expiry of that period. If the employer could terminate theservices of a probationer at the expiry of the term without showinggood cause, I do not see why good cause should be shown where heterminates the services of the probationer during the period olprobation. The tribunal cannot sit in judgment over the decision of theemployer in either instance. It can examine the grounds for terminationonly for the purpose of finding out whether the employer had actedmala fide in doing so.
In the instant case, the Aspondent appellant had terminated theservices of the applicant respondent as his performance of work wasunsatisfactory and fell below the standard required in the respondentappellant's Export Department. The learned President has erred inarriving at the finding that the services of the applicant respondentcould not be terminated before the expiry of his period of probationwithout the respondent-appellant assigning justifiable reasons. Therespondent appellant was not bound to give any reasons for thetermination of the services of the applicant-respondent and theTribunal could not sit in judgment over the decision of the respondentappellant. The Tribunal could have examined-the grounds fortermination only for the purpose of finding out whether the respondentappellant had acted mala tides in doing so. In the present case, therehas been no allegation of mala fide on the part of the respondentappellant. The learned President has then not considered the fact thatthe respondent-appellant has acted in good faith in terminating theservices of the the applicant-respondent. In the absence of mala fides
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on the part of the respondent-appellant, no reinstatement or paymentof compensation for loss of career would arise. In any event, thelearned President's finding that the services of theapplicant-respondent had been terminated without good cause isuntenable. The learned President was of the view that the reasonsgiven for the termination of the services of the applicant-respondentare far too trivial to be considered as being sufficient for thetermination.
The nature of the duties entrusted to the applicant-respondent wasthat he had to do day to day shipping and to attend to freight mattersconnected with the export orders and register them in the contractbook and then follow the order in consultation with the factory, andsee that the order is executed during the correct period. Witness H. A.David, the shipping manager of the appellant-company stated that theapplicant-respondent was not familiar with freight calculations. Hepointed out that he had asked the applicant-respondent to calculatethe freight in contract No. 479 and that he had made mistakes andentered the wrong freight in the contract book (R2).
Then in contracts numbers 481 and 487 the applicant-respondenthad given freight miscalculations which had to be corrected. Then incontract No. 478 he had misspelt the Port Lehavre, which is aprincipal Port in France, as Alehavra. Witness David stated that if thereis a mistake in a contract, the Respondent-appellant would be chargedfor.defrauding the contract bj,v the buyer. Thus, these mistakes cannotbe described as too trivial for terminatior%of services of a probationer.The applicant-respondent no doubt had attended to 41 contracts butit is fortunate that these mistakes had been detected and corrected,before the contracts were finalised. Witness David also stated that hebrought these mistakes to the notice of the applicant-respondent andhad verbally warned him several times but there had been no markedimprovement in his work. The learned President erred in his findingthat a warning should be given in writing to a workman who is foundwanting in his work. There is no law which requires that an employeeshould be forewarned in writing so that he may adjust himself to therequirements of his service. The learned president also erred in hisfinding that as the applicant-respondent was a graduate in commerceand witness David had only a G.C.E.qualification that he did not thinkthat witness David was in a position to make a pronouncement on theknowledge of. English of the applicant-respondent. In today's context,a G.C.E qualified ^person may very well be more conversant andknowledgable in English than the holder of a commerce degree.
Moosajees Ltd v. Rasiah .(Moonemalle, J.)
I hold that as there has been no mala tides on the part of therespondent-appellant, and as the applicant-respondent was notputting in satisfactory service to the satisfaction of therespondent-appellant, no wrong has been done by therespondent-appellant in terminating the services of theapplicant-respondent. I"set aside the order of the learned Presidentand I allow the appeal without costs.
BANDARANAYAKE, J. – I agreeAppeal allowed.
1-M,s . MOOSAJEE LIMITED v. RASIAH