ALLES, J.—Baddcgama Tea Small Holders' Co-operative Society Ltd.
1969Present: Alles, J.
BADDEGAMA TEA SMALL HOLDERS' CO-OPERATIVESOCIETY LTD., Appellant, and U. L. EMALIN, Respondent
S. G. 10S/6S—Labour Tribunal, No. C/352G
Labour Tribunal—Termination oj female employee's services on the ground that shehas reached retiring age—Burden of proving lawful termination—Employees'Provident Fund Act, -Vo. 15 of 195S, s. 10 (/).
Where (he services of a fcmalo employee to whom seel ion 10 (1) of thoEmployees’ Provident Fund Act is applicable uro terminated on tho groundthat sho has reached tho age of SO years, tho burden of proving the retiring ageof tho employee is on the employer.
^_Pi’EAL from an order of a Labour Tribunal.
IF. Alhulalhnmdali, for the employer-appellant.No appearance for the applicant-respondent.
Cur. adv. vult.
October 19, 1969. Alles, J.—
The only issue that arises for consideration in this appeal is, whetherthe learned President arrived at a correct conclusion when he held thatthe services of the applicant-respondent were unlawfully terminated.The respondent was eniplo3'cd as a factory worker under the appcllant-Socicty for about four years, when, according to her, her services wereterminated by letter A2 dated 12th June 1967, which gave her noticethat the Board of Management of tlie Society had taken a decision toretire her from the end of that month, on the ground that she had reachedthe age of 50 years. According to the Secretary of the Socictj' this wasdone in pursuance of a practice in the institution that work was notto be given to females who had passed the age of 50 years. Incross-examination the Secretary also said that there was also a code ofregulations which gave effect to this practice.
The evidence with regard to the age of the applicant-respondent atthe time of discontinuance is extremely meagre. The applicant- wasunable to produce her birth certificate and she stated that she gave herago from her horoscope at the time she filled the forms for the purposeof the Employees Provident Fund. The learned President in acceptingthat her age was under 50 on the date- of termination has relied on acopy of a letter sent- to Neal de Alwis, the Member of Parliament forBaddcgama by the Commissioner of Labour marked Al. According to
72 ALLES, J.—Baddcgama Ted Small Holders' Co-operative Society Ltd.
A1 the age of the respondent at the time she became a contributor tothe Employees Provident Fund was given as 45 years and the date ofbirth as 15th March 1920. It was also stated in A1 that tlie respondentwould complete her 50 years on loth March 1970.
The burden of proving the lawful termination of the respondent’sservices was on the appellant-Society. If there was a practice whichpermitted the employer to terminate the services of a female employeeon reaching the age of 50, it was incumbent on the employer to placeevidence before the Tribunal, documentary or otherwise, that the termi-nation was lawful as a result of the employee reaching the retiring age.If there was a practice in existence or a regulation to that effect onewould have expected the employer to have some record of the employee’sage at tire time of employment. This becomes all the more necessary inview of the provisions of the Employees’ Provident Fund Act No. 15 of1958. The proviso to Section 10 (1) states that male employees who haveattained the age of 55 and female employees who have attained the ageof 50 shall not be liable to make contributions to the Fund. When, there-fore, an employer commences to make deductions from the employee’swages for the purposes of the Fund it would be necessary for him tohave a record of the age of his employees. This burden being on theemployer he has failed to discharge it in this case. On the contrary inview of Al, it would appear that the employer was in error in terminatingthe services of the respondent prematurely'. The Secretary admittedthat he had experience of maintaining the books relating to the ProvidentFund and that the ages of the employees had to be furnished to theProvident Fund but he did not make an effort to ascertain the age ofthe respondent from the Department, before termination of therespondent’s services.
I am therefore of the view that the learned President was justifiedin making his order in favour of the respondent. The appeal is dismissedwithout costs.
BADDEGAMA TEA SMALL HOLDERS CO-OPERATIVE SOCIETY LTD., Appellant, and U. L. EMA