DE K.RETSER, J.—Hatton Transport Agency Co. Ltd. v. George
1969Present: de Kretser, J.
HATTON TRANSPORT AGENCY CO. LTD., Appellant, andR. GEORGE, Respondent
S. C. 132J67-.Labour Tribunal Case No. 10/487
Industrial Disputes Act (Cap. 121)—Section 2111 (/)—Designation of his services byemployee—Acceptance by employer—1light of the employee to claim retiringgratuity subsequently—Definition of “ workman ” in s. IS.
Where on cmployco whoso resignation from service on grounds of ill-health,had been accepted by his employer made an application subsequently underSection 3IB (I) of tho Industrial Disputes Act for an order for a reasonabloretiring gratuity in addition to the sum which ho had already drawn fromthe Provident Fund when ho retired—
Held, that the Labour Tribunal had jurisdiction to grant tho application.,In such a case it cannot bo contended that, a Labour Tribunal has no jurisdictionto hoar an application made by nn employee whoso services had been terminatednot by his employer but by himself with the. permission of tho employer.
“ It is open to a workman on termination of his services with his employerfor any reason whatsoever to raise tho question whether or not in the particularcircumstances of that termination it is not just and equitable that a gratuityshould bo paid to him. ”
Appeal from an order of a Labour Tribunal.
11. V. Perera, Q.C., with S. Sharvananda and Isidore Fernando, for the •employer-appellant.
N. Satyendra, with K. Vaihuntharasan, for the applicant-respondent-
R. S. Wanasundera, Senior Crown Counsel, with K. M. B. Kvlatunga.,Crown Counsel, as amicus curiae.
Cur. adv. vult.
February 7, 1969. de Kretser, J.—
R. George was in the employ of Messrs Hatton Transport Agency Co.Ltd., from 1935 when he started off as a daily' paid mechanic to19G7 when he was the foreman having obtained that appointment inFebruary 1965. On the 14th of December 1966 he wrote to the Company'intimating that he u'ished to retire from its service on the grounds of'ill-health with effect from 28.2.67 and the Company' replied to himon 16.12.66 informing him that Jus resignation had been accepted by' theCompany and would be effective from 1.3.67. George accordinglyretired on the 1st of March 1967 and was paid a sum of Rs. 9S2‘40 centswhich had been ly-ing to his credit in the Provident Fund.
On the 10th of May 1967 George made this application to the Labour-Tribunal at Hatton under section 31B of the Industrial Disputes Actasking the Tribunal to be pleased to make an order for a reasonable
DE IvRETSER, J.—Hatton Transport Agency Co. Ltd. v. George
retiring gratuity. The Company filed answer on the 25th of May I9G7and took up the position that George having retired from 1st March 1967and having drawn the sum of Rs. 982 40 cents which was to his credit in theProvident Fund could not have and maintain this application before theLabour Tribunal, and that the Labour Tribunal had no jurisdictionto entertain it. At the inquiry wliich took place before Mr. E. A.Wijekulasuriya the President, the preliminary objection was taken that aLabour Tribunal has no jurisdiction to hear and entertain an applicationmade by a person whose services had not been terminated by the employer.The President after hearing argument on both sides decided that he hadthe jurisdiction to entertain, hear and make an order on the application■and going into to the merits ordered the employer to pay a sum ofRs. 2,470 to the applicant.
The employer Company has appealed. For the purpose of this orderthe object and intention with which Labour Tribunals were set uploom large, and I therefore quote from the judgment of Lord Guest■and Lord Devlin in United Engineering Workers' Union v. Devanayagain1reported in 69 N.L.R. at page 304 which sets out the reasons for the need forthe machine^ to enable an individual workman to obtain a remedy againsthis employer and how it was sought to be met by the setting up of LabourTribunals. The Industrial Disputes Act 1950 “employed the knownways of settling the ordinary trade dispute. But it did not include anysimple way of remedying a grievance wliich an individual workman mighthave against his employer. Suppose, for example, that a workman wasdismissed with such notice as the common law thinks reasonable butwliich a fair-minded employernowada3’s probably accepts as inadequate ;or suppose he was dismissed because of reduction in the labour force butwithout the ex gratia payment which a reasonably generous employer-would nowadays think appropriate. The aggrieved workman in sucha case could seek the help of his Trade Union which could threatenindustrial action. Then there might be a reference which might resultin the workman obtaining better treatment and in an award to governsimilar cases in the future. But there might be no question of principleinvolved calling for a general award ; the case might involve nothingmore than a decision on what was the fair thing to do in the particularcircumstances. A swift way of dealing with an individual grievancewithout calling out the whole force of trade unionism would certainlyhelp to promote industrial peace. It was supplied by an amending Actof 1957. This Act enlarged the definition of industrial disputes so asto make it clear that it included a dispute or difference between anindividual employer and an individual workman. It inserted into theAct a new part, Part IV A, entitled ‘ Labour Tribunals ’. The functionof the Labour Tribunals is to entertain applications by a workman forrelief or redress in respect of such matters relating to the terms ofemployment or the conditions of labour as may be prescribed. The■particular matters specified in the Act are those wliich we have already
>(1007) 60 N. L. It. at p. 30L
DE KRETSER, J.—Hatton Transport Agency Co. Ltd. v. George
mentioned by wav of example, namely questions arising out of thetermination of the workman’s services and relating to gratuities or otherbenefits payable on termination. On such matters the Tribunal is tomake order as may appear to it to be just and equitable. ”
In the questions arising out of the termination of the workman’sservices and relating to gratuities or other benefits payable on terminationwas it the intention of the legislature to concern itself with only theremedying of grievances'that arise in consequence of termination ofservices by an employer ? That it was, is the main plank on which thecontention of the Company in this case rests.
Section 31 B (1) which has been described by Viscount Dilhorne inthe case I have already quoted from as “ the gateway' through whicha workman must pass to get his application before a Tribunal ”, readsas follows:
A workman or a trade union on behalf of a workman who is a memberof that union, may make an application in writing to a labour tribunalfor relief or redress in respect of any of (lie following matters :—
the termination of his services by his employer ;
t-he question whether any gratuity or other benefits are due to
him from his employer on termination of his services, andthe amount of such gratuity and the nature and extent of an}7such benefits ;
such other matters relating to the terms of employment-, or the
conditions of labour, of a workman may be prescribed.
The submission on behalf of the Company in this case is that the phrasetermination of sen-ices must be read as referring only to termination ofservice by an employer. It is submitted that clause B must be read asancillary to clause A which refers to termination of services by an employer.Apart from the submission that to so interpret the section is to give effectto the intention of the legislature support for such an interpretation issought in the fact that by the amending Act which brought into existenceLabour Tribunals, the definition of workman found in section 48 of theIndustrial Disputes Act was amended by the addition of the words‘‘and for the purposes of any proceedings under this Act in relationto any industrial dispute, includes any person whose services have beenterminated ”.
The use of the passive voice (have been terminated) it is submittedshows that it was the intention of the legislature to give relief only toworkmen who had grievances in consequences of their services having beenterminated by employers for where workmen terminated their ownservices they' could not be described as persons whose services have beenterminated without some violence to the English language. I am notimpressed with this submission for it seems to me that if the legislaturewas concerned, as it appears to me it was, with giving relief to workmen
DE KRETSER, J.—Hatton Transport Agency Co. Ltd. r. Georgi
who had grievances which flowed from the termination of their servicesand was not concerned with how that termination came about, itwould decide to include any person whose services had been terminated-in the category of those to whom reh'ef should be given and that isexactly what the amending Act has done in reference to the definitionof workmen.
The termination of services by an employer was no doubt one of thecauses of dispute or grievance between the individual workman and hisemployer, and may well have been the most prolific cause and thereforethe one that focussed the attention of the legislature on the need for themachinery to redress such a dispute but I find it impossible to accept thesubmission that the legislature when it did bring in the necessarylegislation did not intend to deal with all matters in which the individualgrievance could tend to disturb Industrial Peace but confined its intentionin regard to grievances arising out of the termination of services to thosearising out of termination of services by the employer. Part IV (a) of theAct 62 of 1957 which established Labour Tribunals gives evidence of thewider intention for section 31 B (1) (c) shows that it was intended thatLabour Tribunals should deal with applications for relief relating to termaof employment or conditions of labour as may be prescribed—the factthat up to date none have been prescribed does not take away from thepoint.
No reason is urged nor can I find one, why a distinction should be drawnbetween the workman whose services had been terminated and—if thecontention of the appellant is sound—therefore qualified under clause (6)to raise a question as to whether a gratuity was or was not due, and theworkman whose services had been terminated by determination of thecontract in its agreed terms or by the resignation of the workman, inreference to the same question. If that contention is sound therecould arise the absurd position that in regard to two workmen servingon identical terms of service under one employer the one by reason of thefact that the employer terminated his services causing no grievance tohim at all in that respect, could raise a question as to whether it was notjust that he should be given a gratuity though it was not provided forin the contract, while th*» other who resigned with the permission of theemployer could not in as much as it was not the employ’d- who terminatedhis services.
No reason is given why the legislature should permit the possibilityof an employer who wished to avoid paying a gratuity goading workmeninto resignation with that object in view.
Once the basis for claiming that termination of services by an employerwas the “ open sesame ” to claiming relief in matters arising out oftermination of services is shown to be unsound in that that was not theintention of the legislature, there is no reason at all to claim that clause
of 31 B (1) is ancillary to clause (a) if indeed the word “any” used insection 31 B (1) in reference to the matters on which application could
E>E KRETSER, J.—Ballon Transport Agency Co. Ltd. i George
be made to the Labour Tribunal did not put that position beyond question.Mr. Wanasundara C. C. appeared as amicus. He pointed out the absenceof the word “such ” between the words “from his employer on ” andthe words “ termination of services ” in clause (6) as a pointer to the factthat that clause is not dependent on clause (a). I entirely agree.
Viscount Dilhorne has commented on section 31 B (1) (b) as follows:
“ Section 31 B (1) (b) is curiously worded. It docs not say that aworkman can apply for a gratuity or other benefits legally due to himbut that he can apply in respect of the question whether they are due.The question is one for the Tribunal to determine and in the light ofsection 31 C (1) to decide on the basis of what appears to be just andequitable. If section 31 B (1) (b) stood alone then the words ‘ are due ’might be interpreted as meaning ‘ are legally due ’ but this sub-sectionmust be read with 31 B (4) and 31 C (1) and reading it with thosesubsections it is clear that t he Tribunal’s decision is not to be whethera gratuity or other benefit is legally due but whether it is just andequitable that it should be paid. It is not whether it is legally due butwhether it ought to be paid that the Tribunal is required to decide. ’’
It would be a very strange state of affairs indeed that it should be-openonly to a workman whose services had been terminated by his employerto enjoy such a privilege. In my opinion it is open to a workman ontermination of his services with his employer for an3r reason whatsoeverto raise the question whether or not in the particular circumstances ofthat termination it is not just and equitable that a gratuity should bepaid to him. No doubt, the Tribunal dealing with the applicationwould take into account the reasons for the termination in deciding thequestion. In the instant case the question of whether on the facts thetermination of the contract was not by the employer in that it was theemplo3-er who b}r accepting the resignation of the workman terminatedthe contract of service, was raised before the President but he did notdeal with that aspect of the matter probably because it was not pursued,and Mr. Satyendra who appeared for the respondent commented oil itonly in passing for his submission was that the applicant respondentwas entitled in any event to come under section 31 B (1) (b). I there-fore do not go into that aspect of the matter or into the interestingquestion of whether there can ever be a termination of a contract ofservice by the unilateral act of the emploj’ee and whether while it maybe the emploj’oe who provides the cause for the termination it is not theemployer who by taking action on that cause terminates the contract.
For the reasons that I have set out I am of the view that the applicant. was entitled to make the application he did and that the President wasright in holding that he had the requisite jurisdiction to entertain it.The appeal is dismissed vitli costs.
HATTON TRANSPORT AGENCY CO. LTD., Appellant, and R. GEORGE, Respondent