SUPREME COURTFERNANDO, J.
DHEERARATNE, J. ANDGUNASEKERA, J.
SC APPEAL NO. 24/2000HC CASE NO. HCRA 1387/99LT CASE NO. 13/1937/971st DECEMBER, 2000
Industrial dispute – Employment on annual contract – Termination ofservice without extention – Imposition of probation after some time ■Employer's claim that the employment was probationary at termination- Fdilure of the workman to admit or deny probationary employment -Burden to begin adducing evidence to establish unjustifiabletermination.
The applicant workman (the applicant) was employed by the appellant -employer (the employer) from 1993 to 1997 on annual contracts renewableentirely at the discretion of the employer. In 1997 the employer informedthe applicant In writing that he was placed on probation for a period of 3months for evaluation of his performance of the specific duties assignedto him, scheduled to end on 30.9.1997. That period was extended until31.10.1997 as the applicant was alleged to have delayed in completing thework assigned to him. By letter dated 6.10.1997 the employer terminatedthe applicant's services on the ground that he had failed to show progressin his performance.
Before the Labour Tribunal, the employer filed answer inter alia, statingthat the applicant had failed to comply with instructions given while hewas on probation and since no improvement was shown his services wereterminated.
The applicant in his replication neither admitted nor denied the employer'saverments that he had been placed on probation, which he had accepted,nor did he dispute the receipt, authenticity or contents of the supportingdocuments produced.
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Upon proof that termination took place during probation, the burdenis on the employee to establish unjustifiable termination, and theemployee must establish at least a prlma facie case of mala fidebefore the employer Is called upon to adduce evidence as to his reasonsfor dismissal; and the employer does not have to show that the dismissalwas, objectively, justified.
The question before the Labour Tribunal at the commencement ofproceedings was not whether the employer could Impose probationafter four successive annual contracts but a limited question, viz.,who should begin on the available material, subject to a decision atthe end of the case, whether or not the imposition of probation wasjustified. The applicant would have failed If neither party adducedevidence. Therefore, the burden was on the applicant to begin.
Per Fernando, J.
"While it is true that the Tribunal is not bound by the EvidenceOrdinance, that enactment contains certain basic principles of justiceand fairness relevant to adjudication by any tribunal. One commonprinciple is found In section 102, that the burden of proof lies on thatperson who would fall If no evidence at all were given on either side.There Is no good reason for departing from that principle."
Case refered to :
1. State Distilleries Corporation u. Rupaslnghe (1994)2 SRI LR 395
APPEAL from the Judgement of the High Court
G.T. Alagaratnam with M. Adamally and R. Anthony for the employer –
S.N. Vijlthsingh for the applicant-respondent.
Cur. adv. vult.
February 12, 2001FERNANDO, J.
The question of law which 1 have to decide In this appeal iswhether in the Labour Tribunal the burden lies on an applicant
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to begin and lead evidence where he has failed to deny theemployer’s plea (in the answer) that he was dismissed while onprobation.
The Applicant-Respondent-Respondent “(the Applicant)"applied to the Labour Tribunal on 22.10.97, averring that hehad been employed by the Employer-Petitioner-Appellant “(theEmployer)” as a “Grants Programme Accounts Specialist” from1.7.93. and that his services had been wrongfully terminatedby letter dated 6.10.97.
By his answer dated 21.11.97 the Employer pleaded thatthe Applicant had been employed on successive yearly contracts.Seven documents were annexed to the answer.
The first was a detailed contract dated 26.6.93 signed byboth parties, effective 1.7.93, which stated:
“The post will be on a yearly renewable contract basis andsuch renewal will solely depend on the satisfactoryperformance of the duties entrusted to you."
This was followed by another (undated) detailed contract,also signed by parties, which provided:
“your appointment is for a period of one year from 1.7.94and shall automatically terminate on 30.6.95 unless soonerdetermined … or renewed for a further period . . . Suchrenewal is entirely at the discretion of the (Employer) andunless so renewed . . . your employment. . . will terminateon 30.6.95.”
After that the Employer issued two renewal letters dated1.7.95 and 1.7.96. each extending the contract for a furtherperiod of one year, “all other terms and conditions mentionedin the said contract (remaining) unchanged.”
Thereafter the Employer informed the Applicant by letterdated 17.7.97:
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“. . . you will be placed on a probation period of 3 monthseffective 1.7.97 – 30. 9.97 to enable the Management toevaluate the improvement in the performance of the specificduties assigned to you in your capacity as GrantsProgramme Accounts Specialist.
Depending on your performance during the probationperiod, it would be decided whether your employmentcontract should be extended for a further-period of one year.
This, it was averred, was “due to poor performance andrefusal to perform duties assigned” to him.
Finally, on 30.9.97 the Employer wrote:
“Your probation period is scheduled to end on 30.9.97.However, I must extend your probation period one moremonth until 31.10.97. The reason for this extension is thatyou have not yet completed the reconciliation of the grant,disbursement data. Part of the delay is due to illness andyour computer breakdown. However, we must have the grantdisbursement data reconciled and completely reviewedbefore we can review your probationary status. One moremonth should be sufficient for this.”
Less than a week later, by letter dated 6.10.97 the Employerterminated the Applicant's services, with one month’s salary inlieu of notice, giving as the reason that:
“. . . you have failed to show progress in your performanceduring the probation period and have also refused to adhere toinstructions and requests made by the Management pertainingto your work performance.”
On 11.2.98 the Employer filed a further answer, averringthat:
“Since the Applicant’s performance and attitude to workwas unsatisfactory, he was issued another contact but wasoffered work on probationary basis on 1.7.97 which he
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accepted, and his initial period of three months probationwas extended by a further month as his performance duringprobation had not improved and because he had failed onnumerous occasions to carry out instructions given to him."While the Applicant was on probation, and since noimprovement was seen in his performance and/or conduct,his services at the project were terminated by letter dated6.10.97”
The Applicant filed a replication dated 12.2.98. He referredto one matter extraneous to the present dispute, but failed eitherto deny the Employer’s averments that he had been placed onprobation (and the reasons therefor) which he had accepted,and that he had been terminated during probation, or to disputethe receipt, the authenticity or the contents of any of thedocuments produced. No application was made to amend thatreplication.
When the application was taken up for inquiry the Tribur; !had to decide which party should begin. The President observedthat the Employer’s plea that the Applicant was a probationer“goes to the root of jurisdiction of the Labour Tribunal" and“challenges the jurisdiction of the Labour Tribunal,” that “thisquestion of probation (was) a mixed question of fact and law;”that the factual position could be determined only after thewitnesses gave evidence; and that therefore he was not inclinedto accept the position of either party as to the status of theApplicant. Having regard to section 31 C( 1) of the industrialDisputes Act – which provides that “it shall be the duty of theTribunal to make all such inquiries into (an) application andhear all such evidence as the Tribunal may consider necessary”he held that the Employer must begin and lead evidence.
The Employer filed an appeal as well as an application inrevision in the High Court of the Western Province. The partiesagreed that the order made in the revision application wouldapply to both proceedings.
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The High Court held that what was averred by the Employer“are facts that should be considered after an inquiry onwhatsoever the material that is placed before the Tribunal. Thereal question that arises. . . is as to who should begin.” Thatwas a matter of procedure, and was therefore governed by section31C(2), which empowered a Labour Tribunal to lay down theprocedure to be observed by it in the conduct of an inquiry.Citing section 31C( 1) too, the High Court affirmed the order ofthe Labour Tribunal.
In the course of the proceedings in the High Court, theApplicant produced certain documents which could have been,but were not, produced in the Labour Tribunal. I have not takenthose into consideration in deciding this appeal because thecorrectness of the Labour Tribunal order must be determinedin the light of the material which was available to it.
This Court granted special leave to appeal on the question“whether the learned judge of the High Cotut was in error inover looking the fact that the (Applicant) was a probationer indeciding whether the procedure adopted by the President ofthe Labour Tribunal was appropriate in the circumstances.”
Although in the past the view has sometimes been expressedthat an employer had an unfettered right to dismiss aprobationer, almost at will, the better view is that even aprobationer can challenge his dismissal, albeit on limitedgrounds. Many of the previous decisions were reviewed by mein State Distilleries Corporation v. Rupasinghe,11’ where Iobserved:
“What then is the principal difference between confirmedand probationary employment? In the former, the burdenlies on the employer to justify termination; and he must doso by reference to objective standards. In the latter, uponproof that termination took place during probation, theburden is on the employee to establish unjustifiabletermination, and the employee must establish at least a
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primajacte case of mala fide before the employer is calledupon to adduce evidence as to his reasons for dismissal;and the employer does not have to show that the dismissalwas, objectively, justified.”
Both Counsel agreed with those observations. LearnedCounsel for the Applicant conceded that if an Employeeadmitted that he was dismissed while on probation, then theburden would be on him to begin. Learned Counsel for theEmployer conceded that if an Applicant denied probation, theEmployer would have to begin. However, in this case there wasno express admission or denial of probation.
It was contended for the Employer that since the Applicanthad failed (in his replication) to deny probation, he must bedeemed to have admitted probation. Accordingly, the burdenwas on him to begin and lead evidence.
That position was strenuously disputed by Counsel for theApplicant. He made two distinct submissions. Firstly, he citedtwo decisions (in actions filed under the Civil Procedure Code)where it was held that the failure to file a replication could notbe construed as an admission of averments in the answer.Secondly, he argued that a probationary clause could not havebeen introduced (a) after the Applicant had worked for fouryears, and (b) because by permitting the Applicant to work forseventeen days after the expiration of the fourth contract, hiscontract had already been impliedly renewed for another yearwithout a probationary clause.
The Industrial Disputes Regulations provide for an applicantto file a response to the Employer’s answer. While I agree that,in general, the failure to file a replication in the Labour Tribunal,ought not to be treated as an admission of averments in theanswer, the position would be different where a replication wasfiled without denying relevant averments. Although strict rulesof pleading do not apply in Labour Tribunal proceedings,pleadings are necessary, and do serve an important purpose -to identify the matters really in issue between the parties, thus
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enabling, on the one hand, each party to know with a reasonabledegree of certainty the case which he has to meet, and, on theother hand, the Tribunal to inquire into the real dispute withoutunnecessary delay, inconvenience and expense.
As for the Applicant’s second submission, it is true that theimposition of a probationary period after four successive annualcontracts was most unusual. However, it is not inconceivablethat the factual situation might have justified probation as analternative to non-renewal or dismissal. While it is possible that,at the end of the case, after hearing all the evidence, the Tribunalmay uphold that submission, it is not proper to rule on it at theoutset.
The question which I have to decide is not whether theApplicant was indeed a probationer – because of a bindingadmission as to probation, or upon an interpretation of thedocuments produced, or for some other reason – but a muchmore limited one: who should begin? (And, I must add, that isa question which does not affect the jurisdiction of the Tribunal).
Undoubtedly, sections 31(0(1 )and(2) do give the Tribunalsome discretion as to procedure. However, that discretion mustbe exercised not arbitrarily, but reasonably, with some degree ofuniformity, and in a principled manner: with the overridingobjective of ensuring a fair and expeditious inquiry. While it istrue that the Tribunal is not bound by the Evidence Ordinance,that enactment contains certain basic principles of justice andfairness relevant to adjudication by any tribunal. One commonsense principle is found in section 102: that the burden of prooflies on that person who would fail if no evidence at all weregiven on either side. There was no good reason for departingfrom that principle.
Let me add that that principle is the foundation of the cursuscuriae in the Labour Tribunal where termination (of confirmedemployment) is not admitted. In such cases the applicant mustbegin. Why? Because if no evidence at all were given on either
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side, on the material available to the Tribunal, it is the applicantwho would fail.
When the Tribunal was called upon to give its ruling in thiscase, it was faced with the Employer’s uncontradicted avermentsas to dismissal during probation, as well as documents to thesame effect, whose authenticity and contents had not beenquestioned. If neither party had then adduced evidence, theTribunal could not have held – on the then available material -that the Applicant was not on probation when dismissed, orthat prima Jade the dismissal was mala fide. Accordngly, theApplicant would have failed. Therefore, the burden was on himto begin, and the Labour Tribunal and the High Court shouldhave so ruled. I
I therefore allow the appeal, and set aside the orders of theLabour Tribunal and the High Court. The Applicant will beginand lead evidence. The parties will bear their own costs.
DHEERARATNE, J.1 agree.
GUNASEKERA, J. – I agree.
ANDERSONG v. HUSNY