ELMO REX LORD AND ANOTHER, PARTNERS, MERCANTILEPRINTERS AND STATIONERS
v.EKSATH KAMKARU SAMITHIYA ON BEHALF OF SOMADASA
SUPREME COURTAMERASINGHE, J.
PERERA, J. AND EDUSSURIYA. J.
SC APPEAL 37/99
S.C.S.L.A. APPLICATION NO. 204/98H.C.A. L.T NO. 1357/96LT ADDITIONAL NO: 89/856th NOVEMBER, 2000
Industrial dispute • Termination of services – Probationary employment- Summary termination oj employment Jor continued absenteeism -Errors by the Labour Tribunal regarding findings ojfact – Errors by theHigh Court regarding evaluation of evidence.
The workman Somadasa was employed as a compositor in the printingbusiness carried on by the appellants-partners. He was appointed on7.11.1990 on probation for six months or such further period as may bedetermined by the employers. The letter of appointment informed himthat he will be advised on satisfactory completion of his probation periodending which inter alia, he will be subject to summary termination “forcontinued absenteeism in spite of written warnings".
In 1991 the workman was absent on 24 1/2 days for which he was warnedthat his service may have to be summarily terminated. In 1992 he wasabsent on 34 1/2 days. In 1991 and 1992 he was absent in all on 48 days,without prior leave to do so, except on 3 days. In the meantime he receivedsome increased wages not on account of improved service but by way ofmandatory statutory increases in the printing trade.
In 1992 while the workman was absenting himself from work the appellantswarned him that if such “intolerable" absence was repeated instanttermination may follow. Thereafter they watched his progress and whenhe had taken 34 1/2 days off in 1992 his probationary employment wasterminated with immediate effect.
The Labour Tribunal President disputed the exact number of days theworkman was absent and ordered reinstatement with Rs.40.000/= as backwages. At the hearing of the appeal counsel for the workman conceded thefact that the workman was absent as alleged. The High Court opined that
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12001) 1 Sri L.R.
the workman had not been warned In writing regarding his “work and
conduct" and affirmed the decision of the Labour Tribunal.
The findings of the Labour Tribunal were not supported by evidence;and the High Court erred In evaluating evidence In that the letter ofappointment refers specifically to absenteeism as a ground oftermination. In any event absenteeism cannot be separated from workand conduct.
The High Court erred In the evaluation of evidence particularly Inregard to the Issue of the letters of warning.
Case referred to :
Colombo Apothecaries Co. Ltd. v. Ceylon Press Workers Union (1974)
75 NLR 182
APPEAL from the judgement of the High Court.
Shirly M. Fernando and Ruwan PV. Dtas for appellants.
L.V.P Wettastnghe with Ms. Ganga Gunathllake for respondent.
Cur. adv. vult.
March 07, 2001AMERAS1NGHE, J.
The respondent, the Eksath Kamkaru Samithiya, was aTrade Union acting for and on behalf of one of its members. Mr.S. Somadasa. Somadasa was a compositor in the printing trade.He was employed by the appellants in their business as printerson the 7th of November 1990. His services were terminated bythe letter of the appellants dated the 17th of November 1992 onthe ground of absenteeism, despite warnings, while he was onprobation. The respondent complained against the terminationof Somadasa to the Labour Tribunal and sought relief. TheLabour Tribunal made order that Somadasa be reinstated fromthe date of the termination of his services and that he be paid asum of Rs. 40,000 as wages due to him from that date. Theappellants appealed to the Provincial High Court of Colombowhich affirmed the order of the Tribunal. The appellants thenapplied for special leave to appeal to this Court. Special leaveto appeal was granted on the following matters:
SC Elmo Rex Lord and Another, Partners, Mercantile Printers and Stationers 163
v. Eksath Kamkaru Samlthtya on Behalf of Somadasa (Ameraslnghe, J.)
Has the High Court erred in the evaluation of the evidence,particularly in regard to the issue of the letters of warningand the alleged failure to take disciplinary action againstthe other employees similarly placed?
In view of the findings of fact of the Labour Tribunal withregard to the matters set out in question 1, in any event willthe decision in this case be different?
Are the findings of fact of the Labour Tribunal regardingthe matters raised in question 1 supported by the evidence.”
The terms and conditions of Somadasa’s employment wereset out in his letter of appointment. He accepted the terms andconditions set out in that letter. The letter, among other things,stated as follows:
“In the first instance you will be on probation for a period ofsix months during which time your services may beterminated without notice for incompetence or dishonestyor Jot conduct detrimental to our business. We, however,reserve the right to extend the probationary period ofemployment for a further period to enable you to satisfy ourrequirements. On satisfactory completion of yourprobationary period of which you will be advised, thiscontract will be terminable with a month’s notice or paymenttherefor by either side. Also, your services may besummarily terminatedfor continued absenteeism in spiteof written warnings.”
The emphasis is mine.
On the 14th of October 1991 the appellants wrote toSomadasa pointing out that his record of attendance showedthat he had been absent on 29 1/2 days up to the end ofSeptember 1991. He was warned:
“Please note that this type of attendance is not acceptableto us and will be taken into account when assessing the
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amount of bonus. If any. In December 1991. Further, If youcontinue your irregular attendance, disciplinary acflon willbe taken, even to the extent of summarily terminating yourservices.”
On the 12th of February 1992, the appellants wrote toSomadasa stating that he had been absent on 35 1/2 days duringthe last year when his earned leave entitlement was only 1 day.He was warned:
“Please note that this record of absence is intolerable, andthat if it is repeated this year as well, it will merit the instanttermination of your employment. Your absence will be closelywatched, and if warranted, according to our opinion, yournext increment when falling due, will be deferred.”
On the 30th of April 1992, the appellants drew attention totheir two letters and stated that in the circumstancesSomadasa’s probationary period had been extended. Theywarned:
“if there is no improvement in your attendance, we shall becompelled to terminate your employment.”
On the 17th of November 1992, the appellants wrote toSomadasa referring to their previous letters, and concluded withthe following words:
“…You were not confirmed in your employment. Yourabsence up to date, 17th November, is 34 1/2 days againstan entitlement of only 14 days. In view of the above yourprobationary employment is terminated with immediateeffect.”
The learned Judge of the High Court came to the conclusionthat at no time had Somadasa been warned in writing withregard to his ‘work and conduct’. Learned counsel for Somadasamaintained that position was ‘factually correct’ since thewarnings had been in respect of ‘absenteeism’. The letter of
SC Elmo Rex Lord and Another, Partners, Mercantile Printers and Stationers 165
v. Eksath Kamkaru Samlthlya on Behalf of Somadasa (Amerasinghe, J.)
appointment refers specifically to absenteeism as a ground fortermination. The letters of warning too refer to the matter ofabsenteeism. In any event, absenteeism, in my view, cannot beseparated from ‘work and conduct’ in the circumstances of thecase as established by the evidence. Such a distinction wouldbe highly artificial. The Labour Tribunal disputed thecalculations of the appellalnts with regard to the exact numberof days when Somadasa was absent. Learned counsel forSomadasa In his written submissions however conceded thathis client was absent on 24 1/2 days In 1991 and on 34 1/2days In 1992. Absenteeism on such a scale may be Objectionable,but it reaches, in the words of the appellants, an ‘Intolerable’level when absence takes place in the manner chosen bySomadasa. The documents adduced In evidence show that hewas absent on some 48 days between the 13th of February 1991and the 16th of November 1992. In every Instance, except three,he was absent without prior leave to do so. In all of the otherinstances, his explanations for absence were made afterresuming duties. In my view, absenteeism In that manner,brought his conduct within the ambit of the prohibition in theletter of appointment relating to ‘conduct’ that was ‘detrimentalto the business’ of the appellants and justified the terminationof the employee’s services.
The law relating to employment is not a one-way street.Justice, fairness and equity must be meted out even-handedlyto employees and employers alike. An employee is no doubtentitled to exercise the rights and enjoy the privileges and benefitsgranted by law or conceded by agreement. Yet, he or she mustact with a due sense of responsibility. Article 28 (c) of theConstitution reminds us that the enjoyment of rights, andfreedoms is ‘inseparable from the performance of duties andobligations, and accordingly it is the duty of every person in SriLanka… to work conscientiously In his chosen occupation.’Specifically on the matter of absence from work, WeeramantryJ in Colombo Apothecaries Co. Ltd. v. Ceylon Press Workers'Unionw observed in a case involving a compositor likeSomadasa, that :
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“while an employee Is no doubt entitled to his quota of leave,he must not as far as is avoidable draw on his leave withoutprior notice to the management; nor must he repeatedlydraw on such leave In such a manner as would throw out ofgear the work of the establishment he serves.”
Alfred Avins in Employees’ Misconduct (1968) pp. 5-6expressed a similar view:
“The necessity for employees to be present for duty at thetime and place required is obvious. No enterprise of anykind could function if employees were able to come and goas they choose. Without knowing the size of its labour force,no employer could plan any productive undertaking."
The High Court, In my view, erred not only in putting awrong construction on the workman’s absence, it also erred inmisconstruing the fact Somadasa had been paid his salaryincrements. Admittedly, In the light of the appellants’ threat intheir letter of the 12th of February 1992 to defer Somadasa'sincrease in wages unless there was an improvement in hisconduct, the payment of the increase in wages might appear tobe a recognition of his satisfactory service. However, such aninference was wrong in the circumstances of this case, for thepayment of increased wages did not depend on the quality ofthe employee’s service. Somadasa, as a person employed in theprinting trade was statutorily entitled to a salary increase. (SeeSri Lanka Labour Gazette, Vol. 47 No. 1 Jan-March 1996). Thepayment of enhanced wages was not a matter of discretion forthe workman's employers based on their estimation of his worthor satisfaction with regard to his performance. Learned counselfor the respondent urged that the increases in wages paid to hisclient greatly exceeded the statutorily prescribed amounts andtherefore meant that his employers had not only condoned pastlapses but were greatly pleased with his services. I am unableto accept that view in the light of the communications addressedto Somadasa, especially the plain and clearly expressed viewthat his conduct was ’intolerable’ whatever other explanation
SC Elmo Rex Lord and Another. Partners. Mercantile Prlnters_and Stationers 167
v. Eksath Kamkaru Samlthlya on Behalf of Somadasa (Ameraslnghe, J.)
there may have been for payments In excess of the prescribedstatutory minimum.
In the circumstances, responding to a question raised bythis Court in granting leave, I am of the view that the High Courtdid err ‘in the evaluation of the evidence particularly in regardto the issue of the letters of warning.’
With regard to the question raised by this'Court in grantingleave whether the High Court erred on the question of‘the allegedfailure to take disciplinary action against the other workmensimilarly placed’, having regard to the evidence on record, 1 findmyself unable to answer that question except in the affirmative.The view of the High Court in that regard has no support fromthe evidence in the record. No persons were named who weresupposed to have received preferential treatment, except for onePiyasena, and the evidence about him was that he was a loyalemployee who had, however, joined another establishment tofurther his prospects. Piyasena’s case therefore offered no basisfor the allegation of invidious discrimination which therespondent claimed was triggered by the role of the employee inTrade Union activities.
For the reasons stated in my judgment, I set aside thedecisions and orders of the High Court and the Labour Tribunal.
In all the circumstances, however, I make no order as tocosts.
PERERA, J.- I agree.
EDUSSURIYA, J.- I agree.
ELMO REX LOR AND ANOHTER, PARTNERS, MERCANTILE PRINTERS AND STATIONERS v.