H. N. G. FERNANDO, C.J.—Gunawardena v. Gunawardena
Present: H. N. G. Fernando, C.J.A. A. GUNAWARDENA, Appellant, and Mrs. R. K. D.GUNAWARDENA, Respondent
S. C. 26171—Labour Tribunal, 4IM/736
Industrial dispute—Co-oumer employed by the other co-owners—His status as“ workman ”.
A co-owner of a land who is paid a salary by the other co-owners in order tolook after the land falls under the category of an employee and is, therefore,entitled to claim compensation for wrongful termination of his services.
Appeal from an order of a Labour Tribunal.
N.Satyendra, for the applicant-appellant.
Miss Adela P. Abeyratne, for the employer-respondent.
March 10, 1972. H. N. G. Fernando, C.J.—
It appears from the application made to the Labour Tribunal by thisapplicant and from the application which he later filed, that according tohim he had been employed from about 1963 as the Superintendent of anestate owned by one Mr. L. A. Gunawardena. After the death of theowner in April, 1970 the heirs of Mr. Gunawardena had on 1st May, 1970consented to the applicant looking after the estate. The applicanthimself owned a l/6th share of the estate. Early in June, 1970 however,the widow of L. A. Gunawardena who had been the administratrix of herhusband’s estate had terminated his services.
(1966) 1 A.E.B. 524.
(1954) 55 N. L. if. 410.
H. N. G. FERNANDO, C.J.—Gunauxirdena v. Gunawardena
One claim of the applicant before the tribunal was for compensationfor the termination of his services by the widow. Secondly, the applicantalso claimed arrears of salary on the basis that he had been formerlyemployed as a Superintendent and had not been paid his salary for twoyears by the deceased owner. He also made a third claim, for salaryfor two years for other services alleged to have been rendered by him tothe deceased. I should state at once that these two claims for arrearsof salary are not maintainable against the widow in these proceedings ;and accordingly there remains only for consideration the claim forcompensation for the alleged wrongful discontinuance of the applicant’sservices in June, 1970.
At the inquiry the applicant gave evidence, in which he stated inter aliathat he himself owned a 1 /6th share of the estate. The applicant referredto what he alleged to be his employment by the other co-owners asSuperintendent of the estate with effect from 1st May, 1970. In regardto salary he stated that the deceased owner had promised him a monthlysalary of Rs. 300 and he alleged that his employment from May, 1970by the co-owners was in renewal of that former employment, thus implyingthat the salary attached to his alleged employment from May, 1970was Rs. 300 a month.
The applicant was not cross-examined and the proctor for therespondent widow merely made certain statements the relevancy of whichis certainly not clear to me. Thereafter the President of the Tribunaldismissed the application in an order which discloses only one reasonfor that dismissal.
“ When a co-owner of an estate looks after the said estate he does notfall under the category of an employee. The applicant shouldbe treated as the respondent’s principal. The applicant is notan employee. ”
The President has misdirected himself in holding that a co-owner of aland cannot be an employee of that land in the capacity of itsSuperintendent. It is open to some of the co-owners of a land to engagethe services of another co-owner in order to manage the land, and suchan engagement can well be on the terms that a salary is to be paid inrespect of these services. Since the only ground on which the applicationwas dismissed is quite untenable, the order of dismissal has to be setaside and a fresh inquiry will have to be held by another Tribunal, butonly into the claim of the applicant that he was employed on 1st May,1970 as the Superintendent of this estate, that he was entitled to a salaryin respect of that employment and that he should receive compensationin respect of the termination of that employment in June, 1970. Thefact that the applicant may have been employed formerly by theprevious owner will not be relevant to the question of compensation.
The appellant will be entitled to the costs of this appeal.
Order set aside-
A. A. GUNAWARDENA, Appellant, and Mrs. R. K. D. GUNAWARDENA, Respondent