COMMERCIAL AND INDUSTRIAL WORKERS UNION
v.
ASSOCIATED BATTERY MANUFACTURERS (CEYLON) LTD.,AND THREE OTHERS
COURT OF APPEAL.
F. N. D. JAYASURIYA, J.
C.A. 598/96
ARBITRATION INQUIRYNO. A 2287OCTOBER 30, 1996DECEMBER 18, 1996.
Arbitration – Secretary of a Trade Union – Unlawful and unauthorised meetinginside Company premises – Inflammatory speech to arouse the workers -Dismissal – Collective Agreement – Probationers – Misconduct – Justifyingtermination – Plea of acquiescence/waiver – Testimonial trustworthiness andcredibility.
The Arbitrator held that the workman, who was the Secretary of the petitionerUnion had held an unlawful and unauthorised meeting and addressed theworkmen making an inflammatory speech, at such meeting inside the work place,and in the circumstances the termination was justified.
Held: Per Jayasurlya, J.,
■Relief by way of Certiorari in relation to an award made by an Arbitrator will beavailable to quash such an award if the Arbitrator wholly or in part assumes ajurisdiction which he does not have or exceed that which he has or acts contraryto Natural Justice or pronounce an award which eminently is unreasonable or isguilty of a substantial error of law. This remedy cannot be utilised to correcterrors or to substitute a correct order, for a wrong order and if the Arbitrators’award was not quashed in whole or in part, it had to be allowed to standunreversed."
It is misconduct for a worker to absent himself from a specific place of duty toengage in an Union meeting, specially when the meeting is unauthorised orillegal;
No evidence had been adduced that the employer had acted with mala fidesor was actuated by improper motives in terminating the services of theprobationers. The employer had the right to terminate the services of suchemployees.
The Arbitrator may have erred in some trivial and venial respects in holdingthat it had been proved beyond reasonable doubt that the workman made aninflammatory statement against the Company in addressing the workers at suchmeeting, but that slight and trivial error certainly does not vitiate his order.
As regards the contention that it was the practice to hold such meetingswithout authorisation to which the Company did not object in the past – estoppel,waiver and acquiescence are all matters of evidence and cannot be establishedinferentially by means of large conjecture.
APPLICATION for the issue of a Writ of Certiorari
Cases referred to:
Commonwealth Aircraft v. Australasian Society of Engineers – 48Commonwealth Arbitration Reports 362
In Re. Iron Steel Work Employees – 1956 Arbitration Report (New SouthWales) 615
In Re. Hutcherson Bros. (Pvt) Ltd. – 88 Commonwealth Arbitration Report 800.
Australian Builders Labour Federation v. Arcos Industries (Pvt) Ltd., – 92Commonwealth Arbitration Reports – 156
Ravalgoon Sugar Farm Ltd., v. Its Employees 1946-47 – Bombay IndustrialCourts Reports 474 at 485
Indian Malleable Casting Ltd., v. Their Employees 1952 – (1) Labour LawJournal 254
Bank of Bikaner Ltd., v. Indrajit Mehta – 1954 (1) Labour Law Journal 189 at191
A. R. Hettiarachchi v. Vidyalankara University- 76 NLR 47
Small Holdings Development Authority v. Rajaratnam – CA 490/85.
M. Z. Jasmine v. G.C.E.C. – CA 142/89 CAM. 24.2.87
University of Moratuwa v. H. M. Podi Banda – HC LTA 647/83.
High Court minutes 10.7.95
K. T. P. D. Siyaguna v. Netu’s Advertising Services – HCLTA 168/91 HCAMinutes 30.3.92
Silva v. Reginahamy-41 NLR 56 at 58.
Jayetillake v. Jayawardena – 56 NLR 73 at 79
Gomin Dayasiri with Manourie Jinadasa and Manjula Sirimanne for petitioner.
Cur. adv. vutt.
March 12.1997.
JAYASURIYA, J.
The petitioner Trade Union has preferred this application for theissue of a mandate in the nature of a writ of certiorari to quash theaward made by the fourth respondent – arbitrator dated 18.6.96,which has been annexed to the petition marked P12. The aforesaidarbitrator, after a careful arbitration inquiry, has held on the totality ofthe evidence placed before him that the workman J. T. Shantha, whoheld the post of secretary of the Petitioner Union had held an unlawfuland unauthorised meeting and addressed the workmen at suchmeeting inside the work place of the employer company, namely, thepremises owned by Associated Battery Manufacturers (Ceylon) Ltd.without obtaining prior approval and permission from themanagement, as required by the provisions of the CollectiveAgreement which was binding on the employer company and theworkman and which document was marked in the arbitration inquiryas R1. It was alleged on behalf of the employer that the aforesaidworkman Shantha made an inflammatory speech against themanagement, addressing the workers at such unauthorised meetingto raise discontent among the workers and to arouse the workersagainst the employer company. The Arbitrator has stated that actimputed to Shantha of making the aforesaid inflammatory statementsat such meeting, is proved even beyond reasonable doubt by theevidence of witness W. A. D. L. Karunatillake (Factory AdministrationManager) which evidence was coroborated by the evidence of Mr. U.
K.K. P. de Silva who was the Personnel Manager of the employercompany. However, these witnesses, in the course of their evidence,conceded that they did not hear clearly the actual words used by theworkman Shantha. Nevertheless, the evidence given by themmanifests the gesticulations, gestures and actions used by theaforesaid workman, Shantha, in addressing the workers at suchunauthorised meeting because one witness was able to observe theactions, gesticulations and gestures through the glass windows of hisoffice as the said meeting was held within the work place and inclose proximity to the office occupied by the Factory AdministrationManager. It is the case for the employer that as a result of thisspeech, the workers were induced to resort to accelerated and
renewed violence and in consequence of the resulting generalmayhem that occurred between 26.11.92 and 27.11.92 there was arapid fall and decline in discipline in hurling missiles which finally ledto a closure of the factory of the employer because the employerreasonably anticipated and apprehended resulting damage toproperty of the employer and persons within the work place. In thecircumstances, the said Arbitrator in his award has held that thedismissal of workmen J^T. Shantha, D. W. Dharmadasa, E. N. D.Harischandra and M. P. Fernando by the employer company isjustified and that the workmen are not entitled to any relief on theground of wrongful dismissal. Although a feeble attempt was made atthe arbitration inquiry and before this court to assert that theaforesaid meeting held on 26.1.92 took place outside the work place,the effect of the totality of the evidence adduced before the arbitratorclearly establishes that the aforesaid meeting took place within thework place of the employer and at a point in close proximity to theoffice of the Factory Administration Manager, Mr. Karunatillake. In thecircumstances, I reject as unfounded the contention to the contraryadvanced by learned counsel for the petitioner before this court.
It was sought to be argued that the aforesaid meeting was lawfuland authorised. On this issue, Mr. de Silva, the Personnel Manager,has quite clearly stated in his evidence that prior approval from themanagement was imperative and necessary for the holding of themeeting on the 26th of November, 1992, at which workman Shanthaaddressed the workers within the work place and during workinghours. Neither was approval or permission ever sought or ever givenby the management tor the convening and holding of such a meeting.The employer has produced and marked in evidence the CollectiveAgreement as R1. Clause 3 of Part II of R1 provides as follows:
In respect of each meeting which the Trade Union desires tohold at the Associated Battery Manufactures (Ceylon) Limited- employer's premises – an application for permission shall bepreviously made to the employer:
if the employer decides to grant permission, the employershall be entitled to impose certain conditions which areexpressly enumerated;
It shall be the duty of the union and its office bearers to ensurethat the terms on which permission to hold a meeting of suchunion is granted, are duly complied with;
it shall be the duty of the union and its office bearers to ensurethat no damage is caused in the course of or in connectionwith a meeting of the union to the employer's property or anyother persons at the employer's premises and the union shallindemnify against any such damage.
It is crystal clear, having regard to the facts established at thearbitration inquiry, that no application for permission to hold theaforesaid meeting had been made by either the trade union or byShantha in his capacity as secretary of the Trade Union and,consequently, no authority and permission had been granted by themanagement to hold the aforesaid meeting. Thus, the holding of themeeting and addressing the workers at such a meeting, were clearlyunlawful and unauthorised acts on the part of Shantha. It appears alegitimate inference to draw that workman Shantha's conduct inacting in defiance of the provisions of the Collective Agreement andthe rule contained in it and his instigation to workers, was the basis ofa show cause letter (marked R3 and dated 8.12.92) which wasserved on him. The holding of this unauthorised and unlawful meetingled to further unrest in the factory of the employer and to highindiscipline among the workers. It is in evidence that pieces of rubberand lead were thrown at superior management officers and there wasindiscriminate hooting and ridiculing of officers of the management.In such circumstances, the management apprehended danger toproperty within the factory and danger to the lives of the staffmembers and the workers within the factory, particularly because inthis factory were stored items like sulphur, coal dust, acid and rubberwhich were highly inflammable items and if by chance the factorycaught fire, the entire Ratmalana area would have been in imminentdanger. It is in evidence that this meeting led to accelerated andrenewed unrest and high indiscipline among the workmen and theapprehensions of danger to property of the management and lives ofall persons inside the factory premises was, in the circumstances, areasonable and a prudent apprehension entertained by themanagement.
If meetings of this nature and character are held without obtainingprior approval and permission [as provided for in the bindingprovisions of the Collective Agreement signed by the managementand the trade union representing the workmen], as and whenworkmen and trade union officials decide to hold meetings at theircomplete whims and fancies, there would be disruption of work in thefactory which would necessarily lead to loss of production andimmense detriment and loss to the management. The managementwould, as a result be unable to comply with the date frames set inexport quotas allocations. Foreign orders for purchase of batteriesmanufactured locally, would be cancelled resulting in irreparable lossand detriment to the management and also consequent detriment tothe economy of the country.
It is interesting to consider the principles laid down in foreignjurisdictions relating to Industrial Law and Labour Law. InCommonwealth Aircraft v. Australasian Society of Engineers n), it wasaffirmed that it is misconduct for a worker to absent himself from aspecific place of duty to engage in a union meeting, specially wherethe meeting is unauthorised or illegal. This principle was reiterated inthe decision In re Iron Steel Work Employees<2). The principle hasbeen clearly laid down that it is misconduct to hold an unauthorisedmeeting on the employer company's time – Hutcherson Bros. (Pvt)Ltd.,a Vide also the decision in an Australian Builders' LabourFederation v. Arcos Industrial (Private) Limited w. In India, the viewhas been taken that it is misconduct to use the Company's premisesfor an unauthorised meeting without permission. See the decision inRavalgoon Sugar Farm Limited v. Its Employees ,5). Upon thisarbitration inquiry it has been clearly established that theunauthorised meeting held on 26.11.92 was held during the workinghours of the employees of Associated Battery Manufacturers (Ceylon)Limited. In fact, the overwhelming evidence is to the effect that themeeting was held during working hours, subsequent to the milkinterval and long after the second bell had been rung after theinterval. In the Indian decision in Indian Malleable Castings Limited v.Their Employees<8) the principle was laid down that a union officialwho leaves his department and specified place of work withoutpermission and proceeds into another section, summons a meetingand makes a speech, is guilty of misconduct.
It has sometimes been urged in defence of trade union officialsthat the contents of a speech made at a union meeting can neverform the basis of a charge of indiscipline against an employee.However, such a contention was rejected in the decision in Bank ofBikaner Limited v. Indrajit Mehta m. The Labour Appellant Tribunal ofIndia remarked thus in relation to such a contention: “We regard thiscase as a serious act of indiscipline which merits dismissal. It hasbeen urged before us that the contents of a speech made at theunion meeting cannot form the basis of a charge of indisciplineagainst an employee but it is quite clear that where an employeethreatens or intimidates with violence a superior officer on account ofsome grievance connected with his work, whether it is during officehours or out of office hours or whether it is in the bank premises oroutside of it, it is misconduct." In the instant arbitration inquiry it wasclearly established that this meeting had been summoned and theworker Shantha had addressed the meeting with violent gestures,gesticulations and actions clearly during the working hours fixed bythe management for the labour of the workmen.
The matters which were referred to arbitration and which were thematters in dispute between the parties in the particular arbitrationwere as follows:
Whether the demand of the union that long-term interest-free loanpaid to the employees of Associated Battery ManufacturersCeylon Limited be incerased from Rs. 25,000 to Rs. 50,000 isjustified and, if not, to what relief they were entitled;
Whether the non-employment of the aforesaid five workers by theAssociated Battery Manufacturers (Ceylon) Limited is justifiedand, if not, to what relief each of them is entitled.
After the aforesaid matters had been referred for arbitration, it hadbeen brought to the notice of the arbitration court that the aforesaidissues in regard to the demand relating to the long-term interest-freeloan, had been settled by a communication addressed by theCommissioner of Labour dated 11.6.93 to the said court. In regard tothe second issue, which also covered the question of non-employment of workman Raymond Perera, had also been settledbetween the parties as evidenced by a letter furnished to the courtby the Ministry of Labour and Vocational Training and which letter hasbeen marked and produced as R23. In the circumstances, thearbitrator concluded that he had only to determine the issue whetherthe non-employment of the remaining four workmen, namely, J. T.Shantha, D. W. Dharmadasa. E. W. de Harischandra and N. P.Fernando was justified and, if not, to what relief each of them wasentitled, in regard to the aforesaid workmen, except J. T. Shantha, thearbitrator has held that the services of these three employees hadbeen terminated during their period of probation for misconductduring the strike, in terms of the provisions of the CollectiveAgreement marked R1 (namely, clause 6). The employer had theright to terminate the services of such employees on probationwithout notice. At the arbitration inquiry, no evidence has beenadduced on behalf of the union or the workman that the employercompany had acted with mala tides or were actuated by impropermotives in terminating the services of the aforesaid probationer. Inview of the aforesaid undisputed facts, the arbitrator has verycorrectly held that the employer was entitled in law to extend theperiod of probation for these probationers [vide A, R. Hettiarachchi v.Vidyalankara Universitym, Smallholdings Development Authority v.Rajaratnam{9), M. Z. Jasmine v. G.C.E.C.m, University of Moratuwa v.
M, Podi Bandaral" and that the termination of the services of theaforesaid three Probationary Officers was justified and lawful. VideK. T. P. D. Siyaguna v. Nelu's Advertising Services™, where all thelandmark decisions of the Court of Appeal are collated anddiscussed].
The arbitrator very correctly, in his order, states as follows:
“In regard to workman Shantha’s active participation in thepreceding strike, undoubtedly this strike now settled withoutmeeting the demands, was sponsored by the applicant union andShantha being the Secretary of the union took an active part init… This court does not fault Shantha for taking an active part inunion activities and in the strike but does for the leadership givenfor and the summoning of the unlawful meeting of 26.11.92 and thegeneral mayhem and inflammable unrest that occurred up to27.11.92 resulting in a rapid decline in discipline and finally aclosure of the factory on account of grave apprehension and fearof loss and destruction to life and property which undoubtedlyaffected production and the economy of the land.”
The principles and the authorities substantiating such propositionswhich have been laid down in foreign jurisdictions adverted to by me,support the view that the aforesaid conduct of Shantha constitutedmisconduct justifying termination of his services. The petitioner inparagraph 23(b) of the petition complains that the fourth respondent-arbitrator erred in law by stating in his order that the charge-sheetmarked R3 contained a charge of addressing the workers at ameeting not authorised by the company and that this fact had beenproved even beyond reasonable doubt, whereas the charge-sheetR3 did not contain any such allegation at all. I hold that this is a wilfuland deliberate attempt to mislead and deceive this court by statingan undoubtedly false and inaccurate representation and a statementof fact on the part of the petitioner and this fact alone entitles thiscourt to reject this application claiming the grant of discretionaryrelief from this court, To substantiate the findings of this court, I wouldproceed to quote the contents in document marked R3 which isthe charge-sheet served on workman Shantha who was requiredto explain in writing as to why disciplinary action should not betaken against him for conducting the aforesaid unauthorisedmeeting during working hours. The relevant portion of R3 reads asfollows:
“It has been noted that during the disturbance that prevailed in ourpremises … you have, on the 26th of November, 1992, at oraround 10.15 a.m. led a group of employees to the yard oppositethe main gateroom and conducted a meeting. At this meeting youaddressed the workers who had gathered for well over ten minuteswhile your address was inflammatory in content and nature, in thatthe workers were also aroused and in a belligerent mood. Yourconduct as mentioned in the preceding paragraph was partlyresponsible for aggravating the chaos which already prevailed atthe work place.”
Thus, it is crystal clear that the averments in paragraph 23(b) aredemonstrably false and incorrect. The witness Karunatillake, FactoryManager, has stated in evidence that he observed through the glasswindows the gesticulations, gestures, actions and the movement ofhands, face and lips of Shantha in addressing the workers at suchmeeting , but, as he was in his air-conditioned office, he did not hearthe words which worker Shantha had used in addressing the workers.The Personnel Manager, Mr. de Silva, giving evidence, has statedthat he heard Shantha, inter alia, stating:
“ osaJipa oaJaesea oQeo getoOeflaa sm. £©Q® otsScxs>&>. oxgaoefi© garactoato
Boo.”
The arbitrator has been guided by the evidence led in regard tothe gestures, gesticulations and actions of Shantha in making theaforesaid speech. The Arbitrator may have erred in some trivial andvenial respects in holding on such evidence that it had been provedbeyond reasonable doubt that Shantha made an Inflammatorystatement against the company in addressing the workers at suchmeeting but that slight and trivial error certainly does not vitiate hisorder where he held that Shantha had on the 26th of November, 1992summoned, convened and held an unauthorised meeting withoutpermission of the management during working hours within thefactory premises belonging to the employer. To that extent there is nosubstantial error of law appearing on the record.
Learned counsel for the petitioner, after his oral submissions, insupporting this application has tendered to this court a writtensubmission on the 18th of December, 1996. That written submissionrefers to the evidence of the Personnel Manager, Mr. Prem Silvawhere he had clearly stated in the course of his evidence that thetrade union officials and the workers were always in the habit ofmaking applications in writing to hold meetings within the factorypremises. The evidence of Shantha in regard to that point was thatthe trade union officials, when they had to summon meetingssuddenly, were in the habit of calling a meeting of members withoutpermission during working hours or during the lunch break and thatthe Management was aware of such meetings and did not object to
such meetings. The Arbitrator has arrived at a finding in favour of thetestimonial trustworthiness and the credibility of the two witnessescalled on behalf of the employer. It is on that factual basis that theplea of acquiescence and waiver trotted out by learned counsel forthe petitioner in his written submissions, ought to be adjudicatedupon. The learned counsel for the petitioner in his writtensubmissions states: “Insofar as the charge of addressing workers at ameeting not authorised by the company is concerned, it has been theestablished practice for meetings to be held in the premises withoutauthorisation. Notwithstanding the Collective Agreement, it was thepractice to hold such meetings without authorisation, to which theCompany did not object in the past. Therefore there was waiver of therequirement of authorisation by the company. Even the terms of theCollective Agreement can be varied by way of waiver … Theseaspects have not been considered at all by the learned Arbitrator.Therefore, it is evident that there is an important question of law to bedetermined arising from waiver which aspect has not beenconsidered by the learned Arbitrator.” In regard to this contention, Ihold that estoppel, waiver and acquiescence are all matters ofevidence and cannot be established inferentially by means of largeconjecture, as learned counsel for the petitioner attempted to doupon this application. Vide the judgment of Soertsz J in de Silva v.Reginahamy<,3). I hold that the petitioner has altogether failed toestablish the plea of waiver and acquiescence on the part of theemployer, in this regard. On a consideration of the totality of theevidence led at the inquiry, though the rule of estoppel byacquiescence could also be called in aid in Sri Lanka (Vide thedecision in Jayetillake v. Jayawardena,tu> per Justice Gratian) thefactual foundation for such a plea of estoppel by acquiescence orwaiver has not been established by the petitioner upon thisapplication and, in the circumstances, it was idle to contend that theprovince of waiver and acquiescence had not been considered bythe learned arbitrator in the attendant circumstances of this case.
J. T. Shantha, the applicant, has given evidence at the inquirystating that he addressed the aforesaid meeting outside the factorypremises of the management; that he did so during non-workinghours and that it was practice to hold meetings without the authority
and permission of the management inside the work place and thatsuch a practice had been •permitted by the management, althoughthe Collective Agreement provided for the express obtaining ofpermission and authorisation. Learned counsel for the employer atthe inquiry has made cogent submissions to the Arbitrator that heshould, on the media set forth by learned counsel, arrive at anadverse finding in regard to the testimonial trustworthiness andcredibility of the workman Shantha. Learned counsel submitted withcogency that the version of Shantha is that he addressed theaforesaid meeting on the said date outside the factory premisesduring the interval and that in no way did he arouse the workers into abelligerent mood. If that was the correct position, learned counselsubmitted it was wholly unnecessary and irrelevant for Shantha totake great pains and efforts with manifested discomfiture to testifythat on numerous occasions, meetings have been held inside thefactory premises without the approval of the management and furtherto assert that such meetings without permission of the managementwere held even during working hours. If the meeting was held outsidethe gates of the premises, why was it that workman Shantha didlabour and strive, manifesting discomfiture and unconvincingdemeanour, to testify that permission was not necessary havingregard to the practice that prevailed with the management. It wascontended forcefully that Shantha in his evidence took two alternativepositions and was seeking to have two strings to his defence bowwhich in turn demonstrated the incredibility of his version. Further, itwas forcefully argued that in Shantha's reply to the show causenotice, which reply was marked as A9, that Shantha has not trottedout the afterthought that meetings were held within the factorypremises even during working hours without the approval of themanagement. In A9 there is a complete omission to assert this factand if that was the true position, one would expect to find thatposition asserted in the contemporaneous document A9 written byShantha. This glaring omission was utilised by learned counsel forthe employer to impugn Shantha’s credibility and testimonialtrustworthiness. These submissions have weighed with the Arbitratorwhen he impliedly rejected Shantha's evidence as uncreditworthy.Unfortunately, the findings on this point of the arbitrator have beenexpressed in a rather inarticulate and inexact terms as follows:
‘These matters have been elicited in evidence by learned counselfor the company and the learned counsel for the union has beenunable to meet the position and contentions taken up by thecompany as regards Shantha and others.”
The Arbitrator, in the circumstances, has upheld the position of theemployer and the evidence that the holding and addressing of theunauthorised meeting (held on 26.11.92) fanned and inflamed theunrest and the fall in discipline which in turn led to the workersthreatening the Transport contractors who arrived at the factorypremises to remove the manufactured batteries and as a result thecontractors refused to perform their contractual duties; that theworkers pasted posters at the entrance to the General Manager'sroom, inside the cubicle of Mr. Malcolm Jayawardena and inside thecubicle of Mr. Lucky de Silva to the effect – "first to obtain the loanand then work” – “these cubicles will be closed from Monday" andthen that the workers hurled missiles, of lead and rubber at the staffofficers of the management and the resulting mayhem induced theclosure of the work place.
In arriving at a decision upon this application, I stress andemphasize that I must be mindful of the nature of Certiorariproceedings as distinct from the exercise of Appellate Jurisdiction.Relief by way of Certiorari in relation to an award made by anArbitrator, will be available to quash such an award if the Arbitratorwholly or in part assumes a jurisdiction which he does not have orexceeds that which he has or acts contrary to Natural Justice orpronounces an award which eminently is unreasonable or is guilty ofa substantial error of law. This remedy cannot be utilised to correcterrors or to substitute a correct order for a wrong order and if theArbitrator’s award was not quashed in whole or in part, it had to beallowed to stand unreversed. I am supported in this view by the viewsexpressed by Wade on “Administrative Law” where he states:
"Judicial review is radically different from the system of appeals.When hearing an appeal the court is concerned with the merits ofthe decision under appeal … but in judicial review, the court isconcerned with its legality. On an appeal the question is ‘right orwrong? On review, the question is 'lawful or unlawful’? … Judicialreview is a fundamentally different operation. Instead ofsubstituting its own decision for that of some other body, ashappens when an appeal is allowed, a court on review isconcerned only with the question whether the act or order underattack should be allowed to stand or not." (1) 2nd Edition at pages34 and 35).
in the result, I hold that there is no substantial error of law arisingon the record on a perusal of the award of the Arbitrator. The orderpronounced by him is eminently reasonable and satisfies therequirement of reasonableness as laid down in the Rule inWecfnesbury’s case. There is no substantial misdirection in point offact or law, there is no failure whatsoever to take into account theeffect of the totality of the material adduced at the Arbitration inquiryand there is no improper evaluation of evidence and neither is thereany defect of procedure on a consideration of the entirety ofthe evidence led at the inquiry and on a consideration of the awardof the said Arbitrator. Therefore, I proceed to refrain from issuingnotice of this application on the respondent and I proceed todismiss the application without costs. Application is dismissedwithout costs.
Application dismissed.
