FLORENCE FERNANDO v. ANDREWS TRAVEL SERVICE LTD

036-SLLR-SLLR-2002-3-FLORENCE-FERNANDO-v.-ANDREWS-TRAVEL-SERVICE-LTD.pdf


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Florence Fernando v. Andrews Travel Sendee Ltd.
287
FLORENCE FERNANDO
v.ANDREWS TRAVEL SERVICE LTD.
SUPREME COURTFERNANDO, J.
DHEERARATNE, J. ANDGOONEWARDENA, J.
SC APPEAL NO. 2/94HC (WP) APPEAL NO. 4/92WORKMEN’S COMPENSATION TRIBUNALNO. C3/P/50/90 (2)
JUNE 13, 1994
Workmen's Compensation – “Workman" – Control by employer unnecessary -Definition of “workman" under section 2 of Workmen's Compensation Ordinanceas amended by Act, No. 15 of 1990 – Workman may have more thanone employer.
The deceased workman was a permanent employee of the Tyre Corporation.He was also a licensed tour guide. The respondent (a travel agency) engagedhis services to conduct tourists to visit places of interest in Sri Lanka at therate of Rs. 275 per day. One such tour included a boat ride in the course ofwhich the deceased drowned. The Commissioner of Workmen’s Compensationawarded compensation to the appellant who was the widow of the deceased.
Held:
Even if employer control is a requisite, the deceased was controlled bythe respondent by the detailed itinerary for each tour.
However, the deceased’s status as ‘workman” had to be decided in termsof the new definition of “workman” under section 2 of the Workmen’sCompensation Ordinance as amended by Act No. 15 of 1990. The definitionnow includes a person who works “in any capacity”. It is sufficient if itis a contract “personally to execute any work or labour" and this wouldinclude the work of guiding tourists.
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The fact that the deceased had other permanent employment wasirrelevant because the law does not prohibit a man to serve two masters.
Cases referred to :
De Silva v. Premawathie – (1948) 50 NLR 306.
S. W. Omnibus Co. v. James Silva – (1954) 56 NLR 330.
Don Aslin v. Samarakoone Bros. – (1938) 39 NLR 390.
Baby Nona v. Arthur Silva – (1952) 54 NLR 166.
Senaratne v. Maggie Nona – (1953) 54 NLR 575.
APPEAL against the judgment of the High Court.
R. K. W. Goonesekera with L. C. M. Swamadhipathi and Neville Abeyratne forappellant.
P. Somatilakam with M. D. K. Kulatunga and Leon Fernando for respondent.
Cur. adv. vult.
July 07, 1994FERNANDO, J.
The appellant’s deceased husband was a permanent employee of theTyre Corporation. He was also a licensed tour guide. On three orfour occasions he had been engaged by the respondent Company(a travel agency) to conduct groups of tourists on short tours to variousplaces of interest in Sri Lanka. He was last engaged for such a tour,scheduled for 15 days, commencing on 29. 09. 1990; this includeda boat ride on 10. 10. 1990, in the course of which the deceasedwas drowned. He was paid at the rate of Rs. 275 per day. Theappellant applied to the Commissioner of Workmen’s Compensation,who awarded her compensation in a sum of Rs. 250,000 in respectof the death of her husband. The respondent has expressly concededthat if the deceased was a “workman” within the meaning of the
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Workmen’s Compensation Ordinance, his death was in consequenceof an accident arising out of and in the course of his employment.
That order was set aside on appeal. The learned High Court Judgetook the view that the issue for determination was “whether thedeceased was employed by (the respondent), or was a casual employee/independent contractor”. Having referred to the four indicia of a contractof service – namely, the employer’s power of selection of the employee,the payment of remuneration by the employer, the employer’s right 20to control the method of doing the work, and the employer’s right todismiss the employee – the learned High Court Judge took the viewthat the respondent did not control the manner in which the workwas done. Despite the detailed itinerary for each day of the tour, thelearned High Court Judge held that the deceased had considerablefreedom to determine the precise time at which the group would visita scheduled place of interest; to lecture to them about such placesas he thought best; to take the group to visit other attractions andshops, and generally to entertain them; and to decide whose boathe should hire for the boat trip. She held that the deceased was 3pworking under a contract for services, and was therefore not anemployee of the respondent.
However, this view that the itinerary contained only some broadguidelines and that the deceased had a large measure of discretion,is mistaken. An examination of the itinerary shows that the deceasedhad to keep to a very detailed schedule; every important aspect ofthe tour had been predetermined (and was paid for) by the respondent,and could not be varied by the deceased; in relation to the tour asa whole, the deceased had only a limited discretion. It is true thatthe respondent did not attempt to control the exercise of his skill as 40a guide – what precisely he would emphasise at each place, andwhat he would say about it, etc. – but that is a discretion not at all
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inconsistent with the position of any employee whose work involvessome degree of skill. By no means was he an independent contractor,engaged to produce the desired result of a successful tour, and havinga wide discretion as to how he would achieve that objective. On thecontrary, specific directions were given to him as to what he shoulddo; having done what he was told to do, if the tour was not a success,that was not his responsibility.
In any event, the matter should have been determined by reference soto the definition of “workman” in the Workmen’s CompensationOrdinance, as amended by Act, No. 15 of 1990 :
"… any person who has entered into or works under, acontract with an employer for the purposes of his trade or businessin any capacity, whether the contract is expressed or implied, oralor in writing, and whether it is a contract of service or of apprenticeshipor a contract personally to execute any work or labour, and whetherthe remuneration payable thereunder is calculated by time, or bywork done or otherwise, and whether such contract was madebefore or after the coming into force of this definition …” eo
Learned counsel for the respondent submitted that a “workman”included only persons engaged in work over which the employer hadcomplete control. In reply to a question from the Court, he said thata legal officer employed in a company or corporation would not beincluded, because the employer had no control over aspects of hisprofessional work, such as making submissions to a court and givingadvice. This is untenable. The previous definition was undoubtedlyrestrictive, because it included only persons employed in a capacityspecified in Schedule II; thus, a school teacher was excluded (DeSilva v. Premawathie.(1) Although it is true that Gratiaen, J. observed 7°in that case that the definition only covered what is popularly described
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as “the working classes” engaged in manual labour and earning“wages” as distinct from “salaries”, that was obiter. As pointed out
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by Pulle, J. in S. W. Omnibus Co. v. James Silva, the ratio decidendiwas that “an employee could not qualify for any statutory benefit unlesshe came within one of the occupations specified in Schedule II”.Hence, if Schedule II had been amended to include the work of alawyer, the definition would then have included a lawyer even if hisemployer lacked control over his work. Thus, the term “workman”was not, even then, restricted to those persons over whose work the 80employer had full control. And the new definition (which is similar inimportant respects to that contained in the Industrial Disputes Act)removed the reference to ‘wages’ as well as other pre-existingrestrictions; it now includes a person who works “in any capacity”,provided (a) he had a contract, howsoever arising, with the employer,and (b) his employment was for the purpose of the employer’s tradeor business; it is sufficient if it is a contract “personally to executeany work or labour”, and this would include the work of guiding tourists;and it does not matter how the “remuneration” is calculated.
Casual employees are not excluded from the definition. Even sobefore the 1990 amendment, casual employees were included, unlessthey were employed otherwise than for the purposes of the employer’strade or business (Don Aslin v. Samarakone Bros,® Baby Nonav. Arthur Silva,® and Senaratne v. Maggie Nona.)® Although differentlyworded, the new definition made no change. The fact that the deceasedhad other permanent employment was irrelevant because the law doesnot provide that a man may not serve two masters. The deceased,therefore, was a “workman” as defined.
Learned counsel for the respondent further submitted that theCommissioner had erred in computing compensation on the basis of 100section 7 (1) (c), and argued that it was section 7 (1) (b) which wasapplicable. Although this submission was not made at the inquiry,section 7 (1) provides :
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“(b) where the whole of the continuous period of serviceimmediately preceding the accident during which the workman wasin the service of the employer who is liable to pay the compensationwas less than one month, the monthly wages of the workmanshall be deemed to be the average monthly amount which, duringthe twelve months immediately preceding the accident, was beingearned by a workman employed on the same work by the same noemployer, or, if there was no workman so employed, by a workmanemployed on similar work in the same locality;
(c) in other cases, the monthly wages shall be thirty timesthe total wages earned in respect of the last continuous periodof service immediately preceding the accident from the employerwho is liable to pay compensation, divided by the number of dayscomprising such period.”
The General Manager of the respondent stated in evidence-in-chiefthat salaries of tour guides were determined by the Tourist Board,and that the deceased was paid Rs. 275 per day, thus implying that '«>what the deceased was receiving was the rate fixed by the Board.
His evidence was that there was a list of registered tour guides fromwhich the respondent made its selection. There was no evidencebefore the Commissioner as to the actual monthly earnings of othertour guides employed by the respondent, or of tour guides in thelocality. Accordingly, it was not possible for the Commissioner to havecalculated the monthly wages of the deceased in terms of section7 (1) (b), and he fell back on the residual provision in section 7 (1)
(c) on the basis of which he assessed the monthly wages of thedeceased at Rs. 8,250 (and the appellant’s entitlement under section 1306 (1) (A) at Rs. 250,000). Counsel for the respondent conceded thatif the Court were now to attempt to apply section 7 (1) (b), despitethe lack of evidence, it would not be unreasonable to compute monthly
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wages on the basis of 22 working days; the monthly wages of thedeceased would be Rs. 6,050 and the appellant’s entitlement wouldbe Rs. 249,498. In those circumstances there was no reason tointerfere with the Commissioner’s assessment of compensation.
It was for these reasons that, at the conclusion of the hearingthe appeal was allowed, and the Commissioner’s order restored,with costs in both Courts in a sum of Rs. 15,000 payable by therespondent.
DHEERARATNE, J. – I agree.GOONEWARDENE, J. – I agree.
Appeal allowed.
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