084-NLR-NLR-V-71-HEATH-CO.-CEYLONLTD.-Petitioner-and-P.-KARIYAWASAM-and-2-others-Responden.pdf
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Heath <k Co. (Ceylon) Lid. n. Kariyawasom
1968 Present: H. N. G. Fernando, C.J., and Sirimane, J.HEATH & CO. (CEYLON) LTD., Petitioner, and P. KARIYAWASAM
and 2 others, Respondents•
iS. C. 375/64—Application for the issue of a Writ of Certiorari in termsof Section 42 of the Courts Ordinance
Industrial Disputes Act—Arbitrator appointed thereunder—His duty to weighevidence—Misconduct oj workman—Circumstances when it should not becondoned—Certiorari.
In the assessment of evidence, an arbitrator appointed under the IndustrialDisputes Act must act judicially. Where his finding is completely contraryto the weight of evidence, his award is liable to be quashed by way ofcertiorari.
In a labour dispute, the misconduct of a workman must not be condonedin the name of industrial peace, if such condonation can only lead to industrialchaos.
Application for a writ of certiorari to quash an award of anarbitrator appointed under the Industrial Disputes Act.
v
H. V. Perera, Q.C., with Lakshman Kadirgamar, for the Petitioner.No appearance for the Respondents.
Cur. adv. vnlt.
S1RLMANE, J.—Heath <k Co. (Ceylon) Ltd. v. Kariyawasam
383
June 11,1968. Sirimane, J.—
This is an application by the petitioner (a Company with limitedliability hereinafter referred to as “ The Company ” ) for a Writ ofCertiorari quashing an award made by the first respondent, an arbitratorappointed under the Industrial Disputes Act by which he ordered (interalia) the reinstatement, and payment of back wages to a workman ofthe Company who had been dismissed. The dismissal was in consequenceof the workman being found guilty, after a domestic inquiry into chargesof unruly behaviour, the use of obscene words and threatening languageto the Personnel Manager of the Company.
The second respondent is a trade union which had represented theworkman in this dispute.
The Minister of Labour and Social Services had referred the disputefor arbitration to the first respondent in the following terms :— .
" Whether the termination of employment of Mr. P. H. Sumanadasa
(worker No. 288) is justified and to what relief he is entitled.”
At the inquiry held by the first respondent the evidence led on behalfof the Company revealed that the workman had applied for leave andalso requested that the customary deductions from his salary on accountof outstanding loans should not be made. When the Personnel Managerinformed him that this request had been refused by the Secretary, hewanted to see the Managing Director immediately without any appoint?ment. The Personnel Manager explained that this could not be doneat once but that he would arrange an interview later. The workmanthen became aggressive and defiant, and when the Personnel Managertried to pacify him, he raised his voice, became even more aggressiveand used obscene words.
On this point, there was the evidence of the Personnel Manager, oneAlles, H. L. de Kretser, an executive assistant, E. C. Foenander andBrian Jones, two stenographers who were in the same room with Allesat the time.
Alles reported the matter immediately to Ravenscroft, the Secretaryof the Company. The workman, having apparently learnt that Alleshad reported him, came back to the office in the afternoon and heldout a threat to Alles, saying that though Alles may make reportsagainst him inside the Office, he would deal with him (Alles) outside.In addition to the witnesses mentioned earlier, one Mrs. Christofelsz,the Private Secretary to the Managing Director, who was present inthe room at that time, also heard the threat and gave evidence tothat effect.
The workman merely denied that he used the obscene wordscomplained of, and admitted—as indeed he must—that had such wordsbeen used, the dismissal o£ an employee would be justified. He also
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SHUMANE, J.—Htath <Sc Co. {Ceylon) Ltd. t>. Kariyaxcaaam
said that in the afternoon he merely asked Alles not to “ do injustices ”and that if Alles tried to sack him, he would fight him outside—meaningthe Courts of law.
So, the issue before the arbitrator was a simple one, viz., whether theworkman had or had not used the words attributed to him and behavedin the manner alleged by the Company’s witnesses. The arbitrator,however, has not dealt with the evidence at all. He has not evensuggested any ground on which the evidence of the Company’s witnessesshould be rejected or even doubted. It is indeed quite impossible tofind one. He states at one stage of his award, “ It is a sad note that atrade union leader of the standing of Mr. Sumanadasa was unable toexercise tact and patience expected of him in his dealings withthe management of the Company”; and again, “To my mindSumanadasa has in some measure contributed towards these allegedincidents.” There is a clear indication here, that the arbitratorrejected the evidence of the workman. But his finding, to quote hiswords, is “ According to the evidence placed before me, I am unableto hold that Mr. Sumanadasa is guilty of the charges brought againsthim and that.his dismissal is justified”.
No reasonable man could have, in my opinion, reached that conclusionon the evidence placed before him.
In the assessment of evidence an arbitrator must act judicially*Though the point of view of a workman in a labour dispute must alwaysbe given the highest consideration, and his conduct judged with toleranceand understanding, yet, the use of obscene language when addressingthe employer’s representative, a contemptuous disregard for any form ofdiscipline, coupled with threats of violence should not be condoned, inthe name of industrial peace. Such a course can only lead to industrialchaos. The finding here is so completely contrary to the weight ofevidence that one can only describe it as perverse. I
I would grant the relief prayed for and quash the award made by thefirst respondent. The petitioner is entitled to costs against the secondrespondent.
H. N. G. Febnaitdo, C.J.—I agree.
Application allowed.