MERRILJ. FERNANDO & CO.V.
COURT OF APPEALWUETUNGA, JC. A NO. 539/82
T.NO. 2/15388/82NOVEMBER 20. 1987
Industrial Disputes Act — Is a casual employee entitled to reinstatement orcompensation in lieu of reinstatement?
A casual employee has no right to reinstatement as there is no former position inwhich ,he can be placed again or a previous state to which he can be restored.Hence a casual employee not being entitled to reinstatement is not entitled tocompensation in lieu of reinstatement.
Cases referred to
Ceylon Fisheries Corporation v. Sri Lanka Nidhahas Welanda KarmikaAyatana Sevaka Sangamaya S.C. 56/72 LTB/6264 S. C. Mins of 29.6. 73
Nanayakkara v. Hettiarachchi 74 NLR 185
APPEAL from order of President. Labour Tribunal of Colombo
Shirley N. Fernando with P. Panduwaweta for respondent — appellant
C. Boange for applicant-respondent
February 12.1988WUETUNGA, J.
This is an appeal against the order of the Labour Tribunaldirecting the respondent-appellant to pay a sum of Rs. 5000/-ascompensation to the applicant-respondent.
The workman was a lorry driver under the appellant company,whose services were allegedly terminated by the employer on22.1.82. In his application, the workman claims that he hadserved in this capacity from 24.10.77 and was paid at the rate ofRs. 19.50 per day.
The employer states in the answer that the workman was acasual driver during the period 28.11.78 to 22.01.82 and wassuspected of removing some tea from tea chests loaded in hislorry, while in transit during one of the trips on 22.01.82, onbeing questioned by the Transport Assistant, Nimal Amerasekera.he had spoken rudely to him and having thrown the switch key ofthe lorry on the latter's table, had left the place of work. He hadnot returned to work thereafter and consequently his name wastaken off from the casual pool.
In his evidence-in-chief before the Tribunal, the workman hasclaimed that he was in receipt of a monthly salary of Rs. 600/-but has admitted in cross-examination that he was a daily paidemployee on a wage of Rs. 19.50 per day. According to him, hisservices were terminated because he had scolded Gunatilleke.the cleaner of the lorry, who had failed to discharge his dutiesproperly, in that he had refused to assist him to reverse the lorryby keeping a proper look out and by giving the necessarydirections. He denies any incident of theft or attempted theft.
Gunatilleke. the cleaner has given evidence for the employerand has stated that the workman had suggested taking some teaout of the tea chests, to which suggestion he did not agree,whereupon the workman had scolded him. He had then made acomplaint to Transport Assistant Amerasekera.
Gunatilleke has further stated that when the workman wasquestioned by Amerasekera, he had dropped the key on his tableand had gone away. He had not reported for work thereafter.
The only other witness for the employer was the TransportManager, Micheal Rodrigo. According to him. the workman wasin the employment of the Company from 28.11.78 as a dailypaid casual worker. He denies that the services of the workmanwere terminated as alleged. He had not been present when theincident of 21st January took place. He states that the workmandid not report for work after the 22nd of January.
Learned counsel for the appellant submits that the workmanwas only a casual employee and the President was in error when
he states in his order that according to Rodrigo the workman wasa permanent employee from 1978. He further submits that- acasual employee is not entitled to reinstatement or compensationin lieu of reinstatement. He relies on the decision in CeylonFisheries Corporation v. Sri Lanka Nidhahas We/andaha KarmikaAyathana Sevaka Sangamaya. (1) In that case. Wijayatilake, J.agreeing with the submission that "this workman being a casualworkman, the payment of compensation in lieu of reinstatementwould be irregular because in the context of this case he wouldnot be entitled to reinstatement," has set aside the award of theLabour Tribunal.
In the instant case, the employer has taken up the position, inthe answer, that the workman was employed as a casual driver,as and when work was available. Counsel refers to the evidenceof Rodrigo, the Transport Manager who states that the workmanwas a daily paid casual employee. He further points out that theworkman himself has in his evidence admitted that no E.P.F.payments had been made in respect of him.
He submits that under the Wages Board for the MotorTransport Trade a permanent employee is entitled to a monthlywage and a lorry driver is covered by that Trade. So., if theworkman was a permanent employee, he would have been inreceipt of a monthly wage. The very fact that he was on a dailywage, he submits, is clear evidence that his employment was of acasual nature.
I find from the proceedings that the learned President is clearlyin error when he states that Rodrigo, the Transport Manager ofthe employer, had stated that the workman had been employedin a permanent capacity. On the contrary. Rodrigo had expresslystated that the workman was a daily paid casual employee.
In the light of this error and the other submissions referred toabove. I am unable to say that there was material before theTribunal to come to a.finding that the workman was a permanentemployee.
Although learned counsel for the workman respondent-submitted that the Industrial Disputes Act does not draw a
distinction between casual and permanent employees, he wasunable to cite any authorities in support of the proposition that acasual employee too is entitled to reinstatement andconsequently to compensation in lieu of reinstatement.
The word 'casual' denotes such employment as is subject to.resulting from or occurring by chance and without regularity. Byits very nature, such employment cannot confer upon a workmana right to reinstatement as there is no former position in whichhe can be placed again or a previous state to which he can berestored, as in the case of a permanent employee.
I am, therefore, in respectful agreement .with the viewexpressed by Wijayatilake, J. in S. C. 56/72 (supra) that a casualworkman is not entitled to reinstatement and consequently tocompensation in lieu of such reinstatement.
Counsel for the appellant submits that the learned Presidentwas again in error when he declined to accept the evidence ofwitness Gunatilleke on the ground that there was nocorroboration. His evidence in regard to the alleged incidentitself could not have been corroborated by any other witness, asthe only other person present on the occasion was the workmanhimself against whom Gunatilleke was testifying.
The only other corroborative evidence would have been that ofAmerasekera. the Transport Assistant to whom Gunatilleke hadcomplained. The learned President comments on the employer'sfailure to call him. It appears that Amerasekera was not presenton the date of the inquiry due to ill-health and a MedicalCertificate had subsequently been tendered to the Tribunal inproof of his illness. If the Tribunal considered him to be anecessary witness, it was open to the President to have heard hisevidence before making the order, particularly as the employerhad sought to call him as a witness.
As was submitted by learned counsel for the appellant there isa significant difference between the duties and powers of aLabour Tribunal under Section 31 C(1) of the Industrial DisputesAct as amended by Section 6 of Act. No. 74 of 1962 and the
original provisions as contained in Act No. 62 of 1957. Whereasthe original Section required the Tribunal to "hear such evidence
as may be tendered”, the amended Section makes it the
duty of the Tribunal to “hear all such evidence as the tribunalmay consider necessary". The latter indeed is a very salutaryprovision which the Tribunal should not have lost sight of.
The learned President in ordering that a sum of Rs. 5000/* bepaid to the workman as compensation has failed to state thebasis of such computation. He merely mentions that he hadtaken into account the workman's period of service. InNanayakkara v. Hettiarachchi, (2) it has been held that when aLabour Tribunal awards a sum of money as compensation to anemployee whose services have been terminated, the failure of theTribunal to consider the basis of computation of such sumamounts to a question of law. In the instant case, the Tribunalwas in error in this regard too.
■ For the reasons aforesaid, I set aside the order of the LabourTribunal awarding Rs. 5000/- as compensation to therespondent workman. However, I make no order as regardscosts.
Order set aside.