Colombo Apothecaries Co., Ltd. v. Ceylon Press Workers’ Onion
Present: Weeramantry, J.THE COLOMBO APOTHECARIES CO. LTD., Appellant, andCEYLON PRESS WORKERS’ UNION, RespondentS. C. 111170—LT1141429169Industrial dispute—Workri on—Frequent absences without prior leave—Liabilityof services to be tern inated—Duties of employee to employer—Obligation ofTribunal to consider then:—Misdirection or non-direction by Labour Tribunalregarding questions at issue—Invalidity of order.
The respondent-employee, who was employed as a Compositor in the printingtrade sii.ee 1951 under the appellant-employer, used to absent himself withoutleave on numerous occasions. On many occasions the employee was excusedafter his explanation was called for, and on more than one occasion he wasinformed that he had vacated his post but was reinstated after he had madehis excuses. Finally, in December 1967, the services of the employee wereterminated “ on the ground of misconduct and particularly of absence withoutprior permission over a period of time although warned by the employer ". Inthe present application for relief under the Inoustrial Disputes Act, the principalquestion for determination was whether the employee, despite repeatedwarnings that he should not absent himself without notice to the management,was entitled to keep continuing in this course of conduct month after month.
It was admitted by the Manager of the printing press that the total numberof days of the employee’s absence without leave was act in excess cf his leaveentitlement.
Held, that the employee’s services were liable to be terminated. *• While anemployee is no doubt entitled to his quota of leave, he must not, as far as isavoidable, draw on this leave w'ithout piior notice to the management ; normust he repeatedly draw on such leave in such a manner as would throw outof goar the work of the establishment he serves. ”
Observations on the principle that, although there is no right of appeal onquestions of fact, the Supreme Court will interfere where the Labour Tribunalhas misconstrued the questions at issue and directed its attention to the wrongmatters or has arrived at findings which bear no relation to the evidence ledbefore it.
.A. PPEAL from an order of a Labour Tribunal.77. W. Jayewardene, Q.C., with Ben Eliyatamby, for the employer-appellant.N.Satyendra, lor the applicant-respondent.Cur. ado. vult.WEERAMANTRY, J.—Colombo Apothecaries Co. Ltd. v.193
Ceylon Press Workers' Union
January 26, 1972. We eb am an thy , J.—
Tho respondent-employee was employed as a Compositor under theappellant employer since August 1951.
It is the position of the employer that since August 1959 the appellantstarted absenting himself without leave and that in the years 1966and 1967 such absences occurred with increasing frequency. On manyoccasions the appellant was excused after his explanation was calledfor, and on more than one occasion he was informed that he had vacatedhis post but was reinstated after he had made his excuses. Finally on28th November 1967 he kept away without obtaining leave, whereuponthe employer served on him a letter asking him to show cause why hisservices should not be terminated. On this occasion he stayed awaywithout leave on December 3rd and 4th as well, and his services wereterminated in consequence of this default.
It is the position of the employee that the employer was not entitledto take into account all the previous defaults in respect of which he hadbeen excused and that the absence of November 28th by itself, evenif taken in association with the absence of December 3rd and 4th, wasinsufficient to justify termination.
The position of the employer in regard to the prior defaults is thateven though the employee had been excused, such defaults were revivedupon a repetition of the very type of default which he had been warnedagainst. It was consequently his position that although the employercould not without further default rely upon earlier defaults that hadbeen excused, the repetition of this type of default entitled the employerto take into account the serieB of prior defaults which became therebyrevived. The question of law involved in this submission does notappear so far to have received tho attention of our Courts.
I should at thiB point recapitulate very briefly the history of theprevious defaults to which I have referred.
There is a schedule of these defaults in R53A. This was an annexureto R53 of December 2nd 1967 by wliich the employer called upon theemployee for his comments in regard to his absence. This schedulelists the various absences of the employee without leave in the years1966 and 1967.
It would appear that in the year 1966 there were no less than elevensuch occasions making a total of sixteen days. In each case a reasonwas given later—that he had to present himself for a blood examination,that an uncle had expired, that he had a chest pain, that hohad rheumatism, that a friend had died and so forth. In regard to theoccasion in respect of which he had stated that an uncle had expired,he had stayed away five days. His explanation had been colled forby letter and he was thereafter excused.
WEERAMANTRY, J.—Colombo Apothecaries Co., Ltd. v.
Ceylon Press Workers' Union
In the year 1967, apart from the incident of 28th November therewere seventeen such occasions, and here too the excuses were rheumatism,a private matter, a chest pain, a stomach pain, family trouble, delay atAnuradhapura, delay at Galle and so forth. In this year he was absentfor a period of eleven days from the 8th to 18th March, and by letterR51 of 22nd March he was informed that he had been absent withoutleave since 8th March and that it was presumed that he had vacatedhis post. By R61A the employee begged to be excused stating thathe had been prevented from coming to work due to domestic troublesand was compelled to stay away from work owing to some unavoidablecircumstances. By R51B of 22nd March he again begged to be excusedfor his absence without leave and stated that in future in the event ofsimilar remissness he was prepared to suffer any punishment imposedon him.
In response to this letter the management wrote him letter R51 of22nd March 1967 informing him with reference to his request to beexcused that he was reinstated on his undertaking not to commit suchan offence in the future, on his agreeing to submit to any punishmentshould he commit such an offence again and in view also of a letter ofguarantee given by a co-worker, K. D. Piyadasa. It was also madeclear to him that no wages would be paid for the period of his absence.
Despite all this, several subsequent defaults followed and he wasabsent again for a stretch of six days in June 1967 when again he wasinformed that his post was vacated. The period of his absence wasfrom 9th to 13th June and a medical certificate was received date-stamped14th June stating that he suffered from a rheumatic ailment. Thismedical certificate was issued by an Ayurvedic physician on 8th Junestating that the employee was under the physician’s treatment from8th to 13th June. Despite the manifestly unsatisfactory nature ofthis certificate he was re-employed. This further kindness extendedto him by the management proved unavailing, and the employee wasguilty of several other defaults thereafter, prior to that on 28th Novemberwhich resulted in the termination of his services.
The absence of 28th November would appear to have been the laststraw which made a sympathetic management decide finally that thisstate of affairs could not continue indefinitely.
It is necessary to bear in mind further that the employee was employedin the printing trade, where, as would appear from the evidence of theManager, Mr. Lakshman Perera, it is necessary to apportion and planout work ahead. The result of one worker keeping away without noticemay well be to upset the work schedules of all the others and thiB becomesa matter not merely of the absence of the individual worker concernedbut also of the management’s inability to re-allocate duties to a wholegroup of others. There are many special skills in the printing tradeand when a team of workers iB geared to the completion of a particularpiece of work the unexpected absence of one may throw the whole teamout of gear. A compositor for example muBt turn out his work in time
WEERAMANTRY, J.—Colombo Apothecaries Co., Ltd. o.
Ceylon Press Workers' Union
if the proof reader, the machine minder, the binder and others are todo theirs to schedule. Moreover an intricate composing job once takenin . hand is best understood by the person who has commenced it andit iB not easy for another to. take over half way through. As Mr. Pererahas said in evidence, in the case of an annual report, for example, wherea balance sheet has to be printed, the person to whom the job is entrustedplans out the work, he knows how many columns are necessary and hearranges accordingly the essential material which is kept under hiscare. When he does not come the next day the next man who is giventhat work has to start all afresh. If indeed a worker has informed themanagement ahead that he is unable to work, alternative ways andmeans of executing the work entrusted to him will be planned out.butwhere he merely fails to turn upswithout notice, the management waitsfor him for an hour or two expecting his attendance and it then becomesdifficult to assign that job to another workman as that workman also isinvariably busy with some other task entrusted to him.
Moreover in a printing press there iB often work of great urgency whichcannot be put off without detriment to the business and to the reputationof the press. It may for example be the printing of a programme forsome event or an invitation to a function. These must be in the hands ofthe customer, well ahead of the event in question and when unexpectedabsences of workmen disrupt the working of the press customers aredisappointed and the entire business suffers.
Having regard to these factors it would appear that the gravamen ofthe employer’s complaint against the workman was frequent absenceswithout prior leave and that was the matter to which the President wasrequired to give liis attention. The employer had made it quite clear inparagraph 3 of his answer that the services of the employee wereterminatedon the ground of misconduct and particularly of absencewithout prior permission over a period of time although warned by theemployer. . . ”
The principal question which thus arose for determination on these factswas whether the employee, despite repeated warnings that he should notabsent himself without notice to the management, was entitled to keepcontinuing in this course of conduct month after month.
The President on the other hand seems to have concentrated his atten-tion on an examination of the question whether the total number of daysleave taken by the workman was within or in excess of his leave entitle-ment. Having thus directed his attention to an issue which did notrepresent the crux of the dispute the President has relied on an admissionby the Manager of the press that the leave taken by the workman was notexcessive and has proceeded on the footing that the employee actedwithin his leave entitlement. He supports this conclusion by referenceto the Manager’s further admission that the workman still had in 1967seven days’ leave not availed of.
186WEERAMANTRY, J.—Colombo Apothecaries Co., Ltd. v.
■Ceylon Press Workers' Union
After giving his attention to the question whether the leave taken waBin excess of the amount of leave to which the employee was entitled, thePresident has thereafter expressed the view that the employer waB notentitled to rely on the absence which had earlier been excused and thatthe employer should not have framed charges on the workman in respectof such dayB.
All these lose sight of the basic factor that a business establishment—and particularly one of this nature—cannot function efficiently whenemployees keep away without leave except in unavoidable and unforeseencircumstances such as sudden illness. It is to be remembered that whilean employee is no doubt entitled to h'is quota of leave, he must not, asfar as is avoidable, draw on this leave without prior notice to the manage-ment ; nor must he repeatedly draw on' such leave in such a manner aswould throw out of gear the work of the establishment ho serves.
A management which has been considerate enough to excuse anemployee repeatedly in respect of such defaults cannot in my view bepenalised for its own considerateness. It is true that where defaults arerepeated and are excused over and over again, with a warning that theyshould not be repeated, the very last default viewed by itself may appearinconsequential and insufficient of its own force to justify drastic actionby the employer. This would however be a most unrealistic way ofviewing the matter, for before a Labour Tribunal one is not’concernedwith technicalities. It is-to be remembered that in considering disputesof this nature we are not in the technical field of estoppel where by, reason of one party’s acceptance or forgiveness of another’s conduct heis prevented from placing any reliance whatsoever thereon.
The fact that an earlier default had been pardoned or. excused does not,in my view, wipe it off the slate so completely as to render that defaulttotally irrelevant. That default assumes relevance and importancein the context of a complaint by the employer of successive and repeateddefaults of the same nature. When one is considering how reasonableor unreasonable has been the conduct of each party, it would be wrongto view the final act in the series in isolation as though it existed all byitself. Here as elsewhere in the field of labour law, a proper assessmentof a dispute can only be made against the background of the conduct andrelationship between the parties.
Labour laws must be worked with justice both to employee andemployer and I do not consider realistic or satisfactory a view of alabour dispute which reduces an employer to a state of impotence in theface of repeated defaults of the same nature by the employee. Therecan very well come a time when the employer makes up his mind thathe will not suffer his indulgence to be taken advantage of any longer.It is then for the Tribunal to see whether in the context of his entireconduct towards bis employer, the latter has been reasonable in takingthe action he did.
WEERAMANTKY, J.—Colombo Apothecaries Co., Ltd. n.187
Ceylon Press Workers* Union
Any other view would seem to be lacking in that broad and generalapproach to labour disputes which it is the very aim and object of thelabour laws to foster.
A point wa3 made on behalf of the employee that the conduct of theemployer was an act' of revenge on the part of the employer for certaintrade union activities on the part of the employee. On this point thePresident has observed that no direct evidence was led by the applicantUnion to show that the terfhination of the employee’s services was mainlydue to hi3 trade union activities and that there has been no evidence at allon this matter. The President however observes that “ it is quiteclear from the evidence that Peter Perera (the workman) being thePresident of the branch Union and the demand for , increased wagescoming from the parent union, had some repercussions on the employerespecially7 in view of the 'strike that took place on 20th December 1967until 16th January 1968 ”. –
Findings of this nature cannot rest on speculation in the absence ofspecific evidence. In the course of a long cross-examination of the pressManager not a single suggestion direct or indirect was put to him thatthe termination of the employee’s services was in any way attributableto victimisation for trade union activities, and indeed there is no referenceto such an allegation in the application of the employee. It would appeartherefore that the President was travelling outside the scope of the disputeas presented to him when he goes on, in the absence of evidence, to holdthat the termination of the employee’s services was attributable to themanagement’s disapproval of his trade union activities.
I may in this connection refer also to R63F which is a long letter ofexplanation by the employee in reply to the show cause notice. He thererelies on various grounds to justify his absences and assures the manage-ment that he will try his best to improve his attendance and see to itthat he gives no cause for complaint. It is significant that nowhere inthis letter is there the slightest suggestion of victimisation or unfairconduct towards him in consequence of hiB trade union activities. Thesame applies to the letter of explanation R54A which followed R53F.
I have also perused the submissions made by the applicant to theTribunal and there is nowhere in those submissions any allegation ofvictimisation.' In these circumstances the fact that the employee wasan official of a union which was pursuing its normal efforts to better theconditions of its members cannot be used as the basis for a speculativefinding that the employee’s union activities were the cause of his dismissal.Far less may such a speculative view he used as the basis of a finding thatthe employer’s termination of the employee’s services was not just andreasonable.
In view of these observations I consider that the order of the LabourTribunal President ought not to stand. Even as an employer has hisduties towards his employees it must be remembered that there are duties
WEERAMANTRY, J.—Fernando v. Ranepura
owing by the employee to the employer the disregard of which mayparalyse the very activity which is their mutual source of sustenance.
This court has time and again repeated the principle that although,there is no appeal to it on questions of fact it will interfere where theTribunal has misconstrued the questions at issue and directed its attentionto the wrong matters. So also will it interfere where there has been afailure by the Tribunal to consider the issues which actually arise beforeit or has arrived at findings which bear no relation to the evidence ledbefore it.
Acting on these principles I would set aside the order of the President,allow this appeal and dismiss the employee’s application with costs.
THE COLOMBO APOTHECARIES CO. LTD., Appellant, and CEYLON PRESS WORKERS’S UNION,