VANIJA HA KARMIKA SEVAKA SANGAMAYA
UNILEVER CEYLON LIMITED
M. D. H. FERNANDO, J.
GOONEWARDENA, J. ANDP. R. P. PERERA, J.
S.C. APPEAL NO. 54/94H.C.A. NO. 495/92L.T. NO. 2/194/88DECEMBER 13, 1994.
Industrial Dispute – Collective Agreement – Breach of clause re. absence withoutreason – Was failure to terminate the workman's services a breach of clause 31(c)a pardon ? – Medical leave.
A collective agreement of 30.5.85 between a workmen's union and the employerhad provisions dealing with absence without leave in clause 31. Clause 31(c)provided for termination of services where an employee has been absent for 40days^nore than his entitlement without adequate reasons. The Union agreed notto support in any way a claim for reinstatement or other relief on behalf of such aworkman.
The workman had a record of serious absenteeism. In 1986 he was repeatedlyreminded of the consequences of continuous absenteeism. On 16.10.86 he wasasked to show cause why he should not be dismissed or otherwise disciplinarilydealt with for absenting himself from work without authority for over 40 days in theyear. After inquiry the employer wrote on 26.11.86 as follows:
. . we would have been fully justified in terminating your services. However, inorder to give a you a final opportunity to improve in your attendance, we will nottake such a drastic step on this occasion instead (sic) warn you. In future you arerequired to adhere to the following conditions regarding leave.
"1. This year (1986) you will not take any more unauthorised leave.
In the years 1987 and 1988 you should not exceed 10 days unauthorisedabsence for each year.
If you are sick you are required to obtain sick leave from the CompanyMedical Officer and no medical certificate issued by (an) outside MedicalPractitioner will be accepted, unless approved by the Company MedicalOfficer.
In the event of the breach of any of the above conditions, you are finally warnedthat your services will be terminated forthwith”.
The workman acknowledged this letter without any protest about theseconditions.
By letter dated 20.11.87 the employer terminated the workman’s servicesbecause –
as at 10.11.87 in addition to 26 days authorised leave and 18 days sick leave,the workman had taken 12 1/2 days unauthorised leave, and
having been absent on 7.11.87 and 9.11.87, the workman only brought amedical certificate from an outside medical practitioner, and did not report to theemployer's medical officer despite being told to do so by his Manager.
What the employer did, when it found the workman guilty of unauthorisedleave in breach of clause 31(c) of the Collective Agreement in 1.986 was to deferthe punishment for a period of 2 years. The offence was neither forgiven tiorpunished with immediate effect. Instead the punishment was suspended for twoyears, conditional on improved performance in each of the next two years. Oneyear later when it was found that the workman had failed to comply with theconditions, the punishment became effective and he was dismissed. It would bewrong to view the final act in the series all by itself. Here the final act in the serieswas unauthorised absence in 1987, but that was not the cause of termination. Thecause was absenteeism in 1986. By his defaults in 1987 the workmen disentitledhimself to the benefit of the deferment or suspension of the punishment. Thedismissal was sanctioned by clause 31(c).
The annual leave entitlement of 31 days was in excess of the statutoryrequirements. It was the employer's practice to deduct five days if in thepreceding year an employee had taken excessive unauthorised leave. Suchdeduction was made known to the affected employees at the commencement ofthe year. This evidence was not challenged in cross-examination.
The workman's evidence was led in a form which virtually confirmed theemployer's position.
In regard to the medical certificate the usual procedure was irrelevantbecause the workman was required to comply with a special procedure as anobvious safeguard against the abuse of the sick leave facility.
Case referred to:
1. Colombo Apothecaries Co., Ltd. v. Ceylon Press Workers' Union (1972) 75N.L.R. 182, 186-187.
APPEAL from judgment of the High Court.
W. Dayaratne for appellant.
S. L Gunasekera for respondent.
Cur adv vult.
January 31, 1995.
M. D. H. FERNANDO, J.
The Applicant-Respondent-Appellant Union (“the Union") onbehalf of its member, the workman, contends that the Respondent-Appellant-Respondent (“the Employer”) had terminated the servicesof the workman in breach of clause 31 of the Collective Agreementdated 30.5.85 between the Union and the Employer. Clause 31provides:
“31. Absence without Adequate Reason
The following rules regarding absence without adequatereasons will continue to apply:
Where an employee has been absent for 20 days more thanhis entitlement without adequate reasons, he will lose his annualincrement.
Where an employee has been absent for 30 days more thanhis entitlement without adequate reasons, his job rate will bewithdrawn …
Where an employee has been absent for 40 days more thanhis entitlement without adequate reasons, his services will beterminated. The Union agrees not to support in anyway, a claimby such persons for reinstatement or other relief.
Where employees' services are to be terminated under thisprovision, Management will take a sympathetic view if suchemployee has not been disciplinarily dealt with for badattendance during the 5 years immediately preceding.
The Union shall be notified in each case of the proposedtermination if the Union disagrees with the Management that theabsence was without adequate reasons the matter will bereferred to the Commissioner of Labour whose decision will befinal.
Absence on any grounds other than the following will beconsidered as “without adequate reasons" – hospitalisation,prolonged or chronic illness certified by the Company Doctor tobe such.”
Special leave to appeal was granted on the question “whether theview of the High Court that the workman was liable to dismissal iscorrect having regard to the terms of the Collective Agreementreferred to in these proceedings, and the particular facts andcircumstances of this case."
The workman had a record of serious absenteeism. In 1986 hewas repeatedly reminded of the consequences of continuingabsenteeism. On 16.10.86 he was asked to show cause why heshould not be dismissed or otherwise disciplinary dealt with forabsenting himself from work without authority for over 40 days in theyear. After inquiry, the employer informed him by letter dated26.11.86:
. . we would have been fully justified in terminating yourservices. However, in order to give you a final opportunity toimprove in your attendance, we will not take such a drastic stepon this occasion instead [sic] warn you. In future you arerequired to adhere to the following conditions regarding leave.
This year (1986) you will not take any more unauthorisedleave.
In the years 1987 and 1988 you should not exceed 10 daysunauthorised absence for each year.
If you are sick you are required to obtain sick leave from theCompany Medical Officer and no medical certificate issued by
[an] outside Medical Practitioner will be accepted, unlessapproved by the Company Medical Officer.
in the event of the breach of any of the above conditions, youare finally warned that your services will be terminatedforthwith.”
The workman acknowledged this letter, without any protest aboutthese conditions.
By letter dated 20.11.87 the Employer terminated the workman’sservices because –
as at 10.11.87, in addition to 26 days authorised leave and18 days sick leave, the workman had taken 12 1/2 days unauthorisedleave; and
having been absent on 7.11.87 and 9.11.87 the workmanonly brought a medical certificate from an outside medicalptectitioner, and did not report to the Employer's medical officerdespite being told to do so by his Manager.
After inquiry the President of the Labour Tribunal held that theworkman's absenteeism in 1986 would have justified the Employer interminating his services in that year, but not at its discretionthereafter; that the Employer's letter dated 26.11.86 had imposed acondition which contravened the Collective Agreement (i.e. bypermitting dismissal for unauthorised leave exceeding ten days); andthat the Employer having pardoned the workman, could not thereafterdeny him the benefits to which he was entitled under the CollectiveAgreement, or impose new conditions. On this basis, he held that thetermination was unjustified and ordered reinstatement with threeyears back wages.
On appeal the High Court held that the attendance of the workmanhad been woefully unsatisfactory; that the Labour Tribunal hadviewed the Employer’s merciful decision not to exercise its right todismiss the workman in 1986 in an unreasonable and unfair light -namely that the Employer must either exact the extreme penalty ofdismissal or do nothing; that the Employer was entitled to temper thepunishment with mercy; and that the decision not to dismiss theworkman in 1986 did not mean that the default was completely wipedoff the slate, echoing the observations of Weeramantry, J., in ColomboApothecaries Co. Ltd. v. Ceylon Press Workers' Union (,). LearnedCounsel for the Union conceded that the Union had led no evidencethat any punishment had been imposed on the workman in 1986, as,for example, that he had been denied his annual increment, or thathis job rate had been withdrawn. He submitted that the reasoningand conclusion of the Labour Tribunal was correct, and that thetermination was wrongful, because it was for 12 1/2 daysunauthorised absence in 1987, contrary to clause 31(c). This isuntenable. What the Employer did, when it found the workman guiltyof 10 days unauthorised absence in 1986, was to defer thepunishment for a period of two years. The offence was neitherforgiven nor punished'with immediate effect. Instead, the punishmentwas suspended for two years, conditional on improved performancein each of the next two years. One year later when it was found thatthe workman had failed to comply with the conditions, tyepunishment became effective, and he was dismissed.
I would respectfully adopt Weeramantry, J.'s observations whichapply with equal force today:
"… it would be wrong to view the final act in the series asthough it existed all by itself … a proper assessment of adispute can only be made against a background of the conductand relationship between the parties … Any other view wouldseem to be lacking in that broad and general approach tolabour disputes which it is the very aim and object of the labourlaws to foster."
Here the “final act in the series” was unauthorised absence in 1987,but that was not the cause of termination. The cause wasabsenteeism in 1986; by his defaults in 1987 the workman disentitledhimself to the benefit of the deferment or suspension of thepunishment. Let me leave aside for the moment legal niceties aboutdefaults, conditions, and punishments. If one were to ask “why wasthe workman dismissed”, it would be quite unreal to answer "becauseof absenteeism in 1987"; for that was not the effective cause of thedismissal, but only a proximate cause. The only commonsenseanswer is “because of his absenteeism in 1986, the consequence ofwhich he failed to avert by failing to reform in 1987". The dismissalwas therefore sanctioned by clause 31(c).
To take any other view of clause 31(c) would compel (as thelearned High Court Judge correctly observed) the Employer alwaysto terminate, suppressing every human instinct of leniency orsympathy. That would be unreasonable, not only from the Employer’spoint of view, but especially from the employees’ – which Employeewould wish that preference be given to an interpretation that compelsdismissal for even a first offence, and necessarily denies a secondchance? In the absence of plain words, compelling an interpretationof such severity, I must decline to interpret a contract of employmentin that way. The dismissal was justified by both the letter and the spiritof the Collective Agreement.
Learned Counsel for the Union sought to rely on two matters,wfiich are not dealt with in the Labour Tribunal order, and whichrelated to findings of fact and assessment of evidence; but for theamplitude of the order granting special leave, these could not havebeen raised on appeal. Learned Counsel argued that the workmanwas not in breach of the two conditions set out in the letter dated26.11.86. With scant regard for the Supreme Court Rules, thiscontention was stated in the Union’s written submissions in twoobscure sentences:
“The workman’s services were terminated for non-compliance ofthe above new grounds and furthermore adding into his leaveentitlement the leave he has obtained in the previous year.”
Firstly, he submitted that the workman had exceeded his 1987leave entitlement by only 7 1/2 days; that the annual leave entitlementwas 31 days, but that the Employer had reduced this by five days,improperly and without the workman’s knowledge. He was faced witha serious difficulty. Evidence was led on behalf of the Employer thatthe annual leave entitlement of 31 days was in excess of statutoryrequirements; that it was the Employer’s practice to deduct fivedays if in the preceding year an employee had taken excessive,unauthorised leave; and that such deduction was made known toaffected employees at the commencement of the year. All this wasnot challenged in cross-examination. Learned Counsel glossed overthis default, and insisted that this had been sufficiently contradictedby the workman's evidence-in-chief. Even for this submission all hecould point to was a statement that five days had been cut from theworkman's 1987 leave entitlement. Counsel submitted, with greaterpersistence than logic, that this meant (a) that there was no practiceas claimed by the Employer, and (b) that in any event the workmanwas not aware of any such deduction until after his dismissal in 1987.He contended that this inference had to be drawn because thematter had not been probed or clarified in cross-examination. Thetruth is that the default, if any, was entirely on the part of the Union.Initially, it failed to challenge the Employer’s evidence through cross-examination, and then it led the workman’s evidence in a form whichvirtually confirmed the Employer’s position. Cross-examination couldnot have improved the Employer's case any further, and cross-examining Counsel quite rightly left the matter strictly alone. In thqpecircumstances one must assume that Counsel who then appeared forthe Union acted as he did because he had received instructions thatthe Employer’s position was correct.
Secondly, it was contended that the workman's conduct insubmitting the medical certificate to the leave clerk of the Employerwas in accordance with the usual procedure, and hence he was notin default. Not surprisingly, Counsel could give no answer to thequestion as to how this conduct complied with the second conditionin the letter dated 26.11.86, and the specific instruction, given by theManager to the workman, to present himself to the Employer’sMedical Officer. It was clear that the “usual procedure" was whollyirrelevant in this case, because the workman was required to complywith a special procedure, as an obvious safeguard against the abuseof the sick leave facility. This contention is as untenable as the other.
The appeal must therefore be dismissed. The learned High CourtJudge observed, with justification, that, in supporting the claim of theworkman to re-instatement or other relief, the Union was doing what ithad agreed not to do by Clause 31(c) of the Collective Agreement.
Further the manner in which these proceedings have been pursuedby the Union does not afford me any ground to deprive thesuccessful party of its costs. I accordingly order the Appellant-Unionto pay the Employer costs in a sum of Rs. 5,000/-.
GOONEWARDENA, J. -1 agree.
P. R. P. PERERA, J. -1 agree.