SUPERINTENDENT OF PUSSELLA STATEPLANTATION, PARAKADUWA
v.
SRI LANKA NIDAHAS SEVAKA SANGAMAYA
SUPREME COURT.
P.S. DE SILVA, C.J..
KULATUNGA, J. ANDRAMANATHAN, J.
S.C. APPEAL NO. 86/95
C. AVISSAWELLA NO. 6/93MARCH 5,1996.
Industrial Dispute – Status of Workman – Casual or permanent – mere lable -■casual employee" not sufficient.
The respondent Union on behalf of M. a workman, applied to the Labour Tribunaltor relief in respect of the termination of services of the workman who was anemployee of the appellant. The appellant's case was that the workman was initiallyemployed in a temporary capacity and was thereafter continued as a casualworker after which his services were terminated: hence he had no right to relief.
Held:
Whilst there is no legal objection to the employment of temporary or casualemployees who do not have the rights of permanent employees, the mere label isnot sufficient to classify a workman as a casual employee, if the real character ofhis employment is that of a permanent employee.,
Cases referred to:
Merril Fernando & Co., v. Deimon Singho (1988) 2 Sri L.R. 242, 245.
Lanka Wafltiles Ltd., v. K.A Cyril S.C. Appeal 55/88 S.C. Minutes of 9th June1992; BASU Reports (1992) Vol. IV Part II P. 40.
Ratnasabapathy v. Asilin Nona 61 N.L.R. 548.
Nanayakkara v. The Director General Central Cultural Fund S.C. Appeal 33/91
S.C. Minutes of 27th January, 1995.
Free Lanka Trading Co., Ltd., v. Commissioner of Labour79 N.L.R. (II) 158.
APPEAL from the judgment of the High Court of Avissawella.
L. C. Seneviratne, P.C. with Lakshman Perera, H. V. Situge, Miss V. H. K.Wickramasighe for appellant.
Daya Guruge with Nimal Jayasinghe for respondent.
Cur. adv. vult.
March 18.1996
P. S. DE SILVA, C.J.,
The respondent union on behalf of M. R. Melinghton, a workmanapplied to the Labour Tribunal for relief in respect of the terminationof services of the said workman who was an employee of theappellant (The Superintendent of Pussella State Plantation) and theSri Lanka State Plantations Corporation who was the 2nd respondentto the application.
The Labour Tribunal held that the workman was initially employedin a temporary capacity and was thereafter continued as a casualworker after which his services were terminated; hence he had noright to relief. Consequently, the application was dismissed. On anappeal by the union the High Court reversed the order of the LabourTribunal holding that on the facts of the case, the character ofemployment of the workman was that of a permanent employee andordered that he be reinstated with back wages. Hence this appeal.
In 1992 the workman was 27 years of age. He says that hisparents had been employed on the Galpussellawa Estate for about30 years and lived in the estate quarters provided by the estate, untilretirement.
The workman was recruited in May 1990 along with others (thetotal number being about 17 men) to make logs of and remove about3000 rubber trees which had fallen due to a gale. He says that theycompleted that work in about one month. But he continued to beemployed thereafter until 01.04.91. During that period he was paidmonthly, but on a daily rate of Rs. 48/-. He had been employed as alabourer for removing uprooted trees, weeding, clearing roads,tapping rubber, replanting trees and applying fertilizer. It is clear thatsuch work was given to him only on a limited number of days in amonth. Hence he had received wages ranging from Rs. 420/- toRs. 850/- a month. He has thus worked on 173 days when hisservices were terminated.
Subject to one contradiction the workman also said that heoccupied the quarters where his father resided during hisemployment on the estate. This, however, was denied by witnessChandrasiri, Field Officer who testified for the appellant-employer.
In support of his claim to permanent status, the workman said thatEmployees’ Provident Fund deductions, Trade Union subscriptions,defence levy and welfare society contributions were made from hiswages; and that he was also paid new year and festival advances. Amonthly deduction of Rs. 35/- was also made from the petitioner'swages as charges due to the Dhobi who washed the clothes of theestate labourers.
The witnesses for the employer admitted the fact that the workmanwas given a variety of jobs as deposed to by him. But theymaintained that such work was only casual in that they so employedhim when permanent workmen were not available. WitnessChandrasiri said that this workman’s name appeared in R1, theregister of casual employees; and that casual employees are notentitled to the facility of purchasing goods on credit from the estateCo-operative Society subject to payments due for such goods beingdeducted from their salary at the end of the month and remitted to theSociety.
The president of the Labour Tribunal held that the workman wasnot entitled to reinstatement or compensation. In making his decisionhe relied on views expressed by S. R. de Silva in 'Legal Framework ofIndustrial Relations in Ceylon', Merril Fernando & Co. v. DeimonSinghoand the decision of this Court in Lanka Walltites Ltd. v. K. A.Cyril.™ According to these authorities, a temporary employeeemployed for a particular job or a casual employee viz. a personwhose employment is “by chance and without regularity” does notenjoy the rights available to permanent employees.
The High Court was of the opinion that on the facts, theemployment of the workman was of a continuous nature; R1 thecasual register was a document maintained for the benefit of theemployer; the true character of his employment was permanent; andthat the authorities relied upon by the tribunal had no application tothis case. Accordingly, the High Court directed reinstatement withback wages, on the basis of Rs. 1248/- a month, calculated at thedaily rate of Rs. 46/-.
Mr. L. C. Seneviratne P.C. for the appellant argued that it waslegitimate for the employer to have engaged the services of the
workman initially on a temporary basis and thereafter as a casualworker. He relied particularly on the Lanka Walltiles Ltd. case {Supra).It was submitted that in that case the facts were very much similar tothe instant case, but this Court set aside the order made by the Courtof Appeal in favour of the workman being of the opinion that as theemployment originally offered to the workman was of a temporarynature, he cannot claim wrongful termination of employment.
Mr. Daya Guruge for the respondent union relied on the judgmentof T. S. Fernando J. in Ratnasabapathy v. Asilin Nona,3' where it washeld that whether a workman is casual or a regular employee is aquestion of fact to be decided on evidence. Mr, Guruge submittedthat the Labour Tribunal President had misdirected himself on theevidence but the High Court made the correct decision,
in Nanayakkara v. The Director General Central Cultural Fund w(where the workman had been employed as a casual worker for alonger period than in the instant case viz. three years), this court heldthat the mere label is not sufficient to classify a workman as a casualemployee. The Court cited Asilin Nona's case (Supra); also FreeLanka Trading Co. Ltd. v. Commissioner of Labour(M where it washeld that an agreement which is facade, to avoid the obligation of theemployer and which described the employee as an “independentcontractor" would be disregarded by Court; and such workmanwould be entitled to the protection under the Termination ofEmployment of Workmen (Special Provisions) Act No. 45 of 1971.
Although Asilin Nona's case (Supra) is helpful on the principle tobe followed in deciding the true nature of employment, the facts thereare not similar; for that was a claim under the workmen'sCompensation Ordinance where the deceased who had beenemployed to repair a house for about 5 weeks on daily pay died of anaccident in the course of employment. Compensation was allowed onthe basis that he was a regular employee. the workman was employed on a casual basis as a “fitters mate" forthe establishment of a new factory, during the period of installation ofmachinery at the work site. The Court was of the view that on thebasis of the workman’s own evidence there was insufficient evidenceto show that the workman continued to work, after the productioncommenced. The evidence in the case before us is different.
It is also relevant to note that in this case, the evidence given onbehalf of the employer, itself shows thaf the description of theworkman as a casual employee was a facade. The employer'switnesses have said that as a mater of policy the employment of theworkmen in the casual register was being interrupted every month;that for that purpose they were not permitted to work throughout themonth; and that this policy was maintained by the establishment, onlegal advice.
It seems to me, thereafter, that whilst there is no legal objection tothe employment of temporary or casual employees who do not havethe rights of permanent employees, in the instant case the facts showthat the description of the workman as “casual” is not true; and thatthe real character of his employment is that of a permanentemployee; hence I am in agreement with conclusion of the HighCourt in that regard and the order made for reinstatement.
However, the order for the payment of back wages, at the rate ofRs. 48/- per day is not justified. In fact, the workman did not engagein regular work, he was content to receive wages on a "casual" basis;there is no evidence that since the termination of his services on01.04.91, he remained unemployed. Hence, I would vary the order ofthe High Court for the payment of back wages and direct that theworkman be reinstated as a permanent employee, without backwages with effect from 15.04.1996. Subject to this variation, I dismissthe appeal and affirm the judgment of the High Court. The appellantis directed to pay the respondent union costs in a sum of Rs. 1500/-.
KULATUNGA, J. -1 agree.
RAMANATHAN, J. -1 agree
Appeal dismissed, subject to variation of the order for payment ofback wages.
