A COMPARATIVE ANALYSIS OF TIME LIMITS IN RELATION TO APPLICATION’S FOR RELIEF BY EMPLOYEES

R.K.S.Suresh Chandra LL.B, LL.M.

Attoney-at-Law

Prior to the introduction of the Industrial Disputes Act and the Labour Tribunals, relief regarding termination of employment was resorted to under the Common Law by instituting actions in the Civil Courts on the basis of breach of contract. However, after setting up of Labour Tribunals, recourse to Civil Courts in relation to relief in respect of termination of employment have assumed less importance.

After the establishment of Labour Tribunals, which were conferred a special jurisdiction regarding termination of employment, the concentration was on the Labour Tribunals rather than on Civil Courts. At the inception, no time limit was laid to make an application to a Labour Tribunal. However, in order to set down a particular time limit an attempt was made by the Minister of Labour to frame a regulation under the Law setting up a time limit of three months to make an application to a Labour Tribunal from the date of termination of employment. This regulation was successfully challenged as being ultra vires the objectives of the Act and set aside. Vide Rambanda v River Valleys Development Board 71 NLR 25.

However, the Legislature by an Amending Act (Ac No.53 of 1973) imposed a time limit of six months from the date of termination of employment to make an application to a Labour Tribunal for relief. This time limit of six months was further reduced to three months by a further Amending Act (Act No. 14 of 2003) which came into operation with effect from 1st January 2004.

A question has arisen regarding the effect of the Amending Act No. 11 of 2003 on terminations which took place before 1.1.2004. If applications are made after 1.1.2004 in respect of terminations which took place before 1.1.2004, one view is that the Amending Act is not retrospective in operation and an application could made within six months and another view is that if relief is sought for after 1.1.2004 it would be under the Amending Act and that such applications should fall in line with the three month time limit.

The Termination of Employment of Workmen (Special Provisions) Act No.45 of 1971 which empowers the Commissioner of Labour to inquire into matters regarding non-disciplinary termination of services did not lay down any time limits within which a complaint should be made to the Commissioner. However, by an Amending Act in 1988 (Act No. 51 of 1988) a time limit of six months was imposed regarding complaints to the Commissioner of Labour in respect of termination of employment. Although recourse is rarely made to Civil Courts regarding termination of employment, there too a time limit applies regarding actions to be instituted in terms of the Prescription Ordinance and action should be instituted within one year from the termination of the contract.

Therefore the law is quite clear in setting down the time limits regarding seeking relief in relation to termination of employment in respect of the above statutes. However, two areas need to be considered which have brought about an anomalous situation.

The first is in relation to the powers of the Minister in referring industrial disputes for compulsory arbitration in terms of Section 4(1) of the Industrial Disputes Act. According to the section, the Minister may refer a “minor dispute” for compulsory arbitration. Acting under this provision it is often seen that the Minister refers matters relating to termination of employment for arbitration. The phrase “minor dispute” has not been defined in the Act and therefore it has been used to refer matters relating to termination of employment also for arbitration in terms of this provision. In making such reference for arbitration no account is taken of any time limits. Very often such references are well beyond the time limits laid down under the Industrial Disputes Act and the Termination of Employment of Workmen Act. There have been instances where this course is adopted to overcome the difficulty regarding lapse of time in relation to those Acts. In fact there have been instances where several years have lapsed after employment has been terminated when such matters are referred for arbitration. There is on record one instance where a reference was made regarding an employee of the Ceylon Petroleum Corporation where the reference was made by the Minister nine years after the employees services had been terminated. This is a highly unsatisfactory situation as it becomes a means by which prescribed time limits laid down by law could be overcome by administrative maneuvering.

The other instance which causes concern relates to Statutory Bodies and Corporations. Complaints are made under the Human Rights Commission of Sri Lanka Act No.11 of 1996 in relation to termination of employment by Statutory bodies and Corporations giving such complaints the flavour of violation of fundamental rights. The Commission which was set up to inquire into complaints regarding violations of human rights is called upon to deal with matters relating to contracts of employment for which provision is available under the Industrial Disputes Act and the Termination of Employment of Workmen Act.

Complaints to the Human Rights Commission are made without adhering to any time limits. There have been many instances where complaints are made several years after employees have ceased to be employees on the basis that their human rights have been violated. The Commission accepts such complaints and inquires into same and very often adopt a sympathetic attitude towards employees who make such complaints. The Commission after inquiring into these complaints make recommendations which would not have been possible under the statutes dealing with the granting of relief regarding termination of employment. Here again employees who have missed out in making applications to the Commissioner of Labour or the Labour Tribunals within the prescribed time limits could make complaints to the Human Rights Commission and seek relief.

In view of the growing importance placed on Labour Legislation and matters related thereto in the modern day it is time that serious note be taken of the above mentioned anomalies. The Legislature should take steps to remove these anomalies so that the Labour law relating to granting of relief consequent upon termination of employment could be more definite and be uniformly applied.