008-SLLR-SLLR-2006-V-1-JOHN-KEELLS-LTD-.-vs.-CEYLON-MERCANTILE-INDUSTRIAL-AND-GENERAL-WORKERS-UN.pdf
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JOHN KEELLS LTD.VSCEYLON MERCANTILE, INDUSTRIAL ANDGENERAL WORKERS UNION AND OTHERSCOURT OF APPEAL,
SRIPAVAN, J. ANDSRISKANDARAJAH, J.
CA 1531/2003
SEPTEMBER 9 AND OCTOBER 8, 2004
Writ of certiorari – Industrial Disputes Act, section 3(1) (d)-Arbitration-Just andequitable concept in Labour Law-Arbitrator not relying on evidence led atdomestic Inquiry-ls it lawful?-Alternative relief-Loss of confidence-Circumstances-Evidence Ordinance-Applicability.
The services of the workman, who was employed as an office minor staff wasterminated for misconduct after a domestic inquiry. The dispute was referredfor arbitration and the Arbitrator after inquiry, re-instated the employee withback wages. The employer petitioner sought to quash the said order on thebasis that (a) it is ultra vires, illegal and null and void, and (b) the Arbitrator hadnot considered the evidence of the eye witness and had refused to accept asevidence in the arbitration proceedings, the evidence given by the virtualcomplainant at the domestic inquiry.
Held:
(i) The evidence given before the domestic inquiry was not under oath,and therefore the truthfulness of the evidence is not established.
Per Sriskandarajah, J.
“A charge against a person has to be proved by direct evidence. Hencereliance cannot be placed in her evidence unless it is before the Arbitrator.Even though the Evidence Ordinance is not strictly applicable to inquiriesheld under the Industrial Disputes Act, the principle behind the admissibilityof evidence should be borne in mind in accepting such evidence. Thepurpose of leading direct evidence is to test the credibility of a witness andto test the truthfulness of the facts given by the witness when giving evidence.
In the circumstances pleaded, the Arbitrator has correctly come to theconclusion that the evidence of the virtual complainant given at the domesticinquiry should not be relied upon in considering the award”.
CA
John KeeHs ltd. vs Ceylon Mercantile, Industrial, and
General Workers Union and others (Sriskandarajah, j.)
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(ii) There are circumstances, where alternative relief in lieu ofre-instatement is granted even if the workman is not found guilty tothe charge. Instances include where the allegation against theworkman is such that it would not promote harmonious relationsbetween parties or by this allegation the employer lost confidencein the workman. The evidence led does not show that thereinstatement will affect the harmonious relationship between theparties and further, the workman is only an office minor staff-thequestion of loss of confidence would not arise. Further theallegation of misconduct is not related to his office functions.
APPLICATION for a writ of certiorari.
Gomin Dayasiri with Manoji Jinadasa for petitioner.
Pradeep de Silva for 1 st respondent
Uresha de Silva, State Counsel for 2nd respondent.
Cur.adv.vult
October, 20, 2004SRISKANDARAJAH, J
The petitioner is a limited liability company in which the workman W. A. S.Jayaweera was employed as an office minor staff. This workman’s servicewas terminated tor misconduct after a domestic inquiry. The 2nd respondentmade an order under Section 3(1 )(d) of the Industrial Disputes Act referringthis dispute to the 3rd respondent who was appointed as the arbitrator.The workman was represented by his trade union the 1st respondent inthe arbitration proceedings.
The dispute referred for arbitration was as follows : “whether thetermination of employment of W. A. S. Jayaweera by John Keells Limitedis justified ; if not to what relief the said workman is entitled to". After aninquiry the 3rd respondent made an award on 03.06.2003 wherein he heldthat the dismissal of the workman was unjustified and awarded reinstatementon or before 1 st July 2003 with back wages from 01.09.1997 calculated atRs. 6,174 per month. This award is marked as X9.
The petitioner submitted that the said award is ultra vires and/or illegaland/or null and void and/or no force and effect in law and/or excess orwithout jurisdiction and therefore it should be quashed for reasons set out
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in Paragraph 15 of the Petition. The counsel for the petitioner submittedthat the arbitrator when coming to the conclusion has not considered theevidence of an eye witness, namely, Omar who saw Ms. Kotalawala thefemale employee of the petitioner with a purple patch on her skirt and theworkman W. A. S. Jayaweera apologizing to her. The counsel furthersubmitted that this was a major lapse in the consideration of evidence bythe learned arbitrator to determine the justifiability of the termination ofservices. The counsel urged that the arbitrator had relied heavily on thefact that Ms. Kotalawala did not give evidence before him and submittedthat he has erroneously refused to accept as evidence in the arbitrationproceedings, the evidence given by this witness at the domestic inquiry.Therefore the contention of the counsel was that non consideration of this’ material evidence was a complete violation of the “just and equitableconcept” in labour law and constitutes an error on the face of the record.
The arbitrator in his award has given his reasons for not relying on theevidence of Ms. Kotalawala (virtual complainant) led at the domestic inquiry.According to him a domestic inquiry cannot be considered as a judicialinquiry and the evidence in a domestic inquiry is not led after administeringoath. Hence reliance cannot be placed in her evidence unless it is ledbefore the arbitrator. A charge against a person has to be proved by directevidence . But the rules of evidence provided in the Evidence Ordinancepermit evidence led in a former judicial proceedings to be led in asubsequent judicial proceeding in exceptional circumstances where thewitness cannot be found or cannot be brought without unreasonable delayor expenses or the witness is prevented from giving evidence. Even thoughthe Evidence Ordinance is not strictly applicable to inquiries held underthe Industrial Disputes Act, the principle behind the admissibility of evidenceshould be borne in mind in accepting such evidence. The purpose of leadingdirect evidence is to test the credibility of a witness and to test thetruthfulness of the facts given by the witness when giving evidence. If thisopportunity is denied to a tribunal then only on exceptional circumstances,it can accept evidence subject to the aforesaid test.
As observed by the arbitrator, the evidence given before a domesticinquiry is not under oath and therefore the truthfulness of the evidence isnot established. In this domestic inquiry the workman against whom theinquiry was held was not permitted to retain counsel. It appears from theproceedings that the workman himself was given an opportunity to cross
CA
John Keells ltd. vs Ceylon Mercantile, Industrial and
General Workers Union and others (Sriskandarajah, j.)
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examine this witness. This may be to comply with the rules of naturaljustice. In this instant case the petitioner has sent two letters to Ms.Kotalawala and thereafter did not make any attempt to summon thiswitness and to lead her evidence. The submission of the petitioner is thatall endeavors to summon this witness were made who is no longer workingin the petitioner’s company. The Human Resources Manager, MithrakaFernando in his evidence before the arbitrator on 07.11.2001 admitted thateven though letters were sent to Ms. Kotalawala there was no responsefrom her. He also admitted that he had not taken personal interest incontacting her over the telephone but he came to know through othersthat the witness was threatened and was told not to give evidence. Thepetitioner did not call any witness to substantiate this fact.
There is no evidence to prove that this witness was threatened orprevented from giving evidence. According to the Human Resource, Managerthis witness is working in Colombo. In the absence of sufficient proof thatthe witness cannot be brought to give evidence it is dangerous to admitthe evidence given by that witness in an earlier proceedings which was notgiven under oath or subjected to proper cross examination. Under thesecircumstances the arbitrator has correctly come to the conclusion thatthe evidence given by Ms. Kotalawala at the domestic inquiry should notbe relied upon in considering the award.
The petitioner further submitted that the arbitrator has failed andneglected to consider the evidence of the eye witness Omar. The arbitratorin his award has stated that he has carefully and diligently considered allthe evidence led in the case and was of the considered view that thecompany has failed to prove the guilt of the accused workman of theoffense he was charged with.
It appears that the arbitrator has not dealt with the evidence of Omar inthe award but he may have considered this evidence in arriving at hisconclusion. The evidence of Omar in relation to the charge of misconductis in pages 6 and 7 of the proceedings before the arbitrator dated 12.01.2000marked X5. Witness Omar has stated that his attention was drawn towardsAnusha Kotalawala when she was talking to Jayaweera. This witnessalso said that he saw an ink stain in the skirt of Anusha. When he wasquestioned whether he saw the incident, he said he saw them only afterthe incident. This witness also said that he saw Jayaweera following Anushaand saying “I am sorry Miss Anusha”. This witness also said that he didnot see anything in the hand of Jayaweera. This is the evidence of Omar in
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relation to the incident. From this evidence it appears that he is not aneyewitness to the incident but a person who has seen a conversationbetween Jayaweera and Anusha. The fact that Jayaweera apologized toAnusha cannot be construed as a confession. This witness who claims tohave seen Jayaweera and Anusha immediately after the incident had saidthat he has not seen anything in the hand of Jayaweera. This evidence isnot sufficient to establish a charge of misconduct. Therefore the failure todeal with this evidence in the arbitrator’s award will not make any differencein the outcome of the award.
When considering the totality of the arbitration inquiry the only witnesswho can speak of the incident is the virtual complainant Anusha Kotalawala.But she did not give evidence before the arbitrator; the other witness isOmar who claims that he did not see the incident but he only saw theconversation between Anusha the complainant and Jayaweera theworkman charged for misconduct. According to this witness he has seenthe complainant in a disturbed stage and there is ink stain on her skirt buthe said he saw Jayaweera closer to her but he did not have anything inhis hand. Other than these witnesses there is no witness to speak to theincident. In these circumstances the arbitrator had come to the correctconclusion that the company has failed to prove the guilt of the accusedworkman of the offense he is charged with.
The counsel for the petitioner submitted that even though the arbitratorhad come to the conclusion that the termination is unjustified, yet there isa major error in the award of the learned arbitrator, namely he has failed toconsider two primary principles of industrial law. Firstly, to evaluate theevidence placed before the learned arbitrator; and secondly the need toact judicially at the inquiry between the employer and employee. In thisregard the counsel submitted that the learned arbitrator has not given hismind to the question of relief and has automatically awarded reinstatementwith back wages to the workman without considering the evidence andanalyzing whether or not the relief is suitable in the given circumstancesof the case. He has a duty imposed by law to consider what is the properrelief and he has failed to consider other alternative relief available which isessential for a just an equitable award. The counsel further contended thatthere could be cases where such a consideration of the relief is not essential.But the evidence led in this case warrants a consideration on the questionof relief for the reason that there was a trade union action in the place ofwork and there were certain employees who did not take part in the
CA
John Keells ltd. vs Ceylon Mercantile, Industrial and
General Workers Union and others (Sriskandarajah, j.)
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picketing and they were harassed and abused. The accused workmanwas a union member and the female employee he allegedly harassed wasa member who has resigned from the union and did not take part in thetrade union action of picketing. Therefore the arbitrator could haveconsidered alternative relief.
There are circumstances where alternative relief in lieu of reinstatementis granted even if the workman is not found guilty to the charge. Instancesinclude, where the allegation against the workman is such that it wouldnot promote harmonious relation between parties or by this allegation theemployer lost confidence in the workman. In this instant case there is noevidence whatsoever against the workman in relation to the charge framedagainst him and also there is no evidence that he harassed or abusedother employees or created industrial unrest, (J)n the other hand accordingto the evidence led, the workman has nothing to do with this incident andthere is evidence to the contrary to state that the workman has gone out ofthe premises during the relevant time. This is borne out by the log entrymade at the gate in the vehicle movement chart. According to this entrythe workman left the premises at 3.07 p.m. This entry was made by thesecurity officer at the gate. According to the charge the incident has takenplace at 3.20 p.m. The female employee who is supposed to have beenhumiliated is not working in the petitioner’s company now. There is noallegation of misconduct against this employee in relation to the employeror other employees; therefore the reinstatement of this employee will notaffect the harmonious relationship between the employer and theemployee.
In considering the question of loss of confidence the workman is onlyan office minor staff; he will not fall within the category of officers such asaccountants, cashiers, watchers and bank employees who occupypositions of confidence. In addition the allegation of misconduct is notrelated to his official function. Therefore there cannot be a loss ofconfidence in the workman. Under these circumstances the arbitrator hasno alternative but to reinstate the workman with back wages. For thereasons stated above I dismiss this application without cost.
SRIPAVAN, J. -1 agree.
Application dismissed.