The termination of probationary employment must adhere to statutory requirements, ensuring fair procedure and prior consent are obtained as stipulated by law.

Sobhitha Rajakaruna J.

The Petitioner Company has instituted the instant proceedings seeking a writ of Certiorari quashing the decisions of the 1^st Respondent- Commissioner General of Labour reflected in ‘P2A’ by which the Petitioner was directed to reinstate the 3^rd Respondent who was an employee serving the period of probation at the Petitioner Company. The Petitioner was compelled to reinstate the 3^rd Respondent with effect from 21.04.2022 and pay a sum of Rs. 969,000.00 to him as back wages for the period between 31.10.2021 and 20.04.2022. The 1^st Respondent has made the said Order based on an Application made by the said 3^rd Respondent under the Termination of Employment of Workmen (Special Provisions) Act No. 45 of 1971 (‘TEWA’).

The 3^rd Respondent was recruited by the Petitioner subject to a period of probation with effect from 08.03.2021 and the respective letter of appointment is marked as ‘P2(ii)(a)’. The probation period stipulated in the said letter of appointment is six months and accordingly, such period was due to conclude on 07.09.2021. However, the period of probation of the 3^rd Respondent was extended by two months with effect from 07.09.2021 by a letter bearing the same date, marked ‘P2(iv)’. However, at the inquiry before the Commissioner of Labour the Petitioner has admitted that the said letter ‘P2(iv)’ had not been accepted by the 3^rd Respondent placing his signature (Vide- Proceedings before the Commissioner of Labour on 12.01.2022). Subsequently, by letter dated 31.10.2021, marked ‘P2(iii)’, his services were terminated before the lapse of the said extended period of probation which was due to end on 06.11.2021.

There is no dispute that the services of the 3^rd Respondent were terminated while he was serving during his extended period of probation. In terms of Section 2 (1) of TEWA, it is mandatory that no employer shall terminate the scheduled employment of any workman without (a) the prior consent in writing of the workman or (b) the prior written approval of the Commissioner. The 1^st Respondent issued the impugned order on the basis that the Petitioner has failed to obtain the written consent of the 3^rd Respondent or the prior approval of the Commissioner of Labour before terminating the services of the 3^rd Respondent.

The primary argument of the Petitioner is that the written consent of the 3^rd Respondent is not necessary as the 3^rd Respondent has accepted the said letter of appointment placing his signature which gives the authority to terminate the services during the period of probation without notice. Such arguments are formulated by the Petitioner based on the following contents under the subheading ‘Probation’ in the letter of appointment;

“You will be on probation for a period of 6 months, which may be extended at the discretion of the management. During this period, your employment may be terminated by the Management without notice.”

The Petitioner contends that by accepting the said letter of appointment, the 3^rd Respondent has expressed his consent to the termination of his services by the Petitioner during the period of probation without any notice. However, the Respondents argue that in terms of Section 2 (1) of TEWA, it is mandatory that the Petitioner who is the employer obtain either the written consent of the employee or prior approval of the said Commissioner before terminating the services of such an employee. Thus, the primary question that needs to be resolved by this Court is whether the acceptance of the letter of appointment marked ‘P2(ii)(a)’ by placing the signature can be considered prior written consent of the 3^rd Respondent that is required under the Section 2 (1)(a) of the TEWA.

It is noted that the services of the 3^rd Respondent have been terminated not during the first period of six months of his services but during the extended period of probation which can be considered as the second term of the period of probation. In Lanka Canneries (Pvt) Ltd v. Commissioner of Labou