PACKWELL LANKA (PVT) LTD

PACKWELL LANKA (PVT) LTD

Vs.

COMMISSIONER GENERAL OF LABOUR AND OTHERS

COURT OF APPEAL
SAMAYAWARDHENA, J.
CA/WRlT/328/2016

Writ of certiorari-Termination of Employment of Workmen (Special Provisions) Act, No. 45 of 1971, sections 2(1), 2(4), 2(5), 5, 6-Termination of scheduled employment-Punishment by way of disciplinary action-Lack of jurisdiction of the Commissioner General of Labour-Industrial Disputes Act, No. 43 of 1950, sections 31B(1)(a), 31B(7)

The petitioner-employer filed this application seeking to quash by way of certiorari the order of the Commissioner General of Labour made in terms of section 6 of the Termination of Employment of Workmen (Special Provisions) Act, No. 45 of 1971,whereby the petitioner was ordered to reinstate the employee with back wages. The petitioner moved the Court of Appeal to quash the said decision by a writ of certiorari on the ground that the Commissioner did not have jurisdiction to make that decision as the termination was a punishment imposed by way of disciplinary action.

Held:

1. Although section 2(1) of the Act enacts that no employer shall terminate the scheduled employment of any workman without the prior consent in writing of the workman or the prior written approval of the Commissioner, the effect of section 2(4) is that if the termination is a punishment imposed by way of disciplinary action, the Commissioner has no jurisdiction to hold the inquiry. The Commissioner cannot inquire into the genuineness or correctness of that assertion of the employer. The employee shall seek relief in the Labour Tribunal.

2. Non-compliance with section 2(5) (whereby the employer is required to inform the workman in writing the reasons for the termination within two days), does not confer jurisdiction to the Commissioner, if the Commissioner has otherwise no jurisdiction to inquire into the matter.

Cases referred to:

1. Hiddelarachi v. United Motors Lanka ltd [2006] 3 Sri LR 411
2. St. Anthony's Hardware Stores ltd v. Ranjith Kumar [1978-79] 2 Sri LR 6 at 8

APPLICATION for Writs of Certiorari.

Saliya Edirisinghe for the Petitioner.

Anusha Fernando, D.S.G., for the 1st-3rd Respondents.

cur. adv. vult.

June 13, 2019

SAMAYAWARDHENA, J.

The petitioner-employer filed this application seeking to quash by way of certiorari the order of the 1st respondent Commissioner General of Labour marked P1 made in terms of section 6 of the Termination of Employment of Workmen (Special Provisions) Act, No. 45 of 1971, as amended, whereby the petitioner was ordered to reinstate the 4th respondent employee with back wages.

Learned counsel for the petitioner challenges this order on several grounds.

One such ground is that the 1st respondent did not have jurisdiction to hold the inquiry and make the said determination.

According to section 2(1) of the Act, 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 General of Labour.

Section 2(4) of the Act states that:

For the purposes of this Act, the scheduled employment of any workman shall be deemed to be terminated by his employer if for any reason whatsoever, otherwise than by reason of a punishment imposed by way of disciplinary action, the services of such workman in such employment are terminated by his employer.

This means, if the termination is a punishment imposed by way of disciplinary action, the Commissioner General of Labour has no jurisdiction to hold the inquiry.

Section 2(5), introduced to the principal Act by-Act No.51 of 1988, reads as follows:

Where any employer terminates the scheduled employment of any workman by reason of punishment imposed by way of disciplinary action the employer shall notify such workman in writing the reasons for the termination of employment before the expiry of the second working day after the dat

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