SC rules completion of employee’s work should be determined by employer

By Lakmal Sooriyagoda 
The Supreme Court in a judgment relating to an industrial dispute case held that it is a matter for the employer, not the employee, to decide whether the work for the day of an employee was completed or not.

Supreme Court three-judge-bench comprising Justice Buwaneka Aluwihare, Justice Vijith K. Malalgoda and Justice E.A.G.R. Amarasekara delivered this judgment in respect of an appeal filed by a hotel chef challenging the termination of his services from a hotel in Beruwala. He was accused of sleeping while on duty.

The Supreme Court further held that once an employee reports to work the common norm is that the employee would remain in his or her workstation until the end of duty hours. The Supreme Court upheld the High Court judgment that hotel management was justified in terminating the services of the petitioner.

The petitioner Suriyarachchige Raju had been employed with the Barberyn Reef Hotel in Beruwala as a Chef from 1992 to 2010.  On 21st April 2010, while on duty, the petitioner had been found sleeping. The reason attributed by the petitioner for the alleged conduct was the aggravation of his diabetic condition.  When he reported to work on the following day (22nd April), he had been served with a letter, suspending him from service with effect from the said date.

The allegation against the petitioner was he neglected mandatory services for a period exceeding three hours on 21st April 2010 by going to the hostel without permission during work hours.  The hotel management further alleged that the petitioner frequently reported to work late and that he had been warned on several occasions in writing.

 On 16th August 2010, the petitioner made an application to the Labour Tribunal in terms of Section 31b of the Industrial Disputes Act, pleading that the termination of his services was unjust and unreasonable. The hotel management alleged that in spite of the warnings given, the petitioner had continued to report to work late, in the months of February and March 2007 as well. The respondent further alleged that as a disciplinary measure, the petitioner had been sent on no pay leave from around mid May 2007 to mid June 2007.  The respondent asserted further that on 21st April 2010, the petitioner, whilst on duty, had been found sleeping in the restroom. Therefore, the petitioner had been suspended from service with effect from 22nd April 2010. 

Thereafter, charges had been framed against the petitioner and he had been requested to show cause within 7 days, as to why disciplinary action should not be taken against him. 

The petitioner, however, had failed to show cause during the 7-day period granted. After a lapse of about a month, the respondent had taken steps to inform the petitioner that his services were no longer required by a letter dated 10th June 2010.  Delivering its order, the Labour Tribunal ordered the reinstatement of the petitioner without a discontinuation of his services without back wages. The respondent appealed to the High Court, where the order of the Labour Tribunal was set aside. The High Court judge was of the opinion that, as the petitioner failed to show cause as to why he should not be dealt with and steps should not be taken against him. Accordingly, the High Court set aside the order of the Labour Tribunal and held that the respondent was justified in terminating the services of the petitioner. Subsequently, the petitioner filed an appeal challenging the High Court’s verdict.

The Supreme Court observed that the work of the petitioner was necessary for putting together, on time, the meals served for the guests staying at the hotel. This was a job where the work simply had to be completed by a given deadline if the residents of the hotel were to satisfactorily serve their meals in keeping with the standards of the respondent hotel as an Ayurvedic resort, catering predominantly to foreign tourists.

“Regarding the days on which the petitioner was absent without prior notice, it has to be stated that it would have led to disruption in the working of the kitchen as another person would have to be assigned the usual tasks of the petitioner at short notice.  This would have no doubt affected the ability to provide the meals on time, or in the least made the process of serving the meals on time challenging. The unreasonable conduct of one party in the employer-employee relationship should not burden the other party,” Justice Aluwihare said.

Accordingly, the Supreme Court decided to dismiss the appeal but held that the petitioner would be entitled to his statutory dues for the period of service with the hotel.