Brookbond Ltd. V.

Tea, Rubber, Coconut And Generalproduce Workers Union 1/1/13

6 [IN THE COURT OF APPEAL OF SRI LANKA] 1973 Present: Fernando, P., Sirimane, J., Samerawickrame, J., Siva Supramaniam, J., and Tennekoon, J. BROOK BOND (CEYLON) LTD., Appellant, and TEA, RUBBER, COCONUT AND GENERAL PRODUCE WORKERS' UNION, Respondent Appeal No. 9 of 1973 S. C. 39/70-L. T. Case No. 1/30644 Labour Tribunal-Termination of a work man's services-Application for relief-Disputed questions of fact-Duty of the Tribunal to set down its findings thereon and to give reasons for its order- Discretion of the Tribunal to mak e a just and equitable order- It must not be exercised arbitrarily-Reinstatement of a work man-Relevancy of past record of service-Refusal of Tribunal to consider material facts-Error of law-Industrial Disputes Act (Cap, 131), ss. 31B, 31C. Application for relief in respect of the termination of a workman's services was made under section 31B of the Industrial Disputes Act. The only issue at the inquiry was whether the services of the workman were terminated by the employer (the appellant) because the workman had assaulted a fellow worker despite the final warning he had received in consequence of "previous unsatisfactory record of attendance, conduct and work". The President of the 7 Labour Tribunal ordered reinstatement of the workman but did not set out in his order his finding on the principal issue of fact or his reasons for ordering reinstatement. It was contended by the union-respondent that it could be inferred from the order that the President's finding was that the alleged .assault had not been established and that the order for reinstatement was based on such finding. Held, that in the absence of a finding on the disputed question of fact, there was no basis for the Tribunal to make a just and equitable order. The rules of procedure framed under section 31C (2) of the Industrial Disputes Act provide for the filing of pleadings and for the examination and cross-examination of the witnesses by the parties. The parties are entitled to know what evidence the Tribunal accepted or rejected and the reasons for the order ultimately made. Where an appeal lies from the order of a tribunal to a higher Court, though the appeal may be only on a question of law, it is the duty of the tribunal to set down its findings on all disputed questions of fact and to give reasons for its order. Questions of law must necessarily be considered in relation to the facts find! it would be impossible for a Court of Appeal to discharge its functions properly unless it has before it the findings of the original tribunal on the facts as well as its reasons for the order it has made. On the question of reinstatement of a workman, the past record of service of the workman is of the greatest importance and relevancy. The President in the present case had clearly misdirected himself in regard to it. The refusal of the Tribunal to consider material facts constituted error of law.

APPEAL from a judgment of the Supreme Court.

H. W. Jayewardene, with D. C. Amerasinghe, J. C. Ratwatte, and J. B. L- de Silva, for the appellant. K. Kanag-Iswaran, with S. Mahenthiran, for the respondents. Cur. adv. vult. December 31, 1973. SIVA SUPRAMANIAM, J.www.lawnet.lk/docs/case_law/nlr/common/html/NLR77V6.htm 1/4

Brookbond Ltd. V. Tea, Rubber, Coconut And Generalproduce Workers Union 1/1/13

This is an appeal, with the leave of this Court, against the judgment of the Supreme Court affirming a decision of the Labour Tribunal in an application for relief under Section 31B of the Industrial Disputes Act by a trade union on behalf of a workman named Wimalasena whose services had been terminated by his employer, the appellant. The appellant is a limited liability company. On a complaint made by a fellow workman named Hemachandra who was attached to the workers' canteen at one of the work places of the appellant that he had been assaulted 8 by Wimalasena inside the canteen premises during working hours, the appellant held a domestic enquiry. Wimalasena denied the allegation but, at the conclusion of the inquiry, he was found guilty of the charge. Having regard to his previous bad record of service, the appellant terminated his services. The respondent trade union of which Wimalasena was a member then made the present application for relief on his behalf to the Labour Tribunal. The duty of the Tribunal under Section 31C of the Act was to ascertain the facts and thereafter make a just and equitable order. The facts in this case fell within a very narrow compass and the principal issue which had to be decided was whether the allegation of assault had been established or not. Yet the enquiry which commenced about one and a half years after the date of the application was concluded, after many postponements, nine months later. The President took a further ten months to make his order which he delivered on 15th February, 1970. He held that the termination of the workman's services was not justified and directed his reinstatement but without back wages. He further directed that the period of non-employment should not be reckoned to be a break in service. Although his order covers over eleven type written pages one searches in vain for his findings on the principal issue of fact that was in dispute between the parties or for his reasons for ordering the reinstatement of the workman. Learned counsel for the respondent union argued before us that it could be inferred from the order that the President's finding was that the alleged assault had not been established and that the order for reinstatement was based on such a finding. Wimalasena stated in evidence that he had only abused Hemachandra but had not struck him. Hemachandra testified that he had been struck on his left cheek and that within a few minutes of the assault he had made a complaint about it to the factory manager. The factory manager corroborated his evidence in regard to the complaint and stated that he found a slight swelling on Hemachandra's left cheek where he was said to have been struck. Not a single question was put to this witness in cross-examination impugning his truthfulness or his bona fides. This item of evidence, though of great importance, appears to have been completely overlooked by the President, as there is no reference to it in his resume of this witness's evidence contained in the order. On the totality of the evidence that had been placed before the Tribunal, it would have been a wholly unreasonable finding that the assault had not been established. It is perhaps, for that reason that the Supreme Court in its judgment stated: 9 But it is clear that the President made his order on the his that there was an assault but the circumstances diminished the culpability of the workman Wimalasena. That that conclusion is far from clear from the terms of the Presidents order is demonstrated by the fact that according to the contention of learned counsel for the respondent the clear inference is that the President found Wimalasena not guilty of the assault. In the absence of a finding on the disputed question of fact, there was no basis in this case for the Tribunal to make a just and equitable order. The rules of procedure framed under Section 31C (2) of the Act provide for the filing of pleadings and for the examination and cross-examination of the witnesses by the parties. The parties are entitled to know what evidence the Tribunal accepted or rejected and the reasons for the order ultimately made. As stated by Weeramantry, J. in Ceylon Transport Board v. Gunasinghe [(1968) 72 N.L.R. 76 at 83.] Proper findings of fact are a necessary basis for the exercise by Labour Tribunals of that wide jurisdiction given to them by statute of making such orders as they consider to be just and equitable. Where there is no such proper finding of fact the order that ensues would not be one which is just and equitable upon the evidence placed before the Tribunal, for justice and equity cannot be administered on a particular case apart from its own particular facts. Where an appeal lies from the order of a tribunal to a higher Court, though the appeal may be only on a question of law, it is the duty of the tribunal to set down its findings on all disputed questions of fact and to give reasons for its order. Questions of law must necessarily be considered in relation to the facts and it would be impossible for a Court of Appeal to discharge its functions properly unless it has before it the findings of the original tribunal on the
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Brookbond Ltd. V. Tea, Rubber, Coconut And Generalproduce Workers Union 1/1/13

facts as well as its reasons for the order it has made. In the words of Lord Normand in Inland Revenue v. Fraser [(1942) Tax Cases 498 at 501.] In cases where it is competent for a tribunal to make findings of fact which are excluded from review, the appeal Court has always jurisdiction to intervene if it appears that the tribunal has made a finding for which there is no evidence or which is inconsistent with the evidence or contradictory of it. That jurisdiction, where an appeal does lie, cannot be rendered nugatory by a failure to record necessary findings of fact. In the instant case, the major portion of the Presidents order consists of a resume of the evidence of the witnesses. After summarising the evidence, he has proceeded to determine the 10 question whether the appellant was " justified in terminating the services of the applicant (sic) for the reason that he assaulted a fellow worker during working hours at the canteen." For its justification of the termination of Wimalasena's services, the appellant relied not only on the fact that the workman was guilty of assault but also on his "previous unsatisfactory record of attendance, conduct and work. " During the period December 1961 to May 1965 Wimalasena had been warned on eight occasions in respect of various acts of misconduct such as habitual late attendance, unauthorised absence, neglect of duty and failure to comply with the company's standing orders. In July 1965 he was called upon to answer the following charges : " 1. That on Friday 28th May 1965, at or about 1.50 p.m. during working hours, while you were detected partaking in a meal in the Box Stores, and when questioned by Mr. S. Alagu, Factory Supervisor, as to your conduct on this occasion you abused him in obscene language. 2. On the same date and at or about the same time as stated in charge 1 above you did threaten Mr. S. Alagu, Factory Supervisor, with bodily harm." At a domestic enquiry he was found guilty of both charges and was suspended from work without pay for one week. At the same time, the appellant drew his attention to his previous bad record and the warnings he had received on eight occasions and informed him as follows : " In view of your very unsatisfactory record of attendance, conduct and work, you are hereby further warned that if on any future date your conduct, attendance or work be. found wanting the same will not be considered without dismissal-Please treat this as a final warning. " According to the appellant, it was in view of Wimalasena's conduct in assaulting a fellow worker despite the final warning that he had received that his services were terminated. The President, in his order, brushed aside the evidence regarding the workman's previous bad conduct with the following observation:-"Most of the warnings have been given in respect of matters not involving assault or abuse, except on one occasion." The President misdirected himself in taking the view that only warnings given in respect of conduct involving assault or abuse that should be taken into consideration by him in determining the question whether the termination of services was justified, 11 and, even then, there should have been previous warnings on more than one occasion. The refusal in this way to consider material facts in deciding the matter before him involved, in our opinion, error of law. Learned counsel for the respondent submitted that the President had an " unfettered discretion " under Section 31C (1) of the Act to make an order which he considered just and equitable and the order for reinstatement having been so made, a Court of Appeal should not interfere with it. The expression "unfettered discretion" was used by Lord Dilhorne in the majority judgment of the Privy Council in United Engineering Workers' Union v. Devanayagam [1 (1967) 69 N. L. R. 289 at 296.] when he said : " They (i.e., the arbitrator, the Labour Tribunal or the Industrial Court) are given an unfettered discretion to do what they think is right and fair." The use of the phrase " unfettered discretion " has unfortunately given rise to much misunderstanding and Labour Tribunals have sometimes acted as if the phrase meant an arbitrary exercise of discretion. As pointed out by Weeramantry, J. in Ceylon Transport Board v. Gunasinghe (Supra), " the decision in United Engineering Worker's Union v. Devanayagam does not free Labour Tribunals from the duty of acting judicially." Further, considerations of justice and equity must necessarily act as fetters on the exercise of that discretion.
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Brookbond Ltd. V. Tea, Rubber, Coconut And Generalproduce Workers Union 1/1/13

In the instant case, not only did the Labour Tribunal fail to arrive at a finding on the facts and thus deprive itself of the basis on which it could exercise its discretion, but, while purporting to exercise its discretion in regard to the question whether* the workman should be reinstated, it misdirected itself and gave no weight at all to the past record of the workman on which the appellant relied to justify the termination. For these reasons the decision of the Tribunal in this case is one which called for interference. The Supreme Court, however, attached no importance to the President's failure to give a decision on the disputed question of fact but interpreted the order as one made on the basis that there was an assault but that the circumstances diminished the culpability of the workman. This interpretation would appear, in reality, to be the Supreme Court's own finding on the disputed question of fact on the evidence placed before the Tribunal. To find on the facts is in excess of the jurisdiction of the Supreme Court. In dismissing the appeal, the learned Judge stated: " I do not find in this case any compelling reason by way of a 12 misdirection or a failure to consider any relevant issue in the order to vary the President's order. " In reaching that conclusion, the learned Judge appears to have overlooked the fact that on the question of reinstatement of a workman the past record of service of the workman is of the greatest importance and relevancy and that the President in his order had clearly misdirected himself in regard to it. For the reasons set out above, we are of the opinion that the judgment of the Supreme Court as well as the decision of the Labour Tribunal should be set aside and we so order. Having regard to all the circumstances of this case we do not consider it satisfactory to send this case back for an adjudication on the disputed question of fact by the President who heard this case and for a fresh order by him with due regard to the previous record of the workman or for a fresh hearing before another President. Acting under the powers vested in us under Section 8 (2) of the Court of Appeal Act, No. 44 of 1971 we make order that the application of the respondent before the Labour Tribunal be dismissed. There will be no order in regard to costs. Appeal allowed.

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