|Friday, 9 January 2004|
Critical analysis of major legal concept
The Concept of Misconduct in the Termination of Employment
Author : Dr. V. Irwin Jayasuriya Ph.D Attorney-at-Law and Notary Public Visiting Lecturer in Industrial Law, Faculty of Engineering, University of Peradeniya
Published by Stanford Lake Press, Pannipitiya
316 pages price Rs. 750
In his latest book on Industrial law, "The Concept of Misconduct in the Termination of Employment" Dr. Irwin Jayasuriya says that the need to address the concept of misconduct in the termination arose out of his own extensive practice at the Labour Tribunals in Sri Lanka. The concept of misconduct is all important in that it is almost always the reason for termination of employment of a workman.
The author has, in addition to drawing from his own wealth of experience, accessed both Indian and English case law and has analysed and discussed the views and concepts adopted by Indian and English Labour Courts and compared them with decisions of the Labour Tribunals and Appellate Courts of Sri Lanka. He shows the student and the reader the different approaches taken by the judges of these three jurisdictions.
In chapter one, the author introduces the student and the reader to the areas of misconduct, discipline and the principles of natural justice. In this excellent introduction, he traces the historical growth of society and the development of trade, commerce and tourism, and relates these societal structures to the growth of population and the need for disciplinary controls for the orderly functioning of society itself. The author discusses the different theories of punishment and states that the 21st Century showed that discipline in society could not be sustained merely on punitive basis. He very aptly states "... punishment or the fear of punishment could not checkmate indiscipline".
Dr. Jayasuriya discusses the legal maxim - "just and equitable' - in relation to Section 31 C (1) of the Industrial Disputes Act (IDA) and draws on the decisions of several Sri Lankan Appellate courts and the dicta of these judges are compared and discussed to show different meanings expressed by these judges.
The concept of 'misconduct' is discussed extensively in relation to the theory of 'natural justice' and the author compares the dicta of several well known judges of both the Indian and English Appellate Courts.
The author compares the definition of 'misconduct' of a well-known 1953 judgement of the Indian Supreme Court with English and other Indian judgements which have laid down the criteria constituting 'misconduct'.
In this book, Dr. Jayasuriya has analysed all the possible and conceivable areas of misconduct that are argued before the Labour Tribunals in Sri Lanka and compared them with Indian and English judgements.
For example, in dealing with the common Sri Lankan ailments such as absence and late attendance of employees at their workplaces, the author quotes from a work done by a former Deputy Commissioner of Labour where the latter states: "Sri Lankans have a penchant to celebrate festivals and ceremonies and even inducements such as attendance bonuses and re-imbursement of travelling expenses etc. have failed to change this habit". Most workers return to work after the last cent has been spent.
The author relates these areas of misconduct to the harm and economic damage that they cause to the industrial, manufacturing and hospitality sectors. He quotes the remark made by Justice Weeramantry that "Labour laws must be worked with justice both to the employee and employer and I do not consider realistic or satisfactory a view of a labour dispute which reduces the employer to a state of impotence in the face of repeated defaults of the same nature by the employee".
The author compares the Indian and English judicial positions with that of Sri Lanka in these areas of misconduct, and deals with other relevant areas of misconduct leading to termination such as inefficiency, incompetence and negligence at work. He compares the attitudes adopted by Indian and English courts in these areas of misconduct with those adopted by Sri Lankan Labour Tribunals and thereby contrasts the different attitudes and the systems.
In the succeeding chapters, Dr. Jayasuriya deals with dishonesty, theft, misappropriation, insubordination, disobedience, assault, insobriety, the theory of constructive termination, and a miscellany of reasons giving rise to termination of employment such as vacation of employment, the concept of implied resignation or 'resignation by conduct', frustration of contract, fixed term employment, wrongful conduct, the substitution of a legal representative upon the death of the employer and a variety of other causes that come before the Labour Tribunals almost every day.
In all these areas, the author compares the case law in Sri Lanka with the Indian and English case law to show the student and the reader as to how each judicial area deals with these aspects of misconduct leading to termination of employment.
In comparing the systems of industrial law prevailing in Sri Lanka, India and the UK, the author draws the attention of the student and the reader to the statutory provisions in the UK which provide for "unfair" and "fair" dismissals and states that the Indian and Sri Lankan legal systems follow the concept of "unfair labour practices" though in a limited area only. In Sri Lanka, the author states that Tribunals are deemed to be virtual courts of equity "where they are required to make just and equitable orders unfettered by the niceties of statutory provisions such as the Evidence Ordinance".
Besides, the Sri Lankan Tribunals can always inquire into and determine whether there has been mala fides in the termination of employment.
Another interesting area the author deals with is the Clause relating to the Notice of Termination of employment in a letter of appointment issued to an employee. The author discusses the requirement of this Clause in a letter of appointment in all three jurisdictions and draws on the Indian and English experiences to show how this clause operates and states that "the notice of termination is of great importance and should be treated as such by both the employer and the employee and by our Tribunals as well.
In this Work, Dr. Jayasuriya has accessed a total of 316 cases from the three jurisdictions including the Employment Appeals Tribunals and Industrial Relations Law Reports of the UK. Being an Industrial Court Arbitrator appointed by the President, the author has included a chapter on "Legal Provisions under the IDA for Dispute Resolution", thus providing an insight into the subject of dispute resolution in the context of the Sri Lankan Labour Law.
Above all, the author has included in this book the Industrial Disputes Act together with all amendments and the Industrial Disputes Regulations which is understood to be out of print. This book therefore serves a hand book of Industrial Law.
As Mr. Justice Mark Fernando, judge of the Supreme Court of Sri Lanka states in the foreword to this book, "This book will be of much assistance to all who are affected by Industrial law - judges, practitioners and law students as well as employers, employees and trade unions".
- R. S. Karunaratne
Writings by Sri Lankans about their impressions of life in the United States are not unusual. Ian Jayasinha, however, has produced something that is to the best of my knowledge unique.
The fifty-odd vignettes in this short book are in verse. They center on the southernmost point of the continental US, the exotic town of Key West, long time haunt of the famed Ernest Hemingway. Ian's love for Davie, his American "Conch" (native of Key West) wife shines through with a particular intensity.
His first piece, "Take my hand. I am a stranger in a foreign land," asks America to try to understand the new arrival from South Asia. The last in the volume, "Epilogue (The Final Journey)," calls on his Love to wait "Till thy fate shall overtake".
In between he offers imaginative and sensitive images of a shopping mall, the joys of the "ting-a-ling-ling" ice cream man, V-J Day, the Cuban influx into Florida, Key Lime Pie, and dozens of other flavours of Key West.
Brief as it is, this volume is an important link in the chain of mutual understanding between Sri Lankans and Americans.
James W. Spain, Former US Ambassador to Sri Lanka
Produced by Lake House