legal aid commission

Termination of employment

In Sri Lanka, the law applicable to employer and employee relationship is governed by many labour legislations. Although the Labour Tribunals were created by the Industrial Disputes Act(Amendment) Act No.62 of 1957, the major legislation which governs the disputes between the employer and the employee is the Industrial Disputes Act No. 43 of 1950.

Prior to the setting up of Labour Tribunals, a workman whose service was terminated by the employer had to resort to common law remedy of an action in a District Court for breach of contract and thereby claim only compensation.

According to Section 31B(1) of the Industrial Dispute Act No.43 of 1950, a workman or a Trade Union on behalf of the workman can make an application to the Labour Tribunal for matters such as Termination of employment, non-payment of gratuity and any other such relevant matters.

The jurisdiction of the Labour Tribunal is wide, relief under the Industrial Dispute Act is not limited in granting benefits which are legally due. The duty of a tribunal is to make an order which may appear to it to be just and equitable.

Further, the proceedings of a Labour Tribunal are quick, informal and inexpensive. Apart from the Industrial Disputes Act No.43 of 1950, the Termination of Employment of Workmen (Special Provisions) Act No.45 of 1971 applies to the termination of employment of workmen for any reason other than for punishment imposed by way of disciplinary action.

Under this Act, any employer employing 15 or more workmen in a scheduled employment cannot terminate the services of a workman who has one year or more service either without the prior written consent of the workman or the prior written approval of the Commissioner of Labour.

As per the Shop and Office Employees Act No. 19 of 1954, the employment of any female employee shall not be terminated by reason only of her pregnancy or confinement or any illness consequent on her pregnancy or confinement.

The termination of employment would generally take place due to vacation of post by the employee, by disciplinary action taken by the employer and bringing an end of the employment during or end of the probationary period.

Vacation of post is a situation where the employee fails to report to work without obtaining leave and/or prior approval or in some instances abstains from work for a longer period of time. In this type of situation, the burden is on the applicant to prove that he or she did have the intention to return for work and he/she refrained due to unavoidable circumstances.

If the employee is found guilty of any fraudulent act, causing loss or damages to the property or misappropriation of property, the employer can terminate the services of a workman. It is the accepted practice to issue a charge sheet and to have a domestic inquiry in order to justify the termination to prove the bona fides on the part of the workman.

In a contract of employment, certain period of probation is included in order to give an opportunity to the employer to decide the capability and suitability of the employee on a particular job.

It is the accepted principle of law that such decision lies with the employer and the Tribunal would not interfere with such decision unless it can be proved that the employer has acted in malicious and unjustifiable manner. In such a situation, the employee has to establish that the employer has acted mala fide in terminating his/her services.

In constructive termination of employment the employer treats the employee in such a way so as to make the employee to leave the place of work. The examples of such constructive termination of employment are fundamental change of duties, demotion without valid reason, unreasonable transfer, vacation of post for not complying with wrongful transfer, alleged basis of misconduct, involuntary resignation and not allocating any work etc.

Section 33(1)(a) of the Industrial Disputes Act speaks about the wages and all other conditions of service including back wages. The order for back wages in the Labour Tribunal is made in the instance of wrongful termination of service.

Reinstatement of service is not favourable specially when the employer lost his confidence in the employee. Therefore, the Tribunal has the discretion to decide whether payment of compensation be awarded as an alternative to reinstatement.

It is observed in plantation sector that the workmen would prefer for re-instatement rather than compensation or back wages.

A number of reasons have contributed for this tendency such as that the movement of these workmen is confined to within the areas of plantation, they are trained only for plucking of tea leaves, rubber tapping etc. and they would like to be in the houses of estate even after their retirement as well. Although Section 33(1)(d) of the Industrial Disputes Act provides the payment of compensation by any employer to any workman in lieu of re-instatement, it does not lay down the basis on which it has to be computed. In this regard, it is important to note that this is so much a matter for the exercise of the Tribunal’s discretion.

The Tribunal has to take into consideration the nature of the employer’s business and his capacity to pay, the employee’s age, the nature of his employment, length of service, seniority, his past conduct, the circumstances and manner of dismissal etc. A Labour Tribunal is thus entitled to grant compensation for loss of career if it thinks such relief is just and equitable.

The Industrial Disputes Act No.43 of 1950, the Termination of Employment of Workers( Special Provisions) Act No. 45 of 1971 and the Shop and Office Employee’s Act No.19 of 1954 provide safeguards against unjust termination and also safeguards the employment from the concept of ‘hire and fire’.

The Labour Tribunal has the power and authority in making orders for re-instatement or granting compensation in the course of making just and equitable orders thus ensuring the security of employment.

R.Navodayam, Attorney-at-Law

[Questions and Answers]

How important is a survey plan?

Question: What is the importance of having a survey plan in a partition action. Please advice.

- Niranga,
Polonnaruwa

Answer: In land and partition actions, plans and reports of surveyors do a very significant role in proving and disproving fact in issues. In a partition case, it is imperative to have a preliminary plan and report prepared before the hearing.

The basic need of a preliminary survey is to identify the corpus of the action. But when a party seeks to survey a larger land or exclusion of land or dispute the identity of the corpus it is very important to obtain commissions on surveyors to identify and superimpose such land before proceeding to the trial, as a court would be always be hesitant to issue a commissions once the trial is commenced, although it has power to do so even at the conclusion of the trial. It has been a common ground observed in partition and land actions by Appellate Courts, that practitioners without due regard to the importance of such surveys, without such evidence being produced attempts have been unsuccessfully made to secure orders or judgments in their favour. In partition law, Sections 16 to 19 deal with such surveys while the following Sections 428 and 669 of the Civil Procedure Code with very wide discretion empowers the court to issue commissions to carry out the following activities:

“428. In any action or proceeding in which the court deems a local investigation to be requisite or proper for the elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount of any means profits or damages annual net profits, and the same cannot be conveniently conducted by the judge in person, the court may issue a commission to such person as it thinks fit, directing him to make such investigation and to report to the court”.

“669. The court may, on the application of any party to an action, and on such terms as it thinks fit.

*make an order for the detention, preservation, or inspection and survey of any property being the subject of such action;

*for all or any of the purposes aforesaid authorize any person to enter upon or into any land or building in the possession of any other party to such action; and

*for all or any of the purposes aforesaid authorize any samples to be taken or any observation to be made,or experiment to be tried, which may seem necessary or expedient for the purpose of obtaining full information or evidence.

Land Acquisition Act

Question: I am a Retired Principal living in the Southern Province. I received a notice under Section 2 (1) of the Land Acquisition Act that a portion of my land is to be acquired for a public purpose. I learnt that the minister has issued an Order to take immediate possession. I fear that this is motivated by political animosity. Is there any action I can take?

- Sent by email

Answer: Under the Land Acquisition Act it is possible to acquire a private land for the purposes specified therein following the prescribed procedure. The proviso to Section 38 empowers the minister to take immediate possession if there is any urgency. It is required to mention the public purpose for which the land is sought to be acquired. If no public purpose is mentioned, then it is possible to challenge by way of a writ application. However, if the public purpose is disclosed and as the Section 38 has been made, it is not possible to challenge this decision.

In any event if you are not properly paid compensation after due inquiry, or if the officials are delaying the payment, you can file an action in the Provincial High Court for a writ o mandamus to get the compensation.

Copy of Birth Certificate

Question: My grand son was born in Italy and his birth was registered in that country. However his parents got the Sri Lankan birth registration to him through the Embassy in Italy. Now my grand son is 18 years old and his Birth Certificate is damaged. I wish to know whether my grand son could apply for a copy of his Birth Certificate. Your reply is greatly appreciated.

- Godage,
Kataragama

Answer: Yes, your grand son can obtain a copy of his Birth Certificate. He should go to the Central Record Room, Maligawatte, Colombo 10. They will issue an application form to him where he has to complete it and hand it over to them. On receipt of the completed application form, the Central Record Room will issue a copy of the Birth Certificate immediately. If you need further details, you can call the Central Record Room on Telephone No.011 2329773

Authorised deductions and the limits

Question: I am employed as an Accounts Clerk in a Mercantile Firm in Colombo. My Employer is making deductions from my salary as he pleases. I would like to know whether there is any authorized deduction and if so the limit to deduction?

- M. Shaneez,
Dehiwela

Answer: You are covered by the Shop and Office Employees Act. The deductions which could be made from the salary are termed Authorized Deductions. No deduction can be made without the consent of the employee.

The list of authorized deductions is given in the Act e.g. advance of salary, price of any food or article of food supplied, contribution to pension fund, provident fund, insurance scheme, savings scheme, recovery of rent, subscription to Trade Union and others.

The permissible maximum deduction from salary is 60 percent of the total salary. There are deductions which can be made without the consent of the employee. They are – Income Tax, Order of Court.

Failing case to amend Birth Certificate

Question: I use my name as Naduni Perera in the Marriage Certificate, in my children’s Birth Certificates and in my letters of employment during the last 10 years. However, in my Birth Certificate my name appears as Nandani Perera. I want to change my name in my Birth Certificate . Is it necessary to file a case or is there anyway to resolve this matter without going to courts?

- Naduni Perera,
Battaramulla

Answer: Yes, you can amend your Birth Certificate. You have to obtain the B9 Application Form from the Divisional Secretary’s Office. The duly filled application form along with an affidavit and the documents (at least three documents) to prove that you are using the name ‘Naduni Perera’ together with your Birth Certificate and hand over these documents to the Registrar of Birth and Deaths, Divisional Secretary’s Office where you were born. The Registrar will thereafter amend ‘Cage 13’ appearing in the Birth Certificate.

Land matter

Question: I have a business property donated by my elder sister on a Deed of Gift. Some seven years back a distant relation of mine was allowed to run his own business in the said property without entering into any agreement whatsoever. Now I am in a better position to start my own business there, but my relation doesn’t want to part with his business. Instead he insists upon entering into an agreement for a period of ten years. My intention is to get back free possession of the property as early as possible. I kindly request your good self’s advice as to the sections to be followed in achieving my target.

- Kumaratunga,
Horana

Answer: As you are the owner of the property and only you permitted your relation as a licencee to start a business in your property, you can request him to leave the premises. If he does not comply, you can send a notice to quit and if he still does not comply, you can proceed to file legal action in court. If you need further assistance in the matter, please do not hesitate to visit our Legal Aid Centre in your area

Registration of Birth

Question: My sister is dead 10 years. Her daughter is with me. She is 10 years old. She doesnt have a Birth certificate. She is going to school without a birth crtificate. I try to obtain a birth certificate. But no one helped me. Principal of the school advised me to submit the birth certificate. I want to know whether is it mandatory to register a birth.

- Chamara,
Panadura

Answer: Under the International Covenant on Civil and Political Rights (ICCPR) Act, No. 56 of 2007, a child has a legal right to register his birth. Section 5 of the Act is relavent in this regard.Under section 6 and 7 of the Act you also have a legal right to access the public services to register your child's birth. If they failed to do so you can file an action against the public officers under this Act. Further you can seek the help of the Legal Aid Commission in your area to register your Child's ‘s birth .For your reference the ICCPR Act No56 of 2007 Section 5 and Section 6 and 7 states as follows;

5. (1) Every child has the right to- (a) have his or her birth registered and to have a name from his or her date of birth;

(b) acquire nationality;
(c) be protected from maltreatment, neglect, abuse or degradation; and
(d) have legal assistance provided by the State at State’s expense in criminal proceedings affecting the child, if substantial injustice would otherwise result.

Rights of a child.

(2) In all matters concerning children, whether undertaken by public or private social welfare institutions, courts, administrative authorities or legislative bodies, the best interest of the child shall be of paramount importance.

Access to public services

6. (1) Every citizen shall have the right and the opportunity to-

(a) take part in the conduct of public affairs, either directly or through any representative; and (b) have access to services provided to the public by the State.

(2) For the purpose of this section, the expression ‘conduct of public affairs’ shall not include the conduct of any affairs which are entrusted exclusively to any particular authority, by or under any written law.

7. (1) A person shall be entitled to apply by way of petition addressed to the High Court, against the infringement or imminent infringement by executive or administrative action, of any human right to which such person is entitled to under Sections 2, 4, 5 and 6 of this Act and plead for such relief or redress as shall be prayed for in such petition.

Documents for change of possession of motor vehicle

Question: Could you please let me know through Daily News Legal Aid page as to what documents should be produced for the change of possession of a motor vehicle?

- Sent by email

Answer: The documents to be produced are:-

1. Notice of the change of possession, M.T.A.6 (Form A) and the application M.T.A.8 (Form C).

2. Two photographs of the transferee 3.5x2.5c.m. one of the photographs should be certified by the Grama Niladhari of the area concerned/Justice of Peace/An Executive Officer and photocopy of NIC of Transferor and Transferee.

3. Revenue License of the year of transfer and a photocopy of same if a notice of non-user has been given, a Certificate issued by the Licensing Authority.

4. A Certificate issued by this Department to the effect that Sri Tax has been paid, (only for the first transfer in respect of 1 Sri to 15 Sri Cars and 31 Sri, 32 Sri Vehicles)

5. Certificate of the Registration of Vehicle.

6. If a Mortgage/Absolute Ownership/Lease has been registered a letter from the relevant institute for its cancellation.

7. (i) If the Registered Owner or the New Owner is a Limited Company, signature on M.T.A. forms to be placed with the Embossed Seal. If the Embossed Seal is not available, a letter issued by that Company to prove it, in a letter head.

(ii) Certificate of Business Registration. (with a photocopy).

8. If the vehicle belongs to a Partnership Company, a letter of consent from the other partners and the Certificate of Business Registration (with a photocopy).

9. If conditions are given in the Certificate of Registration, a consent letter from the relevant institute to cancel them.

10. On occasions when imports have been made free of customs duty, a receipt to the effect that customs duty is paid - a letter from the relevant institutions to prove that there is no objection for the transfer of the vehicle.

11. A Special Transfer (Sales) Tax of Rs.3,000 has to be paid in the first transfer of a motor vehicle, which has not been lapsed for a period of seven years from its first registration.

12. For Diesel Motor Vehicles (Motor Cars and Dual Purpose Vehicles), Diesel Tax/Luxury Tax receipts with photocopies.

You can obtain the Transfer Certificate from the Registrar of Motor Vehicles through their ‘One Day Service’ or the normal service (within 21 days).

Filing separate action for ejectment

Question: I got a judgment in my favour in an ejectment case two months ago.

The tenant named in the said action appealed against the said judgment and the appeal is now pending before the High Court of Civil Appeal.

I want to eject the tenant from my premises. However, I understand that I have to file a separate action before the original court. Please advice.

- M.Samaranayaka,
Avissawella

Answer: It is advisable to meet a lawyer and get his advice to file a writ of execution pending appeal.

If you need further advice, you can visit our Legal Aid Centre in Avissawella which is situated in the Court Complex, Avisswella (Tel. No.060-2362219) and meet our Legal Officer who will be able to assist you in the matter.

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[Protection order under Domestic Violence Act]

Question: If a protection order has been obtained under the Domestic Violence Act No.34 of 2005, what are the prohibitions laid down under the said Act.

- Andrew David,
Wennappuwa

Answer: Under the Sections 10, 11 and 12 of the Domestic Violence Act No.34 of 2005 :- a protection Order- Shall, prohibit the respondent from committing or causing the commission of, any act of domestic violence; A protection Order shall remain in force for a period not exceeding 12 months as specified therein.

The Court may, by means of an Interim Order or Protection Order prohibit the respondent from:- entering a residence or any specified part thereof, shared by the aggrieved person and the respondent; entering the aggrieved person’s - residence; place of employment; school; entering any shelter in which the aggrieved person may be temporarily accommodated; Preventing the aggrieved person who ordinarily lives or has lived in a shared residence from entering or remaining in the shared residence or a specified part of the shared residence; Occupying the shared residence; Having contact with any child of the aggrieved person or having contact with such child other than on the satisfaction of such conditions as It may consider appropriate, where the Court is satisfied that it is in the best interest of such child; Preventing the aggrieved person from using or having access to shared resources; Contacting or attempting to establish contact with the aggrieved person in any manner whatsoever; Contacting or attempting to establish contact with the aggrieved person in any manner whatsoever; Committing acts of violence against any other person, whether it be a relative, friend, social worker or medical officer, who may be assisting the aggrieved person; Following the aggrieved person around as to cause a nuisance; Engaging in such other conduct as in the opinion of the Court will be detrimental to the safety, health or well being of the aggrieved person or other person who may require protection from the respondent as the Court may specify in the Protection Order;

Selling, transferring, alienating or encumbering the matrimonial home so as to place the aggrieved person in a destitute position.

In imposing any prohibition referred to in subsection (1) of the Court shall have regard to - the need for the accommodation of the aggrieved person or the children (if any) of the aggrieved person and the children (if any) of the respondent; any hardship that may be caused to the respondent or to any other person as a result of the making of the Order.

Where a Protection order has been made and where the Court is satisfied that it is reasonably necessary to protect and provide for the immediate safety, health or welfare of the aggrieved person.

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