SC overrules Labour Tribunal order and HC ruling

By Shamindra Ferdinando

The Supreme Court recently concluded a long-drawn out sexual harassment case in SriLankan Airlines.

A three-judge bench, comprising P. Padman Surasena, Janak de Silva and Mahinda Samyawardhena overturned an order given by Labour Tribunal (LT) on 22 Oct., 2013, and a ruling by the Negombo High Court on 19 Oct., 2016, upholding the dismissal of the employee-Ground/cum flight steward for sexually harassing an air hostess.

The Court accepted that at the time of the incident on 17 March, 2005, on UL 505 Colombo-London flight, the respondent had been intoxicated though company policy was crew couldn’t consume alcohol within 10 hours of a scheduled flight.

The SC found that the President of the LT had erred. So had the High Court in affirming the order of the LT.

Manoli Jinadasa appeared for the air hostess whereas T. I. Sapukotanage represented the flight steward.

The Court was told that the airline had terminated the services of the accused on 07 Sept., 2005, following a disciplinary inquiry. The worker has been dealt with under four separate allegations which were also explained to the LT, Negombo HC and the Supreme Court.

The dismissed employee later moved LT seeking his reinstatement and back wages. Consequent to the action at LT initiated on Nov 28, 2005, LT held that the termination of services of the flight steward was not just and equitable. The LT ordered reinstatement of the worker without back wages subject to one year of probation on the basis that being without work for a period of eight years, is sufficient punishment as there had been other employees who had received lesser punishment for similar misconduct.

Justice Janak de Silva stated that sexual harassment is a criminal offence and such conduct amounts to a serious misconduct at the workplace. Justice de Silva emphasized that sexual harassment could take place against both men and women.

During the proceedings, the Court was told of numerous other sexual harassment cases though disciplinary action hadn’t been taken in the absence of written complaints. One such case was a flying stewardess who hadn’t been assigned for duties for a period of six months and restricted for short flights for a year after she refused to succumb to a member of the airline crew.

The SC has given ruling on Feb 2 against the backdrop of a high profile awareness campaign on sexual harassment in work places and proposed labour law reforms expected to contain a new chapter on the issue at hand and are expected to be implemented this year. In addition, a special sexual harassment Act is being drafted separately under the general law as well. Legal sources pointed out that there would be two Acts, the Employment Act which will contain provisions on sexual harassment at workplaces and another Act under the general law.