Shouldn’t a territorial limitation be introduced to labour tribunals?

Every original court (Court of First Instance), such as the Magistrate’s Court, District Court and High Court, has its territorial limitation with regard to jurisdiction. 

The territorial limits of every Magistrate’s Court, District Court and High Court have been defined and published by way of a gazette by the Minister of Justice under the Judicature Act. Time to time these territorial limits/areas have been adjusted/changed by gazette notifications, considering practical needs. Accordingly the Magistrate’s Court, District Court and a High Court has a set of defined Grama Niladhari Divisions that belongs to that Court.   

The Magistrate’s Court hears cases (crimes) that took place within the territorial limits of that Court. As decided by the Attorney General, under his powers, special cases and certain offences such as those under the Bribery Act may be heard in the Magistrate’s Court of Colombo disregarding the territorial limits. 

The District Court hears cases where the land situated, cause of action occurred or defendant resides within the territorial limits of that Court as provided mainly in section 9 of the Civil Procedure Code. Certain civil disputes, such as business transactions where the value is over certain millions or disputes under Companies Act and Intellectual Property Act and admiralty jurisdictions have designated special High Courts, overriding the territorial limits.  

High Courts hear cases where the alleged crime took place within the territorial limits of that Court. Indictment under the Bribery Act and special cases determine by the Hon. Attorney General or offences fallen to the jurisdiction of Permanent Trial-at-Bar may be heard in Colombo disregarding the territorial limits.  

In other words, each Magistrate’s Court, District Court and High Court has been established for specific areas consisting of named Grama Niladhari divisions. 

Labour tribunals are the main forum of dispute resolution with regard to unjust termination of service of employees by employers and issues related to gratuity and other benefits due from employer to the employees. Hence, a labour tribunal plays a pivotal role with regard to industrial harmony and labour rights in Sri Lanka. There are nearly 35 labour tribunals situated around the country. 

Notably, the labour tribunals do not have such a territorial limitation with regard to its jurisdiction, unlike courts of first instance. In situations of alleged unjust terminations, the Industrial Disputes Act only provides for filing cases/applications before the Labour Tribunal within six months from the alleged termination/dismissal, but does not define at which labour tribunal should that case/application need to be filed.

Section 31 B (1) of the Industrial Disputes Act No. 43 of 1950, as amended provides as follows;

“A workman or a trade union on behalf of a workman who is a member of that union, may make an application in writing to a labour tribunal for relief or redress in respect of any of the following matters:

a) the termination of his services by his employer;

Accordingly a sacked employee or an employee who alleged that he was unjustly terminated by his employer, can file a case before any labour tribunal around the country. 

Hence, even if the office/factory of the ex-employee situated in Colombo, he/she can file the case in Jaffna or Matara. We see in certain cases where the ex-employee filed cases in the nearest labour tribunal to his/her permanent residence although he employed at an office/factory situated hundreds km away from his residence. For example, an ex-employee who worked at a factory in Katunayake may file a case in Polonnaruwa where he/she may permanently reside. Due to this situation, employers have to face severe and unfair hardship in litigations due to the distance from the alleged place of termination to the labour tribunal in which the action has filed.

In some cases, on the applications made on behalf of employers (Respondent in the case), certain labour tribunals transfer cases to the nearest labour tribunal where the alleged termination took place. But in some cases it is not. As law stands today, one cannot demand, as of right, to transfer a case from one labour tribunal to another because every labour tribunal has island-wide jurisdiction. 

The two leading decided cases in this regard are as follows: 

In the case of Jafferjee v. Subramaniam (reported in 71 NLR 518) decided on 27 January 1969, the Supreme Court held the following.

“The Minister establishes the office of Labour Tribunal; that is the public office contemplated by section 31a (1). There are no designated posts, and the Minister merely determines the number of such posts. The Public Service Commission then appoints a person to that office. Each person so appointed has identical powers and island wide Jurisdiction.

For administrative convenience, the tribunals may be numbered. A fair distribution of work, or convenience in dealing with disputes in particular localities, may be considerations that are taken into account when tribunals are so numbered.”

Twenty-five years later, in the case of Kumarasinghe and Another v. State Development & Construction Corporation (reported in [1994] 3 Sri L.R. 205) decided on 22 October 1994, Supreme Court followed the earlier decision and observed that the Labour Tribunal jurisdiction is island-wide although cases may be transferred. 

“Under Article 170 of the 1978 Constitution, the Labour Tribunal President is defined as a ‘judicial officer”; and hence, the Judicial Service Commission now appoints persons to such office; the Commission also transfers such officers to Tribunals which are numbered, for the sake of convenience. Notwithstanding this change of the appointing authority, the decision in the Jefferfees case as regards the character and the jurisdiction of a labour tribunal would still apply.” 

In light of the above legal position one cannot demand, as of right, to transfer a labour tribunal case to the nearest labour tribunal where the alleged termination took place or where the respondent’s (employer’s) office is situated.   

Under the maintenance law, prior to 1999, action could be instituted at any Magistrate’s Court around the country by a party. By the introduction of Maintenance Act No. 37 of 1999, the law pertaining to the territorial limits of filling a maintenance action limited to the residence of either party. Accordingly, the law at present doesn’t permit to file a maintenance action at “any” Magistrate’s Court but only at an area where a party resides.

A similar change is desirable to the labour law in Sri Lanka by defining the territorial limits within which an ex-employee could file his application for alleged unfair dismissal. Most fair move would be to limit filing of application for alleged unfair dismissal only at the nearest labour tribunal to where the alleged dismissal took place or the last work place. That will not only enable a fair play situation between the parties before labour tribunals but will prevent abuse of process.   

(The writer is an Attorney-at-Law.)