Employment in the ‘New Normal
By Sharon Arnolda
Among the many challenges brought on the world by the recent pandemic, one of the most pressing issues to date remains the drastic changes introduced to the way we define ‘being employed’. By having to stay away from conventional workspaces the last year created a ‘new normal’ that made it blatantly clear that it is not vital for most of us to be physically present at our work places to get the job done. The pandemic also brought with it a negative impact on the global economy, with some industries completely shutting down due to the severe travel restrictions imposed and others due to financial crisis. Both employees and employers faced a type of situation unforeseen by the law, more a matter of negotiation and compromise on both parties to see how best things could be taken forward.
The inaugural episode of the webseries The Law Review 2021, hosted on 19 January 2021 by The American Chamber of Commerce in Sri Lanka looked into the emerging issues of Labour Law in the country. The webseries was panelled by past President of the Bar Association of Sri Lanka for the years 2015/2016 and 2016/2017, President’s Counsel Geoffrey Alagaratnam, currently a leading practitioner in Public Law, Constitutional Law, Insurance Law, Commercial Law, and Employment Law in the original courts as well as superior courts of Sri Lanka, President’s Counsel, Uditha Egalahewa, and Senior Lecturer – Faculty of Law, University of Colombo and currently the Director of Labour Law Studies for Master of Laws Programme, Faculty of Law, University of Colombo, Attorney-at-Law, A. Sarveswaran.
A fundamental in understanding of how labour legislation applies in the country is to be aware of the types of employment contracts that are widely used and the rights conferred under the same. In answering a question on how the current legal framework deals with the issue of non-disciplinary termination, Egalahewa elaborated on the following points: According to the courts in Brown V Commissioner of Labour, a probationary cannot apply under the main legislation available for termination in this country, the Termination of Employment of Workmen (Special Provisions) Act, No.45 of 1971 or TEWA. In addition to which, casual employees have no right for permanent employment. Which essentially means that the final decision with regard to their employment lies solely in the hands of their employers. Such groups of employees have little to no protection from the law. Permanent employees however, have the option of either making an application to the Labour Tribunal, which bases itself on just and equitable principles in awarding compensation and remedies as opposed to a set formula; or to the Commissioner of Labour under the said Act, the latter of which is more effective, Egalahewa further stated. Sarveswaran stated that the legislation should make changes to include all types of employment and further shared that currently, the law does not provide for any ‘Reductions’ but for ‘Deductions’ under Section 19 of the Shops and Offices Act and Section 02 of the Wages Board Ordinance. In answering a question in relation to the law pertaining to the unilateral decisions made by employers to make use of the statutory leaves, Alagaratnum stated that, while there is no specific provision that deals with it, “There is a long period where both parties are affected.
The question is as to where the compromise is.” He further stated that such matters are better handled in the absence of legislation, and there should be a Commissioner of Labour who can consolidate between the two parties. According to Algaratnam, the situation calls for, “Cooperation between employee and employer and neither party should be permitted to exploit the situation to the disadvantage of the other, but there should be accommodation.” In answering a question regarding compensation for non-disciplinary termination Egalahewa stated that under TEWA, there is a formula which was gazetted close to 15 years ago. No revision has been made besides the recent Cabinet decision to increase the cap given in the formula, he added. In addition to which an application can be made to the Labour Tribunal where a decision will be made based on the careful consideration of the facts of the matter.
Working from home and the law
One of the best things when it comes to the ‘new normal’ is the ability to work from home. Even though this was a concept that was being widely embraced before the pandemic forced us into it, not many employers were open to the idea back then. However, the efficiency brought about by the ability to better manage your time while also being able to work for multiple employers simultaneously has given rise to many forms of employment that does not fall within the gambit of our legal system. The question regarding the above was presented to Alagaratnam. He stated that in addition to the law not covering new concepts, the legislation needs to be reformed on various accounts.
Among the reforms suggested by him are;
= The concept of time splitting, in which a person is able to work for two employers at the same time
= The issue of monitoring the working hours of those working from home which gives rise to keeping track of details such as overtime payments and so on.
= The employment of young persons: students abroad have the ability of working for a couple of hours during their studies, which encourages independence from a young age.
= In a workforce that is working towards gender equality the rules restricting the working conditions of the female workforce should be reconsidered. For example, in the light of institutions such as call centres in which there is a considerable female workforce such rules as limiting working hours seem archaic. In addition to which he also pointed out that practical issues such as EPF and ETF benefits and working conditions for such categories of employment which are at the moment, “Purely based on the agreement/ contract between the parties,” should be regulated under the scope of the law to ensure the long-term benefits of the parties involved.
terminations He also raised concerns that the issues brought on by the pandemic highlights existing issues in the system when it comes to probationary employees and casual workers. Whilst all types of workers are largely at risk the two groups remain the most vulnerable with very little to no bargaining power. He also stated that with the closing down of many factories a large part of the daily workforce that is affected is female. In expressing his ideas on the question at hand Egalahewa stated that with the complete shut down and the genuine lack of work in many industries the employer is left in a situation where termination occurred due to this.
In these unprecedented situations from a legal standpoint the employers are seen to take the stance of counting it as a ‘frustrating situation’, and in such a situation there is little grounds for the employee to challenge, because the loss of employment is a result of a situation beyond the control of either party. “At this point it's up to the parties to make adjustments of further arrangements with regard to employment. In such an instance where the law doesn't apply, it is a matter of mutual agreement because everything has collapsed,” said Alagaratnam. Sarveswaran in making his comments on the issue stated that, the best option for the parties is to opt for conciliation under the Industrial Disputes Act.
He further stated that in a recent decision by the courts it was held that if a dispute has been settled under Section 12(1) of the Industrial Disputes Act then the same matter cannot be taken up in a Labour Tribunal; which highlights the judicial recognition given to conciliation. Sarveswaran also shared that there is no specific labour legislation ( b e s i d e s other available legislation) with regard to discrimination, especially in the private sector. He raised concerns that this leaves room for discrimination in all forms. He further added that with the introduction of heavily techbased working patterns the senior workforce is at a disadvantage in seeking or keeping employment.
Both parties should come to an agreement
A few interesting questions were raised during the brief Q&A session that followed. Among the points discussed: Egalahewa in answering a question pertaining to the payment of EPF and other statutory dues due to foreign nationals employed locally stated that, such employees are given the same rights under the law as those employed from within the country. In answering a question pertaining to the recruitment of foreign nationals for local employment he shared that in obtaining such a visa it is vital to show that the required skill/ talent cannot be sourced from within the country. In sharing his thoughts about the deduction of wages and leave issues arising out of the pandemic situation Alagaratnam once again emphasised the importance of both parties coming into an agreement on the best way to go forward while being aware of the mutual interest of the parties.
Egalahewa shared the recent developments in New South Wales and the US with regard to workmen compensation where in the decided cases it was held that a workman can claim compensation for injury even when working remotely. The rationale being that they are considered to be working at the place of employment even though not physically being present. The webseries The Law Review 2021 by The American Chamber of Commerce in Sri Lanka aims at talking about similar law related issues and sheds light on the legal position with regard to the same in the country. A webinar is hosted on the second Tuesday of every month. Access to the quoted discussion and similar topics is made available via their website and social media pages.