Bayport Management Ltd v. L. S. Sowkee, a recent judgment of the Supreme Court, has brought clarity to the calculation of time limits provided by law, in this case the period to convene an employee to a disciplinary hearing under the Workers’ Rights Act.
Section 64 “Protection against termination of agreement” provides at section 64(2)(a)(iii) as follows –
“Subject to subsection (3), no employer shall terminate a worker’s agreement… for reasons related to the worker’s alleged misconduct, unless… (iii) the worker has been given at least 7 days’ notice to answer any charge made against him in the oral hearing”
Ms. LMS was employed by BML and had been in continuous employment from October 2011 to December 2019. She was suspended from work on the 14 November 2019. She was notified of the charges against her on the 21 November 2019 and was also convened to appear before a disciplinary hearing on the 28 November 2019. BML thereafter terminated her employment.
She lodged a plaint before the Industrial Court and claimed Rs 5,961,562.25 as severance allowance and one month’s wages as indemnity in lieu of notice.
In its judgment, the Industrial Court surprisingly found that BML had not given Ms. LMS seven days’ notice as the 21 November 2019, date on which she was communicated with the charges and convened to the disciplinary committee, ought not have been included in the statutory seven days. It seems the Industrial Court was also of the view that the date of the disciplinary hearing, the 28 November 2019, ought not be included as the Industrial Court held that Ms. LMS was given only six days to answer the charges levelled against her.
The Industrial Court based its reasoning on section 38(1)(b) of the Interpretation and General Clauses Act which reads as follows –
“In computing time for the purposes of any enactment or document… where there is a reference to a number of days between two events, whether expressed by reference to a number of clear days of “at least” a number of days or otherwise, the days on which the events happen shall be excluded in calculating the number of days.”
The Industrial Court ordered BML to pay Ms. LMS –
- Rs 5,223,652.96/- as severance allowance for 98 months’ continuous service,
- Rs 181,791.75/- representing one month’s wages in lieu of notice
- interest at the rate of 12% per annum on the amount of severance allowance payable from the date of termination of employment to the date of final payment,
- the costs of the case.
BML appealed against the judgment of the Industrial Court, challenging the Industrial Court’s finding that BML had not given Ms. LMS the required notice under section 64(2)(a)(iii)of the Workers’Rights Act. On appeal, the Supreme Court reiterated the principle that –
- where a law provides a time limit for doing something from a given event, the date on which the notice is given “dies a quo” must be included in the computation,
- section 64(2)(a)(iii) of the WRA does not envisage any two events (as wrongly considered by the Industrial Court) but simply states that a worker must have at least seven days’ notice before the oral hearing,
- time begins to run from the day that notice is given and includes that day,
- the computation of the Industrial Court was wrong.
Although no reference was made to sub-section 38(1)(d) of the Interpretation and General Clauses Act, it would seem that it is this sub-section which was applied by the Supreme Court.
“In computing time for the purposes of any enactment or document… where there is a reference to a period of time specified to run from a given date, the period of time so specified shall be calculated do as to include the given day.”
The Supreme Court held that the notice given on 21 November 2019 was seven days before the hearing on 28 November 2019, allowed the appeal and remitted the matter back to the Industrial Court for it to proceed to give a judgment based on the Supreme Court’s findings.
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