January 2023 National News
Jyotirmay Ray v. Field General Manager, Punjab National Bank
2023 SCC OnLine SC 1452
Facts:
The appellant had been employee of the respondent who was compulsorily retired as Senior Manager. He had been accused of committing irregularities while granting loans and cash credit facilities due to which criminal proceedings were initiated against him. To be more specific, he was accused of not carrying out proper due diligence while carrying out these activities. Departmental proceedings were initiated against him pursuant to which the disciplinary authority found him guilty. He was punished through compulsory retirement and terminal benefits such as leave encashment, pension etc were denied to him.
A writ petition under Article 226 was filed by him against the denial of terminal benefits to him. While the petition was pending, the review application filed by him before the respondent also failed. The petition was partially allowed and the appellant was granted employer’s contribution of the provident fund, gratuity with interest, and leave encashment. An intra-court appeal was filed by the respondent which led to only leave encashment being granted to the appellant.
This led to the instant appeal before the Supreme Court.
Arguments of the parties:
1. Petitioner:
Counsel pointed to Rule 13 of the Punjab National Bank Employees’ Provident Fund Trust Rules (‘PF Rules’) which gives the respondent first lien on any contributions made by it in order to recover any losses which might be caused to it due to any dishonest actions or misconduct of its employees. As per the chargesheet, no loss was caused to the respondent and neither was any loss mentioned during the disciplinary proceedings. Hence, it was argued that Rule 13 was not applicable in the instant fact scenario.
Reliance was also placed on Circular No. 1563 of the respondent which was issued on 16/01/1972 with regards to the Payment of Gratuity Act, 1972 (‘1972 Act’). The arguments regarding this circular are not entirely clear. It was also pointed out that the High Court had partially overruled the initial order passed by the single judge bench without assigning any reasons. It was argued that gratuity could not be denied without complying with the principles of natural justice.
2. Respondent:
It was argued that normal retirement cannot be equated with compulsory retirement due to which the respondent’s withholding of gratuity and the respondent’s contribution was valid. Reliance was placed on the judgment handed out by the Punjab and Haryana High Court in UCO Bank v. Anju Mathur [LPA No. 566 of 2012]. Other judgments of High Court were also cited along with the judgment of the Supreme Court in Canara Bank v. Lalit Popli (Dead) [(2018) 11 SCC 87].
Reasoning of the Court:
The Court mainly applied Rule 133 of the PF Rules to the facts of this case to adjudicate the appeal. It noted that that the resolution of the Board of Directors dated 20/12/2010, through which the contributions of the respondent were forfeited, had noted that the respondent had suffered a loss of Rs. 77.59 lakhs due to the appellant. It also noted that the appellant had not been given an opportunity to be heard before the contributions were forfeited. On the basis of this lack of opportunity, it upheld the single judge’s order regarding the payment of contribution.
With regards to gratuity, Regulation 46 of the 1979 Regulations issued by the respondent dealt with the issue of who was entitled to gratuity. However, this provision did not deal with what would happen if an employee was compulsorily retired. Relying on its judgment in Y.K. Singla v. Punjab National Bank [(2013) 3 SCC 472], the Court held that the provisions of the 1972 Act override the PF Rules. Circular No. 1563 had harmonized the 1979 Regulations with the 1972 Act. Clauses 8 and 14 of the circular were relevant in the instant dispute. As per clause 14(1)(a), gratuity could be denied only if termination is not through way of punishment as dismissal or removal provided that the employee has served for at least 10 years. As per that clause, compulsory retirement is not one of the grounds which allow the respondent to deny gratuity. The Court observed that gratuity could not have been denied under the 1972 Act either since no activity mentioned in section 4(6) had been carried out by the appellant.
The Supreme Court affirmed the judgment in UCO Bank insofar as it mentioned that the loss caused must be notified to the delinquent employee. This was not done in the present case. Hence, the Supreme Court struck down the denial of gratuity to the appellant on the basis of the order having violated the principles of natural justice.
Conclusion:
The appeal was allowed.
All India Judges Association v. Union of India & Ors.
WP(C) No. 643/2015, Supreme Court of India
Facts:
The petitioner All India Judges Association (AIJA) filed a writ petition, as it did in the past starting from 1993, seeking the implementation of the recommendations of the Second National Judicial Pay Commission (SNJPC) on pay, pension and allowances of judicial officers of the subordinate judiciary.
Issues:
Whether the recommendations of the SNJPC on pay, pension and allowances of judicial officers are in accordance with the constitutional principles?
Whether the pay, pension and allowances should be given to the district judiciary as per the 7th Central Pay Commission’s recommendations similarly with other administrative departments?
Arguments of the parties:
Petitioner:
The petitioner argued that the pay, pension and allowances of the district judiciary should be equivalent to the increase in the pay of the higher judiciary and not the Central Pay Commission’s report as similar to other administrative departments.
Respondent:
The respondents firstly contended that the multiplier of 2.81 cannot be applied to the District Judiciary across the cadres as it is excessive and the 7th Central Pay Commission’s recommendations should only be applied to the judiciary as well. They also argued that the pay, pension and allowances of judicial officers should be determined by the executive and the legislature and judiciary should not intervene in these matters.
Reasoning of the Court:
The court upheld the recommendations of SNJPC and within the constitutional scheme considering that the district judiciary is a part of the unified judicial system, which requires uniform designations, hierarchy and service conditions of judicial officers across the country. The judicial officers are not employees of the State, but holders of public office who hold sovereign judicial power. They are only comparable to executive and legislative members and not to the members of other administrative departments. Article 50 of the Constitution mentions that the members of the judiciary should be kept separate from the executive in public services of the State. It held that there are negligible financial implications of recommendations of SNJPC as compared to other expenses of the State and thus the claim of the petitioners cannot be denied on this ground.
The court also relied on All India Judges Association v. Union of India (1993) 4 SCC 288 as well as the reports of the FNJPC and SNJPC to hold that the uniformity must be maintained across the country in terms of pay and designation of the district judiciary. Applying the doctrine of inherent powers held that the judiciary must possess the inherent power to “compel payment of those sums of money which are reasonable and necessary to carry out its mandated responsibilities, and its powers and duties to administer justice.”
Therefore, the court laid down that the pay, pension and allowances of the district judiciary should be equivalent to the increase in the pay of the High Court and not based on their ranks and cadres.
Conclusion:
The court accepted the recommendations of the SNJPC on pay, pension and allowances of judicial officers, and directed the Union, the States and the High Courts to bring the rules in conformity with the recommendations within 3 months.
Kaum Faqeer Shah v. Ministry of Labour and Employment
2024 SCC OnLine Del 128
Facts:
The petitioners had filed these writ petitions to obtain the back wages which were due to more than a hundred minor children, including their own, under the Central Sector Scheme for Rehabilitation of Bonded Labourer, 2016. In one of the writ petitions, a prayer was made for the establishment of a mechanism for a time bound recovery of back wages due to the rescued child labourer.
Arguments of the parties:
This case did not involve elaborate arguments from either side. The petitioners merely sought expeditious disbursement of funds and the respondents promised to ensure that this is done. Joint suggestions were made by both sides for the establishment of the mechanism which had been prayed for.
Issues:
No legal issue per se.
Reasoning of the Court:
The Delhi High Court adopted the joint suggestions made by the parties since there was mutual consent regarding their adoption. These suggestions are as follows:
“A. Immediate Financial Assistance
(i) In the event such a rescued child is placed in a childcare/juvenile home under the care of the Govt. of NCT of Delhi, a savings bank account shall be jointly opened immediately after the rescue of the child. Such a bank account shall be opened in the name of the child along with the Superintendent/In-charge of the respective Child Care Institution under GNCTD [as the temporary guardian of the child]. Such a bank account shall be opened by providing the address of the Child Welfare Committee ('CWC') as the temporary address of such child.
(ii) If the parents/guardian of the rescued child are located at any point in time (in future), then subject to due verification and the provision of their bank particulars, the amount of financial assistance shall be transferred by the government electronically within one (1) week from the verification of this information.
(iii) In the event the rescued child is repatriated to his native place immediately upon rescue, the said information shall be shared by CWC with the Department of Labour, Government of NCT of Delhi, so that information with respect to the bank account opened with respect to such a child can be ascertained and necessary financial assistance as well as recovered back wages shall be transferred to such account within one (1) week of receipt of such information.
(iv) In the event that the rescued child who as per (i) remained under the care of the CWC, and during the period of his stay at such CWC attains the age of majority, then, upon such an individual submitting an application directly to the bank where an account has been opened in his name, he/she shall be granted permission to operate such account as a sole individual.
(v) NGOs and Vigilance committees shall extend all coordination and assistance in providing information with respect to bank account details and other relevant documents and records of rescued children or that of their parents/guardians.
B. Recovery of back wages and legal proceedings in this regard
As per the Central Sector Scheme for Rehabilitation of Bonded Labourers - 2016, an expeditious trial under Section 21 of the Bonded Labour System (Abolition) Act, 1976 is to be concluded within three (3) months from the date of identification or rescue, whichever is later.
The benefits to labourers under the Standard Operating Procedure formulated by the GNCTD approved by this Hon'ble Court in its judgment dated 04.07.2018 in W.P. (C) No. 9744/2017 titled "Walter Kerketta v. Sub-Divisional Magistrate, South-East Dist., and Ors." provides that the Labour Department must immediately initiate proceedings for the recovery of back wages from the accused employers/owners, including wages for overtime in accordance with the Minimum Wages Act, 1948. However, there is no time-limit statutorily prescribed under the Minimum Wages Act, 1948 for the initiation and conclusion of the proceedings for the recovery of such back wages. However, it is hereby directed that:
(i) Recovery Notices shall be issued by the Department of Labour, Government of NCT of Delhi within a period of two (2) working days of rescue of a child.
(ii) In recovery proceedings, the Inspector under the Minimum Wages Act, 1948 or the Payment of Wages Act, 1936 shall grant the accused employer/owner two (2) weeks' time to deposit back wages. In those cases, wherein these amounts are not deposited within such a time-frame, the Inspector thereafter requests the Child Welfare Committee ('CWC') to recover the same as fine, as the Chairperson are bench of magistrates. It is directed in case backwages are not deposited by the accused employer/owner within the stipulated period of two (2) weeks, recovery certificates shall be issued by the concerned authority and the backwages shall be recovered as arrears of land revenue by the concerned SDM;
(iii) In cases where the back wages for a particular bonded child labour is recovered, the same shall be disbursed to the said child or his/her parents/legal guardians in identical procedures as outlined for the Immediate Financial Assistance. Such disbursal shall be made within one (1) week from such a recovery.
(iv) NGOs and Vigilance committees shall extend all coordination and assistance in providing information with respect to bank account details and other relevant documents and records of rescued children or that of their parents/guardians in accordance with Clause 11 of the "Standard Operating Procedure for Identification of Bonded Labourers and Release of Immediate Financial Assistance" as approved by this Court in its judgment dated 04.07.2019 passed in W.P.(C) No. 9744/2017, titled "Walter Kerketta v Sub- Divisional Magistrate, South- East Delhi &Ors."
(v) The concerned authority shall ensure that the actual recovery from the accused employer/owner is completed within three (3) months from the date of issue of recovery certificate.
(vi) The concerned departments of GNCTD shall ensure strict time bound compliance of the directions.”
Further, the Court ordered the respondents to disburse the funds owed to the children in a timely manner.
Conclusion:
The writ petitions were disposed of in the above manner.
Dr. Kala C. Mohan v. Employees State Insurance Corporation
2024 SCC OnLine Ker 58
Facts:
This case consisted of O.P. (CAT) Numbers 185 and 186 of 2023. The petitioners in both the cases had been working in the ESIC Hospital, Udyogamandal and had been transferred to ESIC Hospital, Asramam. The petitioner in the first petition had children suffering from severe bronchial asthma and were undergoing surgery while her mother suffered from multiple ailments and was undergoing treatment in the same district as her place of work. In the second case, the petitioner had a mother who suffered from benign paroxysmal positional vertigo and hence needed constant attention and care. Both of them had minor children as well. While the husband of the first petitioner could not come to Asramam due to his job, the husband of the second petitioner lived in Bangalore. The education of their children would also have been disrupted by the transfer order.
These petitions were filed before the Kerala High Court to challenge the order through which they had been transferred to Asramam. When the verdict was announced, the matter was also pending before the Central Administrative Tribunal.
Arguments of the orders:
1. Petitioners:
Counsel mainly argued that they could not move to Asramam, Kollam due to the familial responsibilities which they had to bear. Reliance was also placed on the decision of the Supreme Court in Punjab and Sind Bank v. Mrs. Durgesh Kuwar [(2020) 19 SCC 46].
2. Respondents:
The arguments made by the respondents have not been reproduced in the verdict.
Issue:
Was the transfer order valid in law?
Reasoning of the Court:
The Court held that employers must show open-mindedness, empathy, and understanding in cases such as these where working women with multiple familial responsibilities were involved.
The High Court ordered for status quo to be maintained till the original applications filed before CAT were disposed of.
Conclusion:
The petitions were disposed of in the above terms.
Attikaribettu Grama Panchayath v. Ganesha
2024 SCC OnLine Kar 2
Facts:
The respondent had been an employee of the appellant who had filed a writ petition before the Karnataka High Court in order to get reinstated to his post since he had been terminated by the appellant. The decision to terminate had been taken due to a criminal case having been filed against the respondent and he was not asked to show cause before his termination. The petition was allowed by a single judge bench due to which the instant appeal was filed.
Arguments of the parties:
Counsels’ arguments were not noted in the verdict.
Issue:
Was the dismissal of the respondent valid in law?
Reasoning of the Court:
The High Court held that the mere filing of a criminal complaint against a person does not provide sufficient reason for terminating employment. The opposite is true if an employee is convicted of an offence involving moral turpitude. Further, the Court noted that the principles of natural justice had been violated due to the respondent not having been heard before he was fired.
Hence, the Court upheld the single judge bench’s reasoning.
Conclusion:
The appeal was dismissed.
Sangram Keshary Mohanty v. State of Odisha
2023 SCC OnLine Ori 6477
Facts:
The petitioner was a Reader in English at a college when proceedings were initiated against him under Rule 22 of the Orissa Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules, 1974. Chapter IV of the 1974 Rules, in which Rule 22 is contained, deals with disciplinary proceedings while Rule 22 deals with major penalties. The proceedings did not attain completion despite the petitioner having superannuated. This writ petition was filed by the petitioner for quashing the proceedings.
Arguments of the parties:
1. Petitioner:
It was contended by counsel that proceedings could not continue due to the retirement of the petitioner. The judgment of the Supreme Court in Bhagirathi Jena v. Board of Directors, O.S.F.C. (Civil Appeal No. 2101 of 1999) and Dev Prakash Tewari v. U.P. Cooperative Institutional Service Board (Civil Appeal No. 5848-49 of 2014) was cited in support of this argument. The judgment of the Orissa High Court in (2020) 1 OLR 535 was also cited by the petitioner.
2. Respondent:
The counsel for the Government conceded that there was no provision in the 1974 Rules or the Odisha Aided Educational Institution’s Employees Retirement Benefits Rules, 1981 which would allow for proceedings to be continued with after superannuation had occurred.
Issue:
Could disciplinary proceedings initiated against the petitioner continue even after superannuation had taken place?
Reasoning of the Court:
The High Court quashed the proceedings by placing reliance on the judgments cited by the petitioner. It ordered the grant of pension and other pensionary benefits to which the petitioner was entitled to within a period of three months.
Conclusion:
The writ petition was allowed.
Sarabjeet Singh Sidhu v. State of Punjab
2023:PHHC:164672
Facts:
The petitioner’s son had died in the course of his duties as a sub-lieutenant pilot while serving in the Indian Navy during Operation Pawan in Sri Lanka. This writ petition was filed by the petitioner, since deceased, for appointment of his grandson (from a different son) as a Dep. Superintendent of Police as per instructions issued on 24.09.1999 and 19.08.1999.
Arguments of the parties:
1. Petitioner:
Counsel pointed to the instructions mentioned above as providing grounds for the appointment of the grandson. Further, as per an affidavit filed on 17.11.2022 by an Assistant Inspector General of Police, even nephews of martyrs had been appointed to the police department. It was argued that no distinction ought to be drawn between persons who died while serving in the police department on the one hand and war heroes and martyrs of the armed forces on the other hand.
2. Respondent:
Counsel mainly submitted that only relatives of persons who died in the course of their duties as members of the Punjab police were appointed.
Reasoning of the Court:
The High Court stated that martyrs of the armed forces cannot be put on a lower pedestal as compared to martyrs of the police force. It relied on the affidavit dated 17.11.22 and the fact that multiple relatives of martyrs of the armed forces had been appointed to the police force in the past. Ultimately, it ordered the respondents to consider the petitioner’s grandson for appointment to the asked for post, or any other similar post in the police department.
Since the petitioner had passed away, his grandson was asked to place on record an affidavit to the effect that he will take care of the petitioner’s legal representatives.
Conclusion:
The writ petition was allowed.
Management of M/s. Tata Advanced System Ltd. v. Secretary to Department of Labour
Writ Petition No. 7674 of 2023 (L-RES) (Karnataka High Court)
Facts:
Respondent No. 2 was employed by a labour contractor who worked for the petitioner. He had certain grievances which he communicated to the Labour Commissioner. Conciliation proceedings did not have a fruitful result due to which the dispute was eventually referred it the Industrial Tribunal, Bangalore by respondent no. 1. The main dispute which had to be adjudicated by the Tribunal was whether respondent no. 2 was justified in asking for regularisation. The petitioner filed this writ petition against the order of respondent no. 1 through which the dispute was referred to the Industrial Tribunal.
Arguments of the parties:
1. Petitioner:
Counsel argued that a dispute could have been referred to the Tribunal under the Industrial Disputes Act, 1947 only if the dispute satisfies the definition of “industrial dispute” under section 2(k). It was contended that such a dispute must be solely about termination, dismissal, or discharge by relying on section 2(a). Hence, it was argued that the dispute was not an industrial dispute due to which the order of respondent no. 1 was bad in law.
2. Respondents:
It was argued that section 2A is relevant for the present proceedings since it carves out an exception to the definition provided under section 2(k). Hence, it was argued that the referral order was valid in law.
Issue:
Was the order of respondent no. 1 valid in law?
Reasoning of the Court:
The Court referred to Workmen of Dharampal Premchand (Saugandhi) v. Dharampal Premchand (Saugandhi) [AIR 1966 SC 182] in which it was held that a dispute raised by an individual workman can be referred under section 10 only if the matter has been taken up by the trade union to which he belongs or else by a group of employees. It also referred to other similar cases.
Hence, since the case of respondent no. 2 had not been taken up by a trade union, the Court held that the referral order could not have been passed.
Conclusion:
The writ petition was allowed.
Sanjay M. Peerapur v. Union of India
Writ Petition No. 62966 of 2011 (S-RES) (Dharwad Bench of Karnataka High Court)
Facts:
This writ petition was filed against the 100% reservation provided for women for the posts of the Indian Military Nursing Services under section 6 of the Indian Military Nursing Services Ordinance, 1943 (‘1943 Ordinance’). The first two petitioners were men who wanted to become nursing officers but could not become such officers due to the 1943 Ordinance. The third petitioner was the Karnataka Nurses Association.
Arguments of the parties:
1. Petitioner:
It was argued that matters of public employment were affected by Articles 14 and 16 but not Article 15(3). Alternatively, it was submitted that Article 15(3) could not override Article 16(2), which provides for lack of discrimination on the ground of sex when it comes to public employment. Counsel submitted that the classification provided in section 6 does not pass the tests of reasonable classification and rational nexus. Lastly, it was submitted that section 6 was a temporary measure which has no role to play in current day India.
Multiple judgments were relied on by the petitioners including Indra Sawhney v. Union of India [AIR 1993 SC 477] and Mississippi University for Women v. Hogan [458 U.S. 718] among others.
2. Respondents:
Counsel argued that the purpose of exclusive reservation was to fill up temporary vacancies that might arise whenever male nursing officers (recruited through a different mode) are called to provide medical aid to soldiers. Further, there was no discrimination against men since men had 100% reservation if they applied through a different recruitment process.
It was argued that Article 15(3) saves the 1943 Ordinance and that it overrides the rule against discrimination laid down in Article 16(2). Alternatively, it was argued that the violation of Articles 14 and 16 are still valid under Article 33 since this is a matter concerning employees in the armed forces.
Lastly, though not a legal argument per se, it was essentially argued that the petitioners were being hypocritical insofar as they had not challenged the law providing for 100% reservation for men in the other recruitment process. Reliance was placed on multiple cases including Air India v. Nergesh Meerza [AIR 1981 SC 1829], Indra Sawhney v. Union of India [AIR 1993 SC 477], and M. Nagaraj v. Union of India [(2006) 8 SCC 212].
Issues:
The issues were framed by the Court as follows:
1. Whether section 6 of the Indian Military Nursing Services Ordinance, 1943, reserving the post of ‘nursing officers’ en bloc for women, violates the rights guaranteed under Articles 14, 16, 19, and 21 of the Constitution of India?
2. Whether the impugned provision is protected under Articles 15(3) and 33 of the Constitution of India?
It is unclear why the Court referred to Articles 19 and 21 since neither party had based their arguments on those articles.
Reasoning of the Court:
The High Court pointed out that it has not been held in either Shamsher Singh or Indra Sawhney that Article 16(2) is overridden by Article 15(3). In fact, the opposite conclusion was reached in Indra Sawhney since it was held that providing reservations to women would be permissible in certain cases despite Article 16(2) providing for non-discrimination. The Court said that while there might be certain posts requiring vacancies to be reserved for women, no evidence was brought on record to show that the post of nursing officer is one such post.
Further, the argument that there is equality since there is reservation for men as well was dismissed by the Court. It stated that there was no guarantee that recruitment under both the recruitment methods would take place simultaneously due to which there would be denial of equal opportunity in employment. Hence, it held that this state of affairs is not in consonance with Article 14.
Further, after considering the last argument made by the respondents, the Court held that the mere fact that the petitioners had not challenged the reservation available to men does not provide sufficient grounds for dismissing the petition. It observed that constitutional validity of any provision is not contingent on the petitioners challenging even other similar provisions. It held that each law has to be considered in a standalone manner when its validity is challenged.
The High Court held that the main purpose behind the 1943 Ordinance had been extinguished since its main purpose had been to ensure a steady supply of nursing officers during World War II.
It also cited a recent case of the Chhattisgarh High Court, Abhay Kumar Kispotta v. State of Chhattisgarh [Writ Petition No. 7183 of 2021], in which it was held that hundred percent reservation for women in employment under the State is illegal by relying on Indra Sawhney.
For all the above reasons, it answered the first issue in the affirmative.
Coming to the second issue, the Court firstly held that the 1943 Ordinance could not be saved under Article 33 since it was not a law made by the Indian Parliament. Secondly, it held that the subject matter of the 1943 Ordinance was outside the scope of Article 33. Hence, it answered the second issue in the negative.
Given the fact that the 1943 Ordinance had been in force for multiple decades, the High Court prospectively declared the words “if woman” in section 6 to be unconstitutional in nature.
Conclusion:
The petition was allowed.
January 2023 International News
Charles Gregory Gregory v. Maxxia Pvt. Ltd.
[2023] FWC 2768
Facts:
The applicant was working for the respondent which was an organisation providing salary packaging advice and assistance to employers. He was working as an advisor and as a Support Coach to the Coaching and Quality Assurance Team. The respondent had a Hybrid Working Guidelines policy which required employees to do at least 40% of their working hours from the office.
The applicant filed an application seeking permission to work full time from his residence since he was seeking a custody arrangement whereby he would care for his school going child ever second week. When the application was made, he was only caring for his child for one day every two weeks.
After taking into account the nature of the work carried on by it, the respondent partially allowed the request in August 2023 by asking the applicant to work in the office only for 20% of the time till the end of September 2023. It asked him start working the required 40% from the 2nd of October 2023. It also stated that it would allocate his office days to weeks where he would not have custody. This offer was rejected as the applicant was adamant about working full time from home. The applicant also pointed out that he had inflammatory bowel disease in support of his application. The respondent explicitly refused to grant him the liberty to work full time from home.
This led to the dispute being brought before the FairWork Commission under section 65B of the Fair Work Act, 2009.
Arguments of the parties:
The arguments have not been set out in great detail in the verdict of the Commission. It merely noted that it was the respondent’s case that its refusal was valid under section 65A(3)(d) of the 2009 Act due to it being based on reasonable business grounds.
Issue:
Was the refusal of the applicant’s request valid under the 2009 Act?
Reasoning of the Court:
Section 65(1A)(c) when read with section 65(1)(a) leads to the conclusion that an employee may ask for a change in working arrangements if he has a disability. Due to his health condition, the applicant had to use the washroom with great urgency more regularly than usual. The Commission held that this condition did not amount to a disability in the normal sense of that word. Hence, no request could for changed working arrangements could have been made by the applicant on the basis of his health.
Section 65(1A)(a) read with section 65(1)(a) provides for a request for changed working arrangements due to the employee being the parent of a child who is of school age or younger. The Commission held that section 65(1A)(a) would be fully available to the applicant only when the custody arrangement is fully worked out and that even then the applicant could ask for changed arrangements for only that period during which he actually had custody.
The Commission held that the reasoning involved behind the refusal disclosed reasonable business grounds through section 65C(1)(b)(i) of the 2009 Act.
Conclusion:
The application was dismissed.
Werner Van Wyk v. Minister of Employment and Labour
[2023] ZAGPJHC 1213 (Gauteng Division of the High Court of South Africa)
Facts:
The constitutionality of sections 25, 25A, 25B, and 25C of the Basic Conditions of Employment Act, 1997 (‘BCEA’) was challenged in this case. These sections deal with maternity leave, parental leave, adoption leave, and commissioning parental leave respectively. The applicants in this case were a married couple (the Van Wyks) with children, Sonke Gender Justice (an NGO), and the Commission for Gender Equality.
Arguments of the parties:
1. Applicants:
It was argued that section 25(1) is unconstitutional since there is no valid basis for discriminating between mothers and fathers. The discrimination carried out by section 25 was said to violate the dignity of all parents. While the Van Wyks wanted the 4-month leave to be shared between the two parents, the other two applicants wanted equal amount of leave to be given at the same time to the parents.
It was argued that discrimination between three classes viz. birth parents, adoptive parents, and parents of a child through surrogacy amounted to unfair discrimination which violated the dignity of all parents. It was contended that all parents should have an equal amount of leave.
Thirdly, it was argued that providing leave to adoptive parents only if the child is less than two years of age is irrational and amounts to unfair discrimination.
All of these arguments rested on sections 9 and 10 of the Constitution of South Africa which provide for the right to equality and the right to dignity respectively.
2. Respondent:
The Minister made carried out a lot of argumentation which did not involve any legal reasoning. It was argued that the BCEA provided better benefits than statutes on the same subject matter in other countries having the same socio-economic profile as South Africa. Further, it was contended that the BCEA contained policy judgments taken by Parliament due to which the matter was not fit to be questioned in a court of law. An intervenor, NEASA, also made a similar policy argument that the arguments of the applicants, if accepted, would have adverse effects on businesses due to which the matter should be left to Parliament.
Reasoning of the Court:
The Court largely relied on para 54 of Harksen v. Lane [1998 (1) SA 300 (CC)] to determine what amounts to unfair discrimination. As per this case, one must first determine whether or not discrimination has occurred and then further check if the discrimination is unfair in nature.
The Court only dealt with the second question in these proceedings since it was fairly clear that the impugned sections discriminated on the basis of gender as well as on basis of kind of parenthood.
The Court held that the main reason behind providing leave could not just be physiological recovery but also to ensure that proper care can be given by the parents to their child. Thus, it held that the discrimination on the basis of gender, providing 4 months maternal leave and 10 days of paternal leave, is at odds with sections 9 and 10 of the South African Constitution. It further noted that this discrepancy had the effect of perpetuating gender stereotypes with regards to who the primary care-giver in a household is. It cited the example of Van Wyks themselves to show how this discrimination had adverse effects. While Mr. Van Wyk was a salaried employee, Mrs. Van Wyk had a business of her own which would have failed had she not gotten to work quickly after the birth of her child had taken place. Hence, due to the discriminatory provisions of the BCEA, Mr. Van Wyk had to go on partly unpaid leave beyond the 10 day period to care for their child.
It further held that providing only 10 weeks of leave for commissioning and adoptive mothers on the one hand and providing 16 weeks to biological mothers was not justifiable. Hence, it held that this discrepancy amounted to unfair discrimination and that all kinds of mothers – whether adoptive, commissioning, or biological – ought to be given the same amount of leave in order to prevent section 9 from being violated.
The High Corut was not of the opinion that the limited leave for adoptive parents amounts to unfair discrimination. While it agreed that the need for bonding is much greater when the adopted children are relatively older, it held that the mere fact that the BCEA’s leave provisions did not provide much scope for such bonding does not mean that section 9 has been violated.
The Court was of the opinion that there was not much substance in the arguments made by the respondent. It did consider in some detail the argument regarding the inclusion of policy judgments in the BCEA, but it eventually dismissed the argument. It also refused to entertain the argument that Parliament should not “attempt to engineer cultural and social changes in the family structures”. NEASA’s arguments were also rejected.
Lastly, the Court adopted the proposal put forth by the Van Wyks regarding the manner in which parental leave was to be distributed between the two parents.
Conclusion:
The applications were allowed in the above terms.
Ms. P. Sullivan v. Isle of Wight Council
[2024] EAT 3 (Employment Appellate Tribunal at London)
Facts:
The claimant had given two job interviews to obtain different posts which were vacant at the respondent. Both of these interviews were not successful for the claimant. She filed a criminal complaint against the respondent around one month after the second interview due to the claimant having allegedly been called “mentally insane” in both the interviews.
An internal investigation by the respondent led to the conclusion that no wrongful conduct had been carried out during the interview by the interviewer. She was not allowed to appeal the result of the investigation. It was claimed that the main reason behind her being denied an appeal was that she had previously blown the whistle on the respondent’s Manager’s involvement in questionable activities. She had sent a letter to the local MP setting out the misconduct of the said Manager. Hence, as per the claimant, she was being discriminated against because the respondent thought that she was likely to blow the whistle on any of its activities that it might like to remain confidential in nature. She also claimed that her rights under the European Convention on Human Rights, namely the right against discrimination under Article 14 and the right to freedom of expression under Article 10, had been breached.
Her claim was dismissed by the lower Tribunal on the grounds that she could not claim the right under section 47B(1) of the Employments Right Act, 1996 (‘1996 Act’) to not be discriminated against on the basis of protected disclosures made by her since she was not a worker of the respondent. Further, it also held that her right under Article 14 had not been violated since a job applicant like her was not in an analogous position to job applicants who applied for roles in NHS. The claimant had made this argument since section 49B of the 1996 Act allows for protection akin to section 47B to be extended to persons who had applied for jobs at the NHS.
This led to the instant appeal.
Arguments of the parties:
1. Claimant:
Counsel argued that the claimant’s right under Article 14 had been violated since she had been treated less favourably than other job applicant in analogous positions. These other persons being (i) internal job applicants (already employed) and (ii) NHS job applicants seeking non-clinical roles. Hence, it was claimed that the respondent had violated its obligation under section 3 of the Human Rights Act, 1998 (‘1998 Act’) to comply with Articles 10 and 14 of the ECHR.
The decision of the UK Supreme Court in Gilham v. Ministry of Justice [2019] UKSC 44 played a crucial role in the argumentation since it laid down four questions which had to be considered whenever an action was challenged on the basis of it violating Article 14 of the ECHR. These questions are as follows: “(i) do the facts fall within the ambit of one of the Convention rights; (ii) has the applicant been treated less favourably than others in an analogous situation; (iii) is the reason for that less favourable treatment one of the listed grounds or some “other status”; and (iv) is that difference without reasonable justification - put the other way round, is it a proportionate means of achieving a legitimate aim?” It was argued by the claimant that Gilham had been satisfied due to which she was entitled to succeed in her claim.
The preferred remedy of the claimant was the insertion of new clause, clause (e), into section 43K(1) of the 1996 Act. This clause would be as follows: “applies for employment and who, if they were successful in that application, would be a worker within section 230(3).”
2. Respondent:
The main argument put forth by the respondent was that the claimant was akin to any other member of the public from the perspective of the respondent due to which the analogy sought to be drawn by her was faulty in nature. Hence, the Gilham test was not satisfied due to which the claimant ought not to succeed in her claim.
Issue:
Had the claimant’s rights under Articles 10 and 14 of the ECHR been violated due to the respondent denying her an appeal against the conclusion of the internal investigation which it had carried out?
Reasoning of the Court:
After carrying out an elaborate discussion, the Employment Appellate Tribunal arrived at the conclusion that the lower Tribunal had been correct in holding that the second prong of Gilham had not been satisfied. Hence, it was held that Article 14 had not been violated.
Conclusion:
The appeal was dismissed.
XT v. Keolis Agen SARL
C-271/22 to C-275/22 (European Court of Justice)
Facts:
The respondent was a private company with a public service delegation with regards to transport. The applicants were or had been employees of the respondent. They had been absent for work due to illness for about an year. Hence, they asked the respondent to give them their paid days of leave, which they could not avail of during their illness, after they returned to work in case of those who were still employees. In case of the applicants who had left the respondent, a demand was made by them for an allowance in lieu of the paid days of leave which they did not take. All applications were put forth before 15 months had ended after the end of the one-year reference period in which the right to such leave had arisen. The applications were limited to entitlements accrued during, at most, two consecutive reference periods.
All applications were rejected under Article L. 3141-5 of the French Labour Code. Proceedings initiated before the Labour Tribunal at Agen, France eventually led to this request for a preliminary ruling from the ECJ on EU law under Article 267 of the Treaty on the Functioning of the European Union.
Arguments of the parties:
1. Applicants:
The applicants claimed that the rejection of the applications was invalid under Article 7(1) of ‘Annual Leave’, i.e. EU Directive 2003/88, which states that Members of the EU shall ensure that workers are entitled to a minimum of four weeks of paid annual leave. It was also argued that Article 31(2) of the Charter of Fundamental Rights of the European Union, which provides a right to an annual period of paid leave, had been violated.
2. Respondent:
The full arguments of the respondent are not set out in the verdict. However, one argument regarding the admissibility of the third question is mentioned in the verdict. With regards to the third issue, the French Government argued that the Labour Tribunal had incorrectly assessed French law on this point by incorrectly interpreting the case law of the Cour de cassation. It was argued that it is not apparent from such precedent that absence of a provision in domestic law regarding carry-over period means that there is an unlimited carry over period. The French Government contended that the normal limitation period of 3 years provided under Article L. 3245-1 of the French Labour Code would be applicable. Thus, it was claimed that the question could not be considered since it was purely hypothetical in nature.
Issues:
The Labour Tribunal framed the following issues for the consideration of the European Court of Justice:
1. Must Article 7(1) be interpreted as being directly applicable in relations between a private transport operator, with a single public service delegation, and its employees, in the light, in particular, of the liberalisation of the rail passenger transport sector?
2. What is a reasonable carry-over period in respect of the acquired entitlement to four weeks’ paid annual leave within the meaning of Article 7(1), in so far as the time during which annual leave may be accrued is one year?
3. Is the application of an unlimited carry-over period in the absence of a provision of national law, a regulation or convention governing that period contrary to Article 7(1)?
Reasoning of the Court:
After considering its previous decisions, the Court answered the first question by holding that Article 7 of the Directive and Article 31(2) of the Charter lead to the conclusion that the right to paid annual leave can be enforced by an employee against his employer. The fact that the employer might be a private undertaking with a public service delegation is not legally relevant.
The Court held that it had no jurisdiction to decide the second question since it is apparent from the wording of Article 7 that individual Member States have to lay down the conditions for the invocation of the right to paid annual leave through domestic legislation. It agreed with the written submissions made by the European Commission and the French Government on this point. Both of them had stated that the carry-over period falls within the conditions for the exercise and implementation of the right due to which it has to be determined through domestic law.
The ECJ held that the third question was admissible in so far as it relates to “requests for paid annual leave made by a worker less than 15 months after the end of the reference period in which the entitlement to that leave arose and limited to two consecutive reference periods.”
By perusing its past decisions, the Court arrived at the conclusion that Article 7 of the Directive must be held to not exclude national legislation or practice which allows requests for paid annual leave of the kind just mentioned above. This ruling was given on the assumption that there is no national provision laying down an express temporal limit on the carry-over of entitlements to paid annual leave.
Conclusion:
The requests for a preliminary ruling were answered in the above terms.
BU v. Comune Di Copertino (EU)
Case C-218/22, Court of Justice of the European Union
Facts:
BU had been an employee of the Municipality of Copertino in the post of Administrative Officer since 1992. He took a voluntary resignation on 1st October 2016 in order to take early retirement. As he had accumulated a paid leave of 79 days in his service from 2013 to 2016, he applied for an allowance in lieu of that paid leave. The Municipality refused. He took action in the District Court. The Municipality opposed by stating that BU had taken leave during 2016 showed that he was aware of his obligation, in accordance with that provision, to take the days of leave that he had accrued before the end of the employment relationship. The court referred the case to the Court of Justice of the European Union for a preliminary ruling.
Issues:
Whether BU was allowed to take allowances in lieu of leaves not taken even though he took voluntary resignation?
Relevant law:
European Law :
Clause 1 of Article 7 of Directive 2003/88, titled ‘Annual leave’ prescribes for at least four weeks paid leave annually to every worker. Clause 2 states that only when the employment relationship is terminated the minimum period of paid annual leave may be replaced by an allowance.
Article 5(8) of Decree-Law No 95 prescribes the need to control public expenditure and to ensure the actual taking of leave by public servants.
Italian Law:
Article 36(3) of the Italian Constitution also prescribes a weekly paid leave, normally on Sunday, and this right of a worker cannot be waived off.
The wider issue remains: whether the laws of the EU, Article 7 of Directive 2003/88 and Article 5(8) of Decree-Law No 95 are compatible with the national legislation to provide allowances for paid leaves not taken. Article 5(8) of Decree-Law No 95, in essence, does not permit allowances for the paid annual leaves not taken.
Arguments of the parties:
Petitioner:
BU argued that he was entitled to the allowance in lieu of paid leave not taken, as provided by Article 7(2) of Directive 2003/88 and Article 31(2) of the Charter, regardless of the reason for the termination of the employment relationship.
Respondent:
The Municipality of Copertino argued that Article 5(8) of Decree-Law No 95 was justified by the need to control public expenditure and to ensure the actual taking of leave by public servants, in accordance with the national and EU law principles.
Reasoning of the court:
The CJEU held that Article 7 of Directive 2003/88 and Article 31(2) of the Charter must be interpreted as precluding national legislation of Italy that prohibits the payment of an allowance in lieu of leave not taken on the date of termination of the employment relationship, where the worker voluntarily terminates the employment relationship and has not shown that he or she had not taken his or her leave for reasons beyond his or her control. It reasoned that the right to paid annual leave and the right to an allowance in lieu of leave not taken are fundamental rights that cannot be subject to any conditions other than those clearly stated in the directive. Reasons like voluntary resignation for the termination of the employment relationship are not relevant to the entitlement to the allowance in lieu, and the objectives of controlling public expenditure and ensuring the actual taking of leave cannot justify a limitation of that right.
It also directed that this right can only be not entitled in the condition when the employer shows that it has given ample opportunity to the worker but he only did not use it.
Conclusion:
The CJEU held that Article 5(8) of Decree-Law No 95 is incompatible with Article 7 of Directive 2003/88 and Article 31(2) of the Charter and BU is entitled to take allowance for leave not taken.