clr/1987/1987_1_509.pdf

(1985)1C L R 206 Case stated. Case stated by Chairman of the Industrial Disputes Court relative to his decision dated 19th February, 1987 in proceedings under sections 3 and 9 of the Termination of Employment Law, 1967 (Law No. 24 of 1967) instituted by Androulla Ceorghiou against Shoemex Ltd. whereby the respondent was ordered to pay to the applicant compensation plus £270. -wages in lieu of notice for wrongful or unjustified dismissal. Chr. Kitromilides, for the appellants. M.Papapetrou with A. Sophocleous, for therespondent. Cur. adv. wit. 509 ShoemeE Ltd.v. Georghiou

(1987)TRiANTAFYLLIDES P.: The judgment of the Court will be delivered by Loris. J. LORIS J.: This is an appeal, by way of case stated, directed against the decision of the Industrial Disputes Tribunal dated 19.2.1987, whereby theappellant company wasadjudged topay 5 to the respondent compensation plus £270.- wages in lieu of notice for wrongful or unjustified dismissal of the respondent. pursuant to the provisions of sections3 and 9 of the Termination of Employment Law 1967.(Law No.24/67) as amended. The appellant is a limited company running a shoe-factory at 10 Strovolos. The respondent was working as a labourer with the appellant company from 14.6.1974 up to 27.5.85 when she was dismissed bythe appellants without notice. The respondent applied to the Industrial Disputes Tribunal 15 claimingcompensation and payment ofwagesinlieuofnotice,for wrongful or unjustified dismissal under sections 3 and 9 of the Termination of Employment Law 1967 (Law No. 24/67), as amended. The appellants defended the aforesaid application relying on 20 alleged facts which were bringing the aforesaid termination of employment within the ambit of the provisions ofs.5(a)and (e)of Law 24/67, so that such a termination of employment would not give rise to compensation. The relevant provisions of section 5 referred to above read as 25 follows: «5. Termination of employment for any of the following reasons shall not give rise to a right to compensation: (

1. a)Where theemployee failstocarryout hisworkinareasonably efficient manner: Provided that temporary inability towork due to sickness, injury, maternity or disease shall not be construed as falling within this paragraph; (e)Wheretheemployee soconductshimselfsoastorender himself liable todismissal without notice: 510 35 1 C.L.H. Shoemex Ltd.v.Georghlou Loris J . Provided that where the employer does not exercise his rights of dismissal within a reasonable period following the matter whicrOgave rise to this right, he shall be deemed to havewaivedhisrighttodismissthe employee» Theallegedfactsrelieduponbytheappellantsweretotheeffect thattherespondent inspite previouswarningsbytheappellant for unjustified absence from work, for several daysduringthe years 1982 and 1983shewasagainunjustifiably absent fromwork with 10 the appellant company from the 8th up to the 25th May 1985, whilst she was fit for work throughout the saidperiod and in fact shedidwork during the latterperiodcollectingstrawberriesinher own property The Industrial Disputes Tribunal- after hearing the evidence 15 adducedby bothsidesmadethefollowingfindingsof fact: (
2. a)that the absence of respondent from work during previous yearswasduetoillnesscertifiedbyGovernmentDoctorandinany event the appellants did not exercise their right, if any, within reasonable time andasenvisagedby theproviso tos.5(e)of Law 20 24/67 they must have been deemed to have waivedsucha right inrespect of previous years. (
3. b)the decisive factor which led to the dismissal of the respondent without notice on 27.5.85 was the latter's absence from work between the8thand25thMay, 1985. 25 (c)herabsencefromworkfrom8thofMayuptothe10thofMay wasjustifiedasshewasill.nomedicalcertificatewasproducedfor theaforesaidperiodastherespondentwasconveyedtothedoctor on 11.5.1985 but thetrialCourtwassatisfiedthatthecondition of her health as later revealed by medical and bacteriological 30 examination justified her absence from work throughout the said period. (
4. d)that according to the medical certificate and the relevant bacteriological examination the respondent was suffering from infectionoftheurinarytract;themedicalcertificate recommended 35 further examination andabstention from work initially during the period11.5.85-17.5.85andfurtherstayoutofworkfrom 18.5.85 up to andincluding25.5.85. 511 LoriaJ, SbMBMi Ltd. v.Georfhiou

(1987)These were the main findings of fact made by the Industrie Disputes Tnbunal as a result thereof the tribunal reached the conclusion thatthe absence of respondent from work throughout the penod of 8 5 85 -25 5 85 was fully justified and dismissing the allegations of the appellant that the termination of the 5 employment was withir. 'he ambit of the provisions of s 5of Law 24/67, awarded to the respondent compensation for wrongful or unjustified dismissal under sections 3 and 9 of Law 24/67 as amended The present appeal, by way of case stated isdirected against the 10 aforesaid decision of the Industrial Disputes Tribunal and the two questions posed by theTnbunal for ourdeterminationare in effect questions revolving on the findings of pnmary facts made by the Tribunal Learned counsel appeanng for the appellant strenuously 15 argued against the findings of the tribunal on pnmary facts He rightly conceded that in order to succeed he had to convince us that the findings of the Tnbunal in respect of pnmary facts was wrong We have made it clear to htm that it is entirely within the 20 province of the tribunal, (who has the opportunity of hearing the witnesses and watching their demeanour in the witness box) to evaluate the evidence adduced and make his findings of fact (vide Glykis ν Municipal Committee of Nicosia

(1985)1 C LR 206 atρ 208) Outtask isconfined inapplying theLaw tothefacts 25 as found by theTnbunal So we did notcall upontheotherside Thefindings of fact made by the Tnbunal unequivocally lead to the conclusion that the dismissal of the respondent was wrongful and unjustified and the appellants cannot in the circumstances avail themselves of the 30 provisions of s 5 of Law 24/67 Inthelightof theforegoing, we refuse thisappeal by way of case statedand we remit thecase,with ouropinionas containedinthis judgment to the Industnal Disputes Tnbunal for the necessary action The costs of thisappeal willfollow the event Order accordingly 512 35