Dr. Prathiba Mahanamahewa | Pic by Ravindra Dharmathilake

Sri Lanka needs to have a serious look at expediting the implementation of the Health and Safety Bill of employees, and data protection laws in keeping in line with the current trends and challenges at workplaces worldwide, Commissioner, Human Rights Commission of Sri Lanka (HRCSL), Dr. Prathiba Mahanamahewa said last week.

Addressing a seminar on ‘Emerging Trends of Employment Laws’ at the Ceylon Chamber of Commerce (CCC) on July 13, Dr. Mahanamahewa stated that Sri Lanka lacked key bills which were mandatory in the current context.

He stated that the Health and Safety Bill had already been drafted but was yet to be passed in order to be made law.

In his presentation at the seminar, Dr. Mahanamahewa touched upon various aspects including the different types of employees, their working styles and patterns, and their entitlements pertaining to the institution they work for.

Speaking further, he also touched upon aspects such as foreigners indulging in trade in Sri Lanka without valid documents.

Dr. Mahanamahewa pointed out that Sri Lanka needed strict regulations and laws pertaining to foreigners coming down to Sri Lanka and indulging trade in an illegal manner and added that Sri Lanka’s immigration officials needed to be more effective in terms of tackling this issue.

In his speech to the gathering, the Commissioner of HRCSL listed out key points that a modern day Contract of Employment needed to include. Accordingly, an employer must furnish in writing to an employee the following: Name of employee and designation and nature of the appointment, date on which the appointment takes effect, Grade to which the person is appointed, basic remuneration and scale of remuneration, whether remuneration is paid weekly, fortnightly or monthly, cost of living allowance (if any) and other allowances (if any), period of probation or trial (if any), and the conditions governing such period of probation or trial, and circumstances under which the appointment may be terminated during such probation or trial.

In addition aspects such as circumstances and conditions under which the employment may be terminated, hours of work, number of weekly holidays, annual holidays, casual and privilege leave, which such person is entitled to, overtime rate payable, provision of medical aid by the employer (if any), provision of and the conditions governing and provident fund, pension scheme or gratuity scheme applicable to the employment, and prospects of promotion, should also be included in the contract.

Types of employees
HRCSL Commissioner, Dr. Prathiba Mahanamahewa differentiated the types of employees recruited by institutions and explained the manner in which they are recruited, assigned jobs, the manner and circumstances under which their services could be terminated, and the measures that could be taken by the affected party in order to obtain compensation, in the event the services of the employee was terminated against the laws or institutional regulations. Accordingly, the types of employees are as follows: Interns/ apprentices, trainee, temporary, probationary, permanent, casual, contract basis, seasonal and self-employment.

In the case of an apprentice there is no contract of service. Therefore, he cannot be considered a workman or an employee in the normal sense.

An apprentice is a person who is there to learn the trade, and the master or employer has undertaken to train him and prepare him to understand the trade in which he is engage. In Sri Lanka, certain statutes regulate the taking in of trainees and apprentices.
Apprentices or trainees have been also brought within the definition of workman in some of the Statues and therefore, have gained a certain degree of probation.

A probationer is an employee who enters into a contract of employment with the employer.

A period of probation is set out in the contract of employment for the purpose of enabling the employer to assess the capacity and capability of the workman. The contract may have a provision for an extension of the probationary period if the employer so desires.

A probationer can be said to be on trial until the expiry of the probationary period, but there is no guarantee of his being confirmed at the end of the probationary period.

The question arises as to whether a probationer’s services could be terminated before the expiry of the probationary period. Such a termination could be effected for misconduct.

But his services could be terminated for unsatisfactory work only at the termination of the probationary period, except where the contract provides for such a termination.

Casual employment
A casual employee has to be contrasted with a permanent and regular employee who has the right to expect work from the employer and to whom work must be offered regularly by the employer.

A casual employee is one employed by chance on no contract to employ. He will be offered employment as and when work is available. An employer cannot expect a casual employee to arrive for work continuously. He can report for work as and when he so desires. He cannot as of right expect work from the employer.
Seasonal employment

This is a form of employment where an employer engages employees during a particular season during the year, for example, those employed in the Tourist industry during the tourist season. At the end of the season the employer is allowed to dispense with the services of the employee.

In seasonal employment generally the employer engages the workman for the next seasons. But, in law he is not obliged to re-employ such workman