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SC upholds termination of SriLankan Airlines senior flight steward for sexual misconduct
View(s):Says as a state-owned enterprise, the airline must adopt a zero-tolerance policy towards any form of sexual harassment
The Supreme Court this week set aside a judgment of the Negombo High Court and a Labour Tribunal and upheld the termination of services of a male SriLankan Airlines senior flight steward after finding him responsible for grave misconduct in the sexual harassment of a female cabin crew member.
A three-judge bench headed by Justice Janak de Silva took up an appeal by SriLankan Airlines against the decision of the Negombo High Court and the Labour Tribunal which had said the dismissal of the steward was bad in law.
As a State-owned enterprise, SriLankan Airlines must adopt a zero-tolerance policy towards any form of sexual harassment, Justice de Silva said, with Justices P. Padman Surasena and Mahinda Samayawardhena agreeing.
“Where any employee is found guilty of such sexual harassment, even for the first time, the Appellant is justified in terminating his or her services,” the Court held. “In my view, this applies to both the public and private sectors.”
The charges against the respondent pertained to his actions in March 2005 onboard a SriLankan Airlines flight from Colombo to London. He was accused of sexually harassing a flight stewardess, who is identified only as “X” in the judgment. He was found guilty in a disciplinary inquiry and terminated.
He subsequently applied to the Labour Tribunal, seeking reinstatement with back wages. In 2013, the Tribunal found that his termination was not just and equitable and ordered his reinstatement without back wages, subject to a year of probation.
SriLankan Airlines, then appealed to the Provincial High Court of the Western Province in Negombo, but the case was dismissed.
The SC judgment determined that the conduct of the respondent steward amounted to “grave misconduct”.
“It formed part of a revolting culture among some flight stewards at SriLankan Airlines,” it said. “There had been many oral complaints of sexual harassment during the period 2004-2005. In addition to the complaints, around 100-200 flight stewardesses had resigned during this period.”
“Later, the management of SriLankan Airlines had taken necessary steps to constitute a committee to further investigate these complaints,” the judgment said. “There it was observed that a majority of the complaints were directed against the Respondent which consisted of about 80 complaints.”
“It is important to observe that Article 11(1) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which Sri Lanka has signed and ratified without any reservation, requires States parties to take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on basis of equality of men and women, the same rights including the right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction,” the Supreme Court held.
“The CEDAW General Recommendation No. 19: Violence against Women, in its recommendation on Article 11, states that equality in employment can be seriously impaired when women are subjected to gender-specific violence, such as sexual harassment in the workplace,” it points out. “Sexual harassment includes such unwelcome sexually determined behaviour as physical contact and advances, sexually-coloured remarks, showing pornography and sexual demands, whether by words or actions.”
“Such conduct can be humiliating and may constitute a health and safety problem,” it states. “It is discriminatory when the woman has reasonable ground to believe that her objection would disadvantage her in connection with her employment, including recruitment or promotion, or when it creates a hostile working environment.”
“Article 14(1)(g) of the Constitution recognises that a citizen has the freedom to engage by himself or in association with others in any lawful occupation, profession, trade, business or enterprise,” the judgment affirms. “The fundamental right to engage in a lawful occupation, profession, trade, business or enterprise is dependent on the creation of an environment free from sexual harassment.”
“Article 4(d) of the Constitution requires the fundamental rights which are by the Constitution declared and recognized to be respected, secured and advanced by all the organs of government,” it held. “The Appellant is a state-owned enterprise and hence bound by this positive obligation.”
Attorney-at-law Manoli Jinadasa appeared for appellant SriLanka Airlines and T. I Sapukotanage for the respondent flight steward.
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