Category: Case Comment

Period of time to dismiss a worker for misconduct (Summary of cassation decisions)

Introduction

According to Ethiopian labour law, an employer loses his right to dismiss a worker irrespective of a valid ground of dismissal, if he fails to make a decision to terminate the employment contract within 30 working days. The time starts to run from the  date the employer knows the ground for the termination. (Article 27(3) of the labour proclamation 377/2003)

The following is a brief summary of Cassation decisions regarding the application an interpretation Article 27(3.

The meaning of working days

Applicant Ethio-Djibouti Railway

Respondent Teshome Kuma

Cassation File Number 36377

Date: Hidar 2, 2001 E.C.

In the Federal First Instance Court, where the case was first heard, the respondent claimed reinstatement and 6 months back pay alleging that his contract of employment was terminated unlawfully by the Applicant. However, the applicant employer challenged the claim stating that termination was lawful as it was due to an unlawful act committed by the applicant worker.

The Federal First Instance Court found the termination unlawful on procedural ground without investigating the merit of the case. The Court ruled that the employer (Applicant) has failed to take an action of dismissal within one month as required by the labour proclamation. For this reason, judgment was given in favour of the respondent The court awarded him six months back pay salary and reinstatement.

Applicant lodged an appeal against this decision to the Federal High Court, but it was rejected.

Lastly, the applicant submitted his application to the Federal Supreme Court, Cassation division for review of the lower courts on ground of fundamental error of law.

The cassation division examined the legal issue involved in the case by interpreting article 27 sub 3 of the labour proclamation No.377/2003. Both the federal first instance and high court misread the article in determining the period of time to take dismissal action by the employer. Rather than examining whether 30 working days have passed from the date the employer knew the ground for the termination, they simply counted 30 days to reach at a conclusion.

This was indicated by the cassation division as a manifest error. Accordingly, the case was re-examined based on the facts affirmed in the lower courts in order to determine whether 30 working days have passed. As stated in the decision, the worker allegedly committed fault on Meskerem 24 and 25 1999 E.C. and his contract of employment contract was terminate on Tikimet  25 1999 E.C.  From Meskerem 25 to Tikimet 25 there are four Sundays and assuming that Sunday is not a working day, there are only 24 working days during this time. Based on this calculation, the court reasoned, 30 working days have not passed, which makes the action of the employer valid for the purpose of time requirement.

Consequently, the decisions of the lower courts was reversed by the cassation division and the case was remanded to the federal first instance court to give its own decision on the merit i.e. the legality of termination of employment.

Continue reading “Period of time to dismiss a worker for misconduct (Summary of cassation decisions)”

New Federal Supreme Court Cassation Decisions (Volume 11 & 12)

Cassation Decisions volume 11

 

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Cassation Decisons Volume 12

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It took almost a year for the Supreme Court to officially release its Cassation decisions  which are suppose to be binding on all lower courts in Ethiopia on similar cases requiring interpretation of the law. All these decisions, compiled in two volumes (volume 11 and 12) include decisions rendered in the previous year i.e. 2003 Ethiopian calender. Delay of Publication has been and is still continuing to be one of the major setbacks for the proper application of the rule of precedent in Ethiopia. It also raises some serious legal issues as the binding effect of a cassation decision not officially published is not clear.The Federal Courts Proclamation Re-amendment Proclamation No.454/2005, which makes Interpretation of a law by the Federal Supreme Court rendered by the cassation division with not less than five judges binding on federal as well as regional courts, simply imposes on the Federal Supreme Court a duty to publish decisions of the cassation division that contain binding interpretation of laws to all levels of courts and other relevant bodies, without indicating whether decisions are still binding before the time of publication.

Can a civil case be a ground of res judicata in a labour case?

Case Brief

Applicant- Ermias Mulugeta
Respondent- Bekelecha Transport Share Company
Cassation File Number- 39471
Date of judgement- Hamle 29 2001

Read the decision of the court (Amaharic)

Issue: Wether failure to prove fault of employee by the employer in a labour case is a ground of resjudicata if a civil action is brought by the same employeer against the same employee alleging fault of the employee?

Ruling and reasonig of the court

The Cassation bench affirmed the decision of lower courts. The court relied on its own previous decision (Cassation File Number 36710) regarding the issue raised in this case. Accordingly it concluded that the issue to be framed in unlawful dismissal case is totally different from a civil action brought by the employer claiming restitution or payment for loss of or damage to property. The labour court may have decided that the employee has not committed fault, when the fault at issue is ‘being responsible for loss of property’ of the employer. Such decision is not a ground of res judicata if an action against the employee is brought by the employer claiming payment of the price of the property.

HIGHER EDUCATION COST-SHARING COUNCIL OF MINISTERS REGULATION Number 91 of 2003

Brief note

Starting from 2003/04 academic year students enrolled in public universities were required to cover their costs of education. Such cost includes full costs related with boarding and lodging and minimum 15% of tuition related costs. This cost sharing regulation imposes a pre-condition on every student to enter a written contract agreement with the respective institution before he is allowed to pursue his education.

Even though, Article 4 of the regulation, states that the amount to be share shall be shall be revealed to the student,  this amount is likely to increase at the time of graduation. According to sub article 4 of article 4 the cost of education and training shall be revised at least every three years. Almost all the disciplines in the public universities require four years of study for graduation. A possibility of revision every three years is in effect giving a power to unilateral modify the contract as the regards the total costs require from the student.

The students once gradated will start making payment within six months after graduation if earning income or within a maximum of one year after graduation, in the form of graduate tax of at least 10% of the monthly income. He is expected to pay all of his costs within a maximum of 15 years.

According to article 6 ( 7) a  beneficiary [ Article 2 (5) defines beneficiary as a student at a public higher education institution pursuing higher education or training and who has entered into an obligation with the concerned institution for the future payment of the cost of his/her education or training and other services]  who decides to go abroad for more than six months before completing the payment of the cost required of him, shall be made to produce a guarantee for the payment of the outstanding amount. However, contrary to this explicit provision most universities refuse to give Degree and Transcript of the student and in some cases other relevant evidences (like proof of language of instruction) until final settlement of debt. However, this is not only contrary to the regulation, but also a manifest violation of the right to education enshrined in F.D.R.E. Constitution.

 

 

COUNCIL OF MINISTERS REGULATION NO. 91/2003

HIGHER EDUCATION COST-SHARING COUNCIL OF MINISTERS REGULATION

This regulation is issued by the Council of Ministers pursuant to Article 5 of the Definitions of Powers and Duties of the Executive Organs of the Federal Democratic Republic of Ethiopia Proclamation No. 4/1995 and the Higher Education Proclamation No. 351/2003.

1. Short Title

This Regulation may be cited as the “Higher Education Cost-Sharing Council of Ministers Regulation No. 91/2003”

2. Definitions
For the purposes of this Regulation:

1) “Ministry” and “Minister” means Ministry of Education and the Minister of Education, respectively.

2) “Institution” means a public higher learning institution in any region, in Addis Ababa or Dire Dawa offering a post-secondary education with a budget allocated from the Federal Government.

3) “Employer” means any government, private or non-governmental institution or international or regional organization  or person employing graduates of higher education institutions including self-employed graduate of the same,

4) “Person” means a physical person or any other legal person,

5) “Beneficiary” means a student at a public higher education institution pursuing higher education or training and who has entered into an obligation with the concerned institution for the future payment of the cost of his/her education or training and other services.’

6) “Cost-Sharing” means a scheme by which all beneficiaries of public higher education institutions and the government share the cost incurred for the purposes of education and other services.

7) “Graduate Tax” means a scheme by which an amount is deducted from income in the form of a tax to be paid by a beneficiary who has been obliged to share the costs of his higher education. Continue reading “HIGHER EDUCATION COST-SHARING COUNCIL OF MINISTERS REGULATION Number 91 of 2003”

Transfer of workers: Is it employer’s prerogative?

Applicant- Cheshire Foundation Ethiopia
Respondent- W/o Meseret Workagegnehu
Cassation File No. 38605
Date: Yekatit 19, 2001
Court- Federal Supereme Court Cassation Bench

Issue: Wether an employer can unilaterally change the place of work of the employee?

Ruling &reasoning: The decision of lower courts was reversed. The cassation bench said that “it is the prerogative of the employer to transfer the employee to another place of work and the employee has no valid ground to object to such order.”

read the decision (Amharic)

Do you agree that an employer has unlimited power to change the place of work of an employee? is that variation of employement contract? If it is variation, can an employement cantarct be varied by a unilateral act of the employer?

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