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.

Applicant  Mohammed bdella

Respondent Ethio-Djibouti Railway

Cassation File Number 31857

Date: Megabit 17 2000 E.C.

The employer (respondent) knew the existence of ground of termination on February 26 2005 (Yekatit 1997 E.C.) and dismissed the worker (Applicant) on April 8 2005

Based on these facts, which are affirmed by both parties, the federal first instance court ruled that dismissal is automatically unlawful as it was not taken within the 30 working days as required by article 27(3) of the labour proclamation. On appeal the federal high court reached at a different conclusion and reversed the lower court’s decision. The conclusion was on the erroneous assumption that Saturday (in addition to Sunday) is a working day. This error was rectified by the Federal Supreme Court Cassation divison. According to the calculation applied by the cassation division, the weekly working hours in the respondent’s organization is 48 hours. A worker will be able to work 8 hours a day and 48 hours a week, if he is working 6 days a week. This makes Saturday, a working day.

From February 26 2005 to April 8 2005 there are totally 42 days out of which 12 are Saturday and Sunday and one day was a public holiday. As a result, the employer had 35 working days to terminate applicant’s contract of employment. Since applicant was dismissed on April 8 2005, the termination is clearly after the lapse of 30 working days. The cassation division reversed the decision of the federal court and affirmed the decision of the first instance court.

Applicant Addis Ababa Water and Sewage Authority

Respondent Ato Admas Demesachew

Cassation File Number 41767

Date: Hidar 8-2002 E.C.

Based on the summary of facts by the Cassation division, the employer knew the existence of ground of termination on Nehasie 16-1999 E.C. The termination letter was given to the worker (respondent) on Meskrem 21-2000 E.C. According to the calculation of the federal first instance and federal high court, 30 working days have passed and the termination is automatically unlawful.

 The federal Supreme Court cassation division differed on the calculation of the lower courts and found that 30 working days have not passed. The cassation division while calculating the time stated that from Nehasie 16-1999 E.C to Pagume 06-1999 E.C. there are 15 working days and there are 13 working days from Meskrem 1-2000 E.C to Meskrem 21-2000 E.C. Therefore, the total working days are 28, making the action of the employer valid as regards the time requirement.

Both decisions of the lower courts were reversed.     However, unlike other similar cases, the cassation division didn’t remand the case back to the federal first court to give its own decision on the merit of the case. On the contrary, it ruled that termination is lawful as the applicant admitted ground of termination stated by the respondent.

Determining time of Knowledge

Applicant Ethiopian Postal Service

Respondent Ato Tilahun Kuma

Cassation File Number 53358

Date: Sene 18-2002 E.C.

The case is related to the meaning of ‘time of knowledge’ in determining the lapse of 30 working days. The respondent was dismissed after his alleged fault was examined by a disciplinary committee. The cassation division reasoned that the employer is considered to have known the commission of fault by the worker after the investigation by its own disciplinary committee is completed. Once, the fault was investigated and proved by the disciplinary committee, the applicant terminated respondent’s employment contract.

Unlike other similar cases, there were no specific dates mentioned in the decision of the cassation division and the reasoning lacks clarity. The time of decision by the disciplinary committee and the time of termination of employment contract are not specified. However, the cassation division reasoned that since ‘it has not been said that 30 working days have passed since fault was proved by the disciplinary committee’ the employment contract is terminated within 30 working days. Based on this reasoning it reversed the decisions of the federal first instance and federal high courts.

Applicant Guder Agro Industry Plc.

Respondent Ato Belete Chala

Cassation File Number 41767

Date: Hidar 7 2002 E.C.

The issue in this case is similar with Cassation File Number 53358 (Applicant Ethiopian Postal Service vs. Respondent Ato Tilahun Kuma.) However, the cassation division deviated from its own earlier decision without making any express statement to this effect.

As the facts of the case indicate, the employment contract of the respondent was terminated on Megabit 4-2000 E.C. The alleged fault of respondent was collision caused by negligent driving. The traffic report about the accident was issued on Yekatit 26-2000 E.C. Respondent argued that the time of knowledge should start from the day it obtained the traffic report i.e. Yekatit 26-2000 E.C. and for this reason 30 working days do not lapse from this day upto the time of termination which is Megabit 4-2000 E.C.

However, the cassation division rejected respondent’s argument, stating that the time starts to run from the date of accident not the date of issuance of traffic report. However, it failed to indicate how the employer will be able to know commission of fault on the day of accident in the absence of a traffic report.

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11 responses

  1. BERHANU TADESSE | Reply

    helpful

    Like

  2. Yonas Megbiyaw | Reply

    Abrish how do you do? i hope in the affirmative. it is my first time commenting you. you are doing an amazing thing helping or awakening people in the legal profession. you have no parallel. yegan mebrat alemehon des yilal
    Thank you million times Abrish
    keep it up

    Like

  3. just interesting post.keep it up!

    Like

  4. muluneh woldetsadik | Reply

    thank u abrish! I enjoyed in ur teaching method while I was in HU ’cause u present in a simpile way.u’r still doing that

    Like

  5. this blog is a very inspirational work it will help to the development to our legal treand it is very healpfull and iwould like to thank u for it. i have a question about the 30 day period when the law says the right to terminate will be barrde dose it include the right of the employer to sue the the employee on the same ground in court inother words dose the 30 day period include the right to sue or is it only for termination and if so how can an employer sue on a ground that was barrde by limitation?thank you

    Like

  6. one way of developing our jurisprudence is making such contribution/ comments and/ critics/ i liked your post and the courts exclusion of Sunday from the working day is somewhat surprising coz the employer pays salary for that date counting as one of the working day but excluding Sunday and/or Saturday from the working day for the sack of delivering justice is not sound and it is more in favor of the employer. Any way it needs to look into other jurisdiction experience.

    Like

  7. THANK YOU!

    Like

  8. the case is very important. but what could be the reason for such apparent deviation?

    Like

  9. it is very intersting presentation and good teaching material for those who are itersted to know about the labour low.

    Like

  10. An important thing to protect workers right is not calculation of period rather i would suggest genuine evaluation of the alleged grounds of dismissal. Unless these undertaking will be play station 4 dictators instead of being work place of workers.

    Like

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