Tag Archives: Cassation

በስራ ላይ የሚደርስ አደጋ–የሰበር ውሳኔዎች ዳሰሳ


በስራ ላይ የሚደርስ አደጋ–የሰበር ውሳኔዎች ዳሰሳ
1. መግቢያ

በአሰሪና ሰራተኛ ግንኙነት ዋነኛ ከሚባሉት የአሰሪ ግዴታዎች ውስጥ አንዱ ከስራው ጋር በተያያዘ የሰራተኛውን ደህንነትና ጤንነት ለመጠበቅና ከአደጋ ለመከላከል የሚያስፈልጉትን እርምጃዎች ሁሉ መውሰድ ይገኝበታል፡፡ ግዴታው በአዋጁ አንቀጽ 12(4) ላይ በጥቅሉ የተቀመጠ ሲሆን በአንቀጽ 92 ላይ ደግሞ ግዴታዎቹ በዝርዝር ተቀምጠው ይገኛሉ፡፡ በእርግጥ ከሙያ ደህንነት፤ ጤንነትና የስራ አካባቢ ጋር በተያያዘ ግዴታ የተጣለው በአሰሪው ላይ ብቻ ሳይሆን በሰራተኛውም ላይ ጭምር ነው፡፡ (አዋጅ ቁ. 377/96 አንቀጽ 13(4) (5) እና አንቀጽ 93)
ሰራተኛው ሆነ አሰሪው በህግ የተጣለባቸውን ግዴታ ቢወጡም ያልተጠበቀ አደጋ መድረሱ አይቀሬ ነው፡፡ በስራ ላይ በሚደርስ አደጋ ሰራተኛው ጉዳት ሲደርስበት የአሰሪና ሰራተኛ ህጉ ጉዳት የደረሰበት ሰራተኛ እንደ ጉዳቱ መጠን እንዲካስ ከሞተም በስሩ የነበሩ ጥገኞች ክፍያ እንዲከፈላቸው በአሰሪው ላይ ግዴታ ይጥላል፡፡
ህጉ በፍርድ ቤቶች ተፈጻሚ ሲደረግ በስራ ላይ የሚደርስ አደጋ ትርጉምና የተፈጻሚነቱ ወሰን፤ የአሰሪው ኃላፊነት፤ የአካል ጉዳት ምንነትና መጠን፤ የጉዳት መጠን ደረጃ እና የካሳ ስሌት በተመለከተ የህግ ትርጉም የሚሹ ጥያቄዎች ይነሳሉ፡፡ ይህ ዳሰሳም የሰበር ችሎት በስራ ላይ የሚደርስ አደጋን በተመለከተ በምን መልኩ የህግ ትርጉም እንደሰጠ የሚቃኝ ይሆናል፡፡ Continue reading →

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Federal Supreme Court Cassation Decisions Volume 16 Table of Contents


Cassation volume 16 Table of Contents_Page1The Federal Supreme Court has released the table of contents to volume 16.

Click the links below to download the files.

Federal Supreme Court Cassation Decisions Volume 16 Table of Contents  DOWNLOAD

Federal Supreme Court Cassation Decisions Volume 1- 16 Table of Contents DOWNLOAD

Those of you who have not read the previous notice by Ethiopian Legal Brief about a new on-line service in which you will be able to get immediate access to proclamations and regulations, please click HERE to get full information.

ወደ ስራ በመመለስ ፋንታ ካሳ ከፍሎ ማሰናበት፡ የሰበር ውሳኔዎች ዳሰሳ


ወደ ስራ በመመለስ ፋንታ ካሳ ከፍሎ ማሰናበት፡ የሰበር ውሳኔዎች ዳሰሳ

1.  መግቢያ

በአሰሪና ሰራተኛ አዋጅ ቁጥር 377/96 አንቀጽ 43(3) እንደተደነገገው ከህግ ውጭ የስራ ውሉ የተቋረጠበት ሰራተኛ ወደ ስራ የመመለስ ጥያቄ በግልጽ ቢያቀርብም ጉዳዩን የሚያየው የስራ ክርክሮችን የሚወስነው አካል ጥያቄውን ባለመቀበል ካሳ ተከፍሎት እንዲሰናበት ማዘዝ ይችላል፡፡ ይህም የሚሆነው ከስራ ግንኙነቱ ጠባይ የተነሳ የስራ ግንኙነቱ ቢቀጥል ከፍተኛ ችግር ያስከትላል ብሎ ከታመነ ነው፡፡ ትዕዛዙ ዋናው ክርክር በሚታይበት ጊዜ ብቻ ሳይሆን በአፈጻጸም ወቅትም ሊሰጥ ይችላል፡፡

ለመሆኑ ይህን መሰሉ ትዕዛዝ ለመስጠት አሳማኝ የሆኑት ሁኔታዎች ምንድናቸው? በሰበር ችሎት በኩል ያለው አቋምስ ምን ይመስላል? እነዚህን ጥያቄዎች የሰበር ውሳኔዎችን መሰረት በማደረግ በአጭሩ እንዳስሳለን፡፡

2.  መለኪያው

የአሰሪና ሰራተኛ አዋጅ ቁጥር 377/96 አንቀጽ 43(3) ድንጋጌ ሊተረጎም የሚገባው “በአንድ በኩል የሰራተኛውን የስራ ዋስትና በሌላ በኩል ደግሞ የኢንዱስትሪን ሰላም በማመዛዘን ሊሆን ይገባዋል፡፡ በመሆኑም ሰራተኛው ወደ ስራ መመለሱ የአሰሪውን ስራ በከፍተኛ ደረጃ ሊጎዳ የሚችል መሆኑ ካልተረጋገጠ በቀር ሰራተኛው በሆነው ባልሆነው ከስራ እንዲሰናበት ማድረጉ ተገቢ አይሆንም” (አዲስ አበባ ሂልተን ሆቴል እና አቶ ዘላለም መንግስቱ ሰ/መ/ቁ 55189 ሰኔ 30 ቀን 2002 ዓ.ም. ቅጽ 9)

ሰበር ችሎት በሌላ ውሳኔው (የአብጃታ ሶዳ አሽ አክሲዮን ማህበር እና ወ/ሮ ማርታ አበበ ሰ/መ/ቁ. 82336 ጥር 20 ቀን 2005 ዓ.ም. ቅጽ 14) ላይ እንዳመለከተው የድንጋጌው መንፈስ ከአሰሪና ሰራተኛ ህግ አጠቃላይ ዓላማና በኢ.ፌ.ዲ.ሪ. ህገ-መንግስት አንቀጽ 42 ስር ከተቀመጠው ድንጋጌ አንጻር ተዳምሮ ሲታይ እንደሚያስገነዝበው አንቀጽ 43(3) ተግባራዊ ሲደረግ የስራ ዋስትና ዋጋ በማያጣበት አግባብ ሊከናወን ይገባዋል፡፡

መለኪያውን ከማስቀመጥ ባሻገር የስራ ክርክሮችን የሚወስነው አካል ድንጋጌውን ተፈጻሚ ሲያደርግ የስራ ግንኙነቱ ከፍተኛ ችግር ውስጥ ይወድቃል ብሎ ማመኑ ብቻ በቂ አይደለም፡፡ ከዚህ ባለፈ የስራ ግንኙነቱ ከፍተኛ ችግር ውስጥ ይወድቃል ብሎ ለማመን የሚያስችል በቂ ምክንያት ሊኖረው ይገባል፡፡ (የጎሽና እርግብ መለስተኛና አነስተኛ የሕዝብ ማመላለሻ ባለንብረቶች ማህበር እና አቶ ተሰማ ኃይሉ ሰ/መ/ቁ. 49931 ሚያዝያ 21 ቀን 2002 ዓ.ም. ቅጽ 9) በችሎቱ ውሳኔ ላይ እንደተመለከተው “ያለ በቂ ማስረጃና ምክንያት አሰሪው የስራ ግንኙነቱ ችግር ላይ ሊወድቅ ይችላል ብሎ ስለተከራከረ ብቻ ድንጋጌውን ተግባራዊ ማድረግ የስራ ዋስትናን ጥያቄ ውስጥ የሚያስገባ ይሆናል፡፡” Continue reading →

Legal effect of absence of termination notice: Summary of Cassation decisions


Legal effect of absence of termination notice: Summary of Cassation decisions

 

Introduction

An employment contract irrespective of its duration may be legally terminated with notice provided one of the grounds in article 28 of the labour proclamation is present. Merely giving notice in the absence of a valid ground does not make the termination lawful. This being the case, what will be the legal effect of termination with a valid ground (Article 28) but without notice? The common understanding is that the legal effect of absence of notice of termination is only payment in lieu of notice, but does not make the termination unlawful. The cassation bench has also affirmed such common understanding in its decision. (Altabe College Vs. Seid Mohammed Cassation File Number 39580 Ginbot 18-2001 E.C.) As a result a worker will not be entitled to reinstatement or compensation and severance pay.

However, a question may be raised when one reads article 41 of the labour proclamation. Article 41 of labour proclamation No.377/96:

“Where an employer or a worker fails to comply with the requirements laid down in this Proclamation or other relevant law regarding termination, the termination shall be unlawful.” Continue reading →

Federal Supreme Court Cassation Decisions Volume 15


Cassation Volume 15_Page1

Federal Supreme Court Cassation Decisions Volume 15 is now officially released.

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Federal Supreme Court Cassation Decisions Volume 14


Cassation Decisions volume 14_Page1Finally, The Federal Supreme Court has released Volume 14 of Cassation Decisions.

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Federal Supreme Court Cassation Decisions Volume 14   DOWNLOAD

Index to Casation Decisions Volume 14


The Federal Supreme Court has released the index to volume 14 of cassation decisions.  It has also updated the index to all volumes from volume 1 to 14.

Click the links below to download both files.

DOWNLOAD volume 14 Table of contents

DOWNLOAD volume 1-14 Table of contents

Cassation Decisions Volume 13


Cassation Decisions Volume 13

Cassation Decisions Volume 13

Federal Supereme Court Cassation Decisions Volume 13 is now officially released. Click HERE to download.

I have added bookmarks and links for easy navigation.

Index to Cassation Decisions Volume 13


Index to Cassation Decisions Volume 13

Most of you are asking and waiting for the release of Cassation decisions volume 13 and 14 and I don’t have any good news. I frequently check their website. Still volume 12 is the last volume available. But I think, the next two volumes will be made available to the public soon. The index to Volume 13 is officially released. You can download it here or from the official web page of the Federal Supreme Court.

I have added a bookmark and a link to the table of contents, so that you can easily browse the contents of the document.

DOWNLOAD  Index to Cassation Decisions Volume 13

Consequential loss in Insurance Cases: Review of Cassation Decisions (Part I)


Consequential loss in Insurance Cases: Review of Cassation Decisions

One of the basic principles of insurance applicable to property insurance is the principle of indemnity. This underlying principle provides that compensation payable to the insured upon occurrence of loss to his property could not exceed the actual value of the property at the time of loss. This principle is clearly stated in article 678 of the commercial code. However, the clarity of the provision didn’t save courts from giving contradictory decisions in determining the amount of compensation to be paid to the insured. When a dispute as to the amount of compensation arises, some courts took a position that the amount payable should be equal to the maximum amount specified in the insurance policy. In order to justify their position courts usually rely on article 665 of the commercial code which imposes an obligation on the insurer to pay “the agreed sum” within the time specified in the policy or when the risk insured against occurs or at the time specified in the policy. In principle a court does not make a mistake if interprets “the agreed sum” as “the amount stated in the insurance policy.” It becomes a mistake if a court applies it to property insurance or insurance of objects.

Article 665 of the code is found in the general provisions applicable to all forms of insurance contract. Hence, the relevance of the provision is limited to determining the time of making payment. As regards the amount of compensation it could only make sense if it is made applicable to life insurance policies. As the value of a human body or life could not be valued, the amount to be paid at the time of materialization of risk is left to the agreement of the parties. The principle of indemnity does not apply to such type of insurance. In property insurance cases article 678 of the code always prevails over the general insurance provisions.

Consequential loss and principle of indemnity

One of the challenges in applying the principle of indemnity in insurance cases is the issue of consequential loss. The commercial code does not make any reference to consequential loss and whether the insurer has an obligation to make payment for such type loss in the absence of a specific policy to this effect. Consequential loss in short refers to lost of profits  and  income resulting  from  harm  to  or  destruction  of  one’s  insured property. It is an indirect loss since it is not a result of a direct act but a loss incurred due to the consequences or results of the act. If a commercial vehicle insured against collision is totally destroyed the owner in addition to the direct loss of his property incurs an indirect loss of income as a consequence of the loss of his vehicle. This will be usually loss of income from the time of destruction of the vehicle until he is paid compensation by the insurer. Now the question is: is it possible to claim for such type of consequential loss under Ethiopian insurance law?

In this regard the position of the Federal Supreme Court Cassation Bench is that the insurer has an obligation to compensate the insured for consequential loss. The absence of any clear provision in the insurance policy providing coverage for consequential loss is not a valid ground to relieve the insurer from his liability. What if there is an exclusion clause in the policy? According to the cassation bench, the insurer’s obligation is still effective even though the policy clearly excludes compensation for consequential loss.

However, this firm position of the cassation bench could not be taken as a full answer to the question raised above. Depending on the nature of the claim by the insured ‘consequential loss’ may refer to loss caused as a result of an act (harm to  or  destruction  of  one’s  insured property) or it may also be similarly used to refer to loss caused as a result of an act of a party (i.e. an act of the insured.) An act of the insurer causes consequential loss on the insured when there is unjustified delay in making payment upon occurrence of loss.

According to article 665 of the commercial code compensation should be paid within the time specified in the policy or when the risk insured against occurs or at the time specified in the policy. If the policy does not provide such time, then payment should be effected immediately (Article 1756 of the Civil Code.) Unjustified delay constitutes non-performance of contract entitling the other party to claim damage caused to him by non-performance. (Article 1771 sub article 2 of the Civil Code)

It is only in this sense that the decisions of the cassation bench could be understood and analyzed. This is important because in most of the decisions no clear distinction is made between consequential los as a result of the act and as a result of the insurer. The absence of clear distinction is not totally the fault of the bench. The parties are also partially responsible for the confusion. When one looks in to the argument of the insured and the insurer, they tend to be at variance in understanding the underlying issue and even in the usage of terminology. Usually the insured claims “compensation for the loss of income” and the insurer challenges such claim on the ground of the absence and/or exclusion of consequential loss in the insurance policy. Yes it is true that a party is not entitled to compensation for loss of income as a result of loss of his insured property. However, what the insured is really demanding by “consequential loss” or “compensation for the loss of income” is payment of compensation for delay of non-performance of the insurance contract. This usually happens when the insurance company delays payment or refuses to compensate the insured upon occurrence of loss.

Consequential Loss in Liability Insurance Cases

Case One

Applicant  Ethiopian Insurance Company

Respondents 1.Ato Demesie Werekeneh

2. Genesis Farms Ethiopia Pvt.

Cassation File Number 27565

Date: Hidar 24-2000 E.C.

Court: Federal Supreme Court Cassation Bench

In this case, a vehicle belonging to 2nd respondent caused a total damage on 1st respondent’s vehicle. Applicant became a party to the case as it has insured 2nd respondent’s vehicle. The value of the 1st respondent’s vehicle was estimated to be 80,000 br. (Eighty thousand birr). In addition to this amount 1st respondent also claimed 18, 300 br. (Eighteen thousand three hundred birr) lost income for 211 days.

Applicant challenged the claim for lost income on the following two grounds:

  1. 1st respondent should not be compensated twice for a single loss, as compensation for the loss of income will have the effect of double compensation.
  2. 1st respondent could not claim compensation for the loss of income caused as a result of damage to his property, without having consequential loss insurance policy.

The cassation bench, responding to applicant’s 1st argument stated that once 2nd respondent is found liable for causing total damage to 1st respondent’s vehicle there is no reason it could not be liable for the loss of income to 1st  respondent as the result of the damage. As regards the second argument the bench said:

“Applicant has not argued (or submitted similar argument) that the insurance policy it issued to respondents excludes consequential loss”

In other words, it held a position that consequential loss is always payable unless the insurance company shows to the satisfaction of the court that it is excluded by the insurance policy.

The cassation bench may not be criticized for its analysis of consequential loss but, for its failure to relate it to the maximum liability of the insurance company. Applicant was made a party to the case because it insured the liability of 2nd respondent. Since this is a liability insurance case the applicable provisions are articles 685 to 688 and of the Commercial Code and the general provisions of insurance (articles 654 to 674 of the Code.) Irrespective of the type of insurance article 665 sub article 2 of the code states that the insurer’s liability shall not exceed the amount specified in the policy.

If the maximum liability of applicant in the insurance policy is 80,000 br. (Eighty thousand birr), then that is the only amount it is obliged to pay. Even assuming that the policy limit is above 80,000 br. (Eighty thousand birr) the insurance company is still not liable to consequential loss. In liability insurance case, the nature and extent of liability of the insurer is determined based on the terms and conditions of the policy. If the policy only provides coverage against the liability of insured as a result of direct damage to the property of third parties, then there is no contractual or legal ground to make the insurer liable for consequential loss. The bench found 2nd respondent liable for the loss of income caused to 1st respondent. However, how this liability is transferred to the applicant insurance company is not clear.

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