ወደ ስራ በመመለስ ፋንታ ካሳ ከፍሎ ማሰናበት፡ የሰበር ውሳኔዎች ዳሰሳ
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፡፡
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
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 is now officially released.
Click the link below to download.
Federal Supreme Court Cassation Decisions Volume 14 DOWNLOAD
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
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.
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
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:
- 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.
- 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.
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.
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.
- Mulugeta Getu, Law Schools’ Access to Legislation and Decisions: Current Trends and Suggested Outlets (chilot.me)