Federal Supreme Court Cassation Decisions Volume 15 is now officially released.
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- Ermias Mulugeta
Respondent- Bekelecha Transport Share Company
Cassation File Number- 39471
Date of judgement- Hamle 29 2001
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.
PROCLAMATION NO. 104/1998
PRIVATE EMPLOYMENT AGENCY PROCLAMATION
WHEREAS, The participation of individuals and private entities in the employment services has become necessary;
WHEREAS, it has particularly become necessary to protect the rights, safety and dignity of Ethiopians employed and sent abroad;
NOW, THEREFORE, in accordance with Article 55(1) of the Constitution of the Federal Democratic Republic of Ethiopia, it is hereby proclaimed as follows:
1. Short Title
This Proclamation may be cited as the “Private Employment Agency Proclamation No. 104/1998″.
In this Proclamation, unless the context otherwise requires;
1) “Private Employment Agency” means any person, independent of government bodies, which performs one or two of the following employment services without directly or indirectly receiving payments from the worker;
(a) services of matching offers of and application for local employment without being a party to the employment contract;
(b) services of making a worker available locally or abroad to a third party by concluding a contract of employment with such a worker.
2) “License” means a certificate of competence issued by the competent authority to a private employment agency enabling the agency to engage in employment service activities;
3) “Worker” shall have the meaning as defined in the Labour Proclamation No. 42/1993.
4) “Competent Authority” means the Ministry or a Regional Authority responsible for the implementation of labour laws in the Region;
5) “Minister” or “Ministry” means the Minister or Ministry of Labour and Social Affairs respectively.
6) “Person” means any natural or juridical person.
7) Provisions of this proclamation set out in the masculine gender shall also apply to the feminine gender.
3. Scope of Application
1) Notwithstanding the provisions of Article 3(2)(d) of the Labour Proclamation No. 42/1993, Proclamation No. 42/1993 shall, for the purpose of this proclamation, be applicable to an Ethiopian employed to work abroad for personal services of non-profit making purposes.
2) Without prejudice to Article 172 of the Labour Proclamation No. 42/1993, any Ethiopian may be allowed to go and work abroad only through the private employment agency unless the Minister permits the direct recruitment by an employer.
3) Any labour dispute and other dispute arising under Article 15 of this Proclamation between the agency providing a service specified in Article 3(1)(b) of this Proclamation and the worker may be settled in accordance with Proclamation No. 42/1993.
4) This Proclamation shall not relieve any private employment agency of its obligations imposed by other laws.
4. Requirement of License
Any person who wishes to operate a private employment agency shall have to obtain a license from the following authorities;
1) without prejudice to Sub-Article 3 of this Article, from the Regional Authority responsible for the implementation of labour laws, if the employment service is confined within that region;
2) from the Ministry if the employment service is to be rendered in two or more regions;
3) from the Ministry if the employment service is to hire and send abroad an Ethiopian worker to a third party.
5. Condition required to obtain a license
Any person who applies to operate a private employment agency in accordance with this Proclamation shall fulfill the following:
1) present a document that shows he has a business registration for the operation of a private employment service;
2) if he is providing a service of hiring and sending a worker abroad in accordance with this proclamation to present a document that shows he has fulfilled the obligations of guarantee specified in Article 14 of this Proclamation;
3) pay a license fee to the competent authority the amount of which shall be determined by the regulation issued in accordance with this Proclamation;
4) present a chart that shows the organizational structure and the list of members involved in the employment service activities;
5) notify the address of his office and of his representative;
6) present other relevant documents as may be required by the competent authority.
6. Issuance of License
The competent authority shall, upon the fulfillment of the required conditions to obtain a license under this Proclamation, issue a license to the applicant.
A person punished for his engagement in an illegal employment activity shall not qualify for a license to operate a private employment agency.
8. Validity of License
A license issued in accordance with this Proclamation shall be valid for two years subject to renewal every year.
9. Opening of Office
1) Any private employment agency shall open an office for the operation of its activities.
2) A private employment agency which hires and sends Ethiopians abroad for work shall have a branch office or a representative in the country where he sends the worker.
10. Displaying of License
Any private employment agency shall display the license issued to him in accordance with this Proclamation in his office visible to other people.
11. Transfer of Office
Any private employment agency shall notify the competent authority prior to transferring his office to another place.
12. Obligation of a Private Employment Agency
1) In addition to the obligations specified in this proclamation and other laws, a private employment agency shall have the following obligations:
(a) to prepare and submit for approval to the competent authority a procedure regarding the recruitment and registration of job-seekers;
(b) to pay the required fee for issuance, renewal and replacement of the license determined by the regulation issued in accordance with this Proclamation:
(c) notify the competent authority prior to closing his office;
(d) to submit the contract of employment to the competent authority for approval and registration of a copy thereof if the agency provides the service specified in Article 2(1)(b) of this Proclamation.
2) In addition to the obligations provided for in sub-Article (1) of this Article, a private employment agency which sends a worker for work abroad shall have the following obligations:
(a) to submit a legal document establishing a branch office or appointing a representative abroad in accordance with Article 9(2) of this Proclamation and notify the address of same;
(b) provide the necessary orientation to the worker with regard to the work and the country of his employment before the contract of employment is signed;
(c) where the worker wishes a full or partial remittance of his wage to his country, to facilitate same in accordance with the laws of the country of employment;
(d) to submit a report to the Ministry annually or as may be required regarding the situation of the worker in the country of employment;
(e) to respect the moral and culture of the society while performing the activity;
(e) to respect the morel and culture of the society while performing the activity;
(f) to submit for approval to the Ministry prior to extending or modifying the contract of employment and notify the Ministry upon termination of the contract;
(g) upon termination of the contract of employment or whenever the worker so requests, to provide the worker, free of charge, with a certificate stating the type of work he performed, the length of service and the wage he was earning;
(h) to keep a register containing the name, age, educational level, qualification, type of work, position, the amount of wage, duration of the validity of the contract and other particulars which may be required by the Ministry and notify same to the Ministry as may be required;
(i) notify to the Ethiopian Embassy nearest to the country of employment of the workers sent abroad and cause their registration by same Embassy.
13. Suspension or Cancellation of License
Without prejudice to Article 18(2) and (3) of this Proclamation, the competent authority may suspend or cancel a license on the following grounds:
1) where it is found that the license has been issued to the private employment agency based on deceitful document;
2) where it is found that the private employment agency or his representative has received payment in cash or in kind from the worker; or
3) where it is found that the private employment agency has violated other provisions of this Proclamation or regulations and directives issued in accordance wit this Proclamation as well as other laws.
14. Requirement of Guarantee
1) Any private employment agency which sends a worker abroad for work in accordance with this Proclamation shall, for the purpose of protecting the rights of the worker, deposits the following amount of money in cash or its equivalent in a confirmed and irrevocable bond from a recognized financial institutions;
(a) for up to five hundred workers 30,000 US dollar or its equivalent in Ethiopian birr;
(b) for five hundred and one to one thousand workers 40,000 US dollar or its equivalent in Ethiopian birr;
(c) for above one thousand and one workers 50,000 US dollar or its equivalent Ethiopian in Birr.
2) Where the guarantee fund deposited in accordance with sub- Article (1) of this Article is used up or reduced for the protection and enforcement of the rights of the worker the private employment agency shall replenish the fund within ten days.
3) The Ministry may release the guarantee fund within 3 months upon the termination of the employment contract and the fulfillment of the legal rights of the worker sent abroad by the private employment agency unless a claim connected with the worker’s rights and benefits is pending before an authorized body empowered to adjudicate such claim.
15. Protection of the Worker’s Right
1) A contract of employment concluded between the private employment agency which sends workers abroad and a worker shall fulfill the minimum working conditions laid down in the laws of Ethiopian and shall in no circumstance be less favorable to an Ethiopian than the rights and benefits of those who work in a similar type and level of work in the country of employment.
2) The Private employment agency shall, in addition to the rights and benefits provided for in sub-Article (1) of this Article, be responsible to ensure the rights, safety and dignity of the worker.
1) The competent authority shall have the power to enter the office of any private employment agency during any working hour without prior notice, to examine or inquire relevant documents.
2) The competent authority shall be responsible to supervise and control that the rights of the worker, employed by the agency which provides a service mentioned in Article 2(1)(b) of this Proclamation, are not infringed where the license is returned before the date of its expiry.
The private employment agency and the third party shall jointly and severally be responsible or liable for violation of the contract of employment concluded with the worker to provide the service mentioned in Article 2(1)(b) of this Proclamation.
Unless the provisions of the Penal Code provides more severe penalties, any person:
1) without having obtained a license in accordance with this Proclamation:
(a) who performs employment services in Ethiopia, is punishable with imprisonment for a term of not less than three years and not exceeding five years and a fine Birr 10,000 (Ten thousand Birr).
(b) who sends an Ethiopian national abroad for work, is punishable with imprisonment for term of not less than five years and not exceeding ten years and a fine birr 25,000(twenty five thousand Birr).
2) Who violates this Proclamation and regulation and directives issued in accordance with this Proclamation apart from what are specified in Sub-Article(1) of this Article and without prejudice to Article 13 of this Proclamation, is punishable with imprisonment upto two years or a fine upto birr 10,000(Ten thousand Birr).
3) Where the human rights, and physical integrity of an Ethiopian sent abroad for work have been injured, the punishment mentioned in sub-Article (1)(b) of this Article may be increased from 5 to 20 years regorous imprisonment and a fine upto Birr 50,000(Fifty thousand Birr).
19. License Fees
The amount of fees required for a license issued in accordance with this Proclamation shall be determined by the regulations of the Council of Ministers.
Article 176 of the Labour proclamation No. 42/1993 is hereby deleted and replaced by the following new Article.
“No persons or entity shall perform employment services for consideration from a worker.”
21. Power to Issue Directives
The Minister may issue directives necessary for effective implementation of this Proclamation.
22. Effective Date
This Proclamation shall enter into force as of the 5th day of March, 1998.
Done at Addis Ababa, this 5th day of March, 1998.
PRESIDENT OF THE FEDERAL DEMOCRATIC
REPUBLIC OF ETHIOPIA
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.”
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?
WHEREAS, the negative perception of persons’ disablement in society is deep rooted that, it has adversely affected the right of persons with disability to employment;
WHEREAS, the existing legislation on the right of disabled persons to employment created, by providing for reservation of vacancies for disabled persons, an image whereby people with disabilities to be considered as incapable of performing jobs based on merit and failed to guarantee their right to reasonable accommodation and to provide for proper protection;
WHEREAS, it has become necessary to enact a new law that complies with the countries policy of equal employment opportunity, provides reasonable accommodation for people with disabilities to employment and lays down simple procedural rule that enable them to prove before any judicial organ discriminations encountered in employment;
NOW, THEREFORE, in accordance with Article 55 (1) and (3) of the Constitution of the Federal Democratic Republic of Ethiopia, it is hereby proclaimed as follows:
1. Short Title
This Proclamation may be cited as the “Right to Employment of Persons With Disability Proclamation No. 568/2008”.
In this Proclamation, unless the context requires otherwise:
1/ “Person with disability” means an individual whose equal employment opportunity is reduced as a result of his physical, mental or sensory impairments in relation with social, economic and cultural discrimination ;
2/ “Employment” means a relationship that exists between any person with disability and an employer, which includes recruitment, promotion, training, transfer and other conditions of work;
3/ “Employer” means any federal or regional government office or an undertaking governed by the Labor Proclamation;
4/ “Discrimination” means to accord different treatment in employment opportunity as a result of disability; provided, however, that any inherent requirement of the job or measures of affirmative actions may not be considered as discrimination;
5/“Reasonable accommodation” means an adjustment or accommodation with respect to equipment at the work place, requirement of the job, working hours, structure of the business and working environment with a view to accommodate persons with disabilities to employment;
6/ “Undue burden” means an action that entails considerable difficulty or expense on the employer in accommodating persons with disabilities when considered in light of the nature and cost of the adjustments, the size and structure of the business, the cost of its operations and the number and composition of its employees:
7/ “Court” means the Federal First Instance Court or regional High Court or federal or regional civil service administrative tribunal;
8/ “Unless the nature of the work dictates” means a job that could not be performed by a qualified person with disabilities even if reasonable accommodation is provided.
9/ provisions of this Proclamation set out in the masculine gender shall also apply to the feminine gender.
3. Scope of Application
This Proclamation shall be applicable to the Employment relationship between a qualified worker or job-seeker with disability and an employer.
4. Protection of the Right of Persons with Disab ility to Employment
1/ Unless the nature of the work dictates otherwise, a person with disability having the necessary qualification and scored more to that of other candidates shall have the right with out any discrimination:
a)to occupy a vacant post in any office or undertaking through recruitment, promotion, placement or transfer procedures; or
b) to participate in a training programme to be conducted either locally or abroad.
2/ Subject to the provision of Sub-Article (1) of this Article, where a person with disability acquires the necessary qualification and having equal or close score to that of other candidates, preference shall be given to the conditions provided for in Sub-Article 1 (a) and (b) of this Article.
3/ No selection criteria shall refer to disabilities of a candidate unless the nature of the work dictates otherwise.
4/ Any person with disability shall have the right to get the wage and other benefits of the position he occupies.
5. Prohibition of Discrimination
1/ Any law, practice, custom, attitude or other discriminatory situations that impair the equal opportunities of employment of a disabled person are illegal.
2/ Without prejudice to Sub-Article (1) of this Article, selection criteria which can impair the equal opportunity of disabled persons in recruitment, promotion, placement, transfer or other employment conditions shall be regarded as discriminatory acts.
3/ When a disabled person is not in a position to exercise his equal right of employment opportunity, as a result of absence of a reasonable accommodation, such an act shall be regarded as discrimination.
4/ Affirmative actions taken to create equal employment opportunity to persons with disabilities or exclusions dictated by the nature of the work may not be regarded as discrimination.
6. Responsibilities of Employers
1/ Any employer shall have the responsibility to:
a)take measures to provide appropriate working and training conditions and working and training materials for persons with disability;
b)take all reasonable accommodation and measures of affirmative action to women with disability taking into account their multiple burden that arise from their sex and disability;
c)shall assign an assistant to enable a person with disability to perform his work or follow his training;
d)protect women with disabilities from sexual violence that occur in work places and, without prejudice to other sanctions to be taken against the offender under the relevant laws, take administrative measures against the perpetrator of acts of violence.
2/ An employer shall be relieved from taking any measure as provided in Sub-Article (1)
(a) and (b) of this Article where it creates an undue burden to him; provided, however, that the assignment of an assistant for a person with disability shall, under no circumstance, constitute undue burden to an employer.
7. Burden of Proof
1/ Any person with disability who alleges that discrimination on the ground of his disability existed with respect to recruitment, promotion, placement, transfer or other conditions of employment may institute a suit to the competent court on the issue with out the requirement of the burden of proof.
2/ The defendant to a suit instituted pursuant to Sub-Article (1) of this Article shall be responsible to prove that there was no act of discrimination. the.
8. Responsibility of Employee with Disability
1/ Any employee with disability shall perform his duty with full responsibility.
2/ Where an employee with disability does not perform his duty appropriately or commits a fault, his disability shall not relive him from responsibility.
9. Implementation of the Proclamation
1/ The Council of Ministers may issue regulations necessary for the proper implementation of this Proclamation.
2/ Without prejudice to the provisions of Sub-Article (1) of this Article, the Ministry of Labor and Social Affairs, the Federal Civil Service Agency and the appropriate regional organs may, in their respective jurisdiction, issue directives necessary for the proper implementation of this Proclamation.
3/ The Ministry of Labor and Social Affairs, the Federal Civil Service Agency and the appropriate regional organs shall have the power to follow up and ensure the proper implementation of the provisions of this Proclamation and regulation and directive issued pursuant to this Proclamation..
10. Right to Institute an Action
1/ Any person with disability whose rights are infringed due to non-observance of the provisions of this Proclamation, regulations or directives issued for the proper implementation of this proclamation or the association of persons with disabilities of which he is a member, or the trade union of which he is a member, or the concerned organ entrusted to implement this Proclamation may institute a suit before the competent court.
2/ The court shall render its decision within 60 days from the date on which the suit is instituted.
1/ Unless the provisions of the Criminal Code provide more severe penalties, an employer who contravenes the provisions of this Proclamation or regulations or directives issued pursuant to this Proclamation shall be penalized by a fine not less than Birr 2,000 or not exceeding Birr 5,000.
2/ Where the employer fails to rectify the contravention, within one month, in accordance with the decision of the court, the penalty shall be increased by twofold.
3/ The employer may, in accordance with the appropriate law, hold responsible its officer or employee where the contravention is attributable to the fault of such officer or employee.
12. Repealed and Inapplicable Laws
1/ The Right of Disabled Persons to Employment Proclamation No. 101/1994 is hereby repealed.
2/ No law, regulation, directive or practice shall, in so far as it is inconsistent with this Proclamations, have force and effect in respect of matters provided for in this Proclamation.
Labor disputes pending before any competent body prior to the coming into force of this Proclamation, shall be settled in accordance with the law which was in force before this Proclamation come into force.
14. Effective Date
This Proclamation shall enter into force up on
Publication in the Federal Negarit Gazeta.
Done at Addis Ababa, this 25th day of March, 2008
PRESIDENT OF THE FEDERAL DEMOCRATIC REPUBLIC OF ETHIOPIA