PROCLAMATION NO. 395/2004.
A PROCLAMATION TO PROVIDE FOR
THE PROCEDURE OF GRANTING PARDON
WHEREAS, it has been provided for in Article 71(7) of the Constitution of the Federal Democratic Republic of Ethiopia that the President of the Federal Democratic Republic of Ethiopia grants pardon in accordance with law;
WHEREAS, it has become necessary to prescribe by law the procedure of granting pardon by making compatible the provisions of criminal law and other laws with regard to pardon with the Constitution
NOW, THEREFORE, in accordance with Article 71(7) and Article 55(1) of the Constitution of the Federal Democratic Republic of Ethiopia, it is hereby proclaimed as follows: Continue reading →
ESTABLISHMENT OF AN INQUIRY COMMISSION TO INVESTIGATE THE CONFLICT OCCURRED IN GAMBELA REGIONAL STATE ON DECEMBER 13, 2003 PROCLAMATION NO. 398-2004
PROCLAMATION NO. 398/2004
A PROCLAMATION TO PROVIDE FOR THE ESTABLISHMENT OF AN INQUIRY COMMISSION TO INVESTIGATE THE CONFLICT OCCURRED IN GAMBELA REGIONAL STATE ON DECEMBER 13, 2003
WHEREAS, it is necessary to investigate and establish the source of the problem and its consequences of the confused occurred in Gambela Regional State on December 13,2003 ;
WHEREAS, investigating the incident that occurred in Gmbela is deemed necessary to give a lasting solution by taking precautionary measures to avert the occurrence of similar incidents in the future;
WHEREAS, it is necessary to ascertain the exact situation by establishing an independent commission that will investigate the incident;
NOW, THEREFORE, in accordance with Article 55 (1) of the Constitution of the Federal Democratic Republic of Ethiopia, it is hereby proclaimed as follows: Continue reading →
“Definition is an attempt to state in precise terms the meaning of a word or of an expression. In legislation it should be used only as an aid to clarity and to reduce vagueness as much as possible. It should be used only when necessary and should be as complete as possible. Robinson1 considers that the purpose of all nominal definition is to report or establish the meaning of a word or symbol. Word-word definition does this in the form of saying that one word means the same as another word. Word-thing definition does it in the form of saying that a word means a certain thing.“
V. C. R. A. C. CRABBE (LEGISLATIVE DRAFTING)
“Adeﬁnition is unnecessary if themeaning of theword or phrase is clear or can be readily ascertained fromthe context. Also, a word or phrase need not
be deﬁnedmerely because it is technical or unusual.However, if a deﬁnition is genuinely required, it should not be shunned merely because the term is
used only onceortwice“ Peter Butt and Richard Castle (MODERN LEGAL DRAFTING A Guide to Using Clearer Language, 2nd ed.)
After writing a post ” the difficult task of defining person” I realized that the issue of “definition” is one that requires immediate attention and response from the lawmaker. Although the basic purpose of definition is clarity, most of the definitions of federal laws are confusing and difficult to understand. One of the causes for this is that the lawmaker considers definition as a necessary and inevitable part of every proclamation. The result is a lengthy list of definitions very difficult to comprehend.
Definition and the new pension law.
Article 2(5) of Private Organization Employees Pension Proclamation No. 715/2011 defines “Region” as any state referred to in Article 47(1) of the Constitution of the Federal Democratic Republic of Ethiopia and includes the Addis Ababa and Dire Dawa city administrations. However, there is no provision in the proclamation mentioning or making a reference to the term “Region. It is simply defined without purpose. There is an additional problems in defining Region“. According to Article 47 of the constitution, There are only 9 regional states. Therefore, there is no constitutional ground to consider Addis Ababa and Dire Dawa city administrations as regions even for the purpose of that specific legislation. One of the cardinal principles of ‘definition’ is that the lawmaker should avoid making a rule in the name of definition. The purpose of definition is clarification, not making rules. Defining Addis Ababa and Dire Dawa city administrations as regions is making a rule as to the scope of the proclamation. Parliament can avoid such type of problems by simply providing a ‘scope’ provision and explicitly indicating that the law is applicable to Addis Ababa and Dire Dawa city administrations.
After going through some of the definitions in Federal laws, I thought it could be helpful for parliament if all the definitions from 1995 till now are compiled arranged alphabetically. This resolves the problem of consistency while using a similar term in different legislations provided that there no deliberate decision variation to signify the context that term is used.
For instance “Road” and “Vehicle” are defined in different legislations in the following way.
Vehicle (P547/07) a motor vehicle, constructed for use for conveyance of goods and includes trailers, semi-trailers and rail wagons
Vehicle (P559/08) any wheeled motor vehicle, semi trailer or trailer for use on the road with the exception of wheelchair, implement of husbandry and bicycle
Road (P66/97) highway, rural road and urban road and includes bridge
Road (P559/08) any highway, urban or rural street, parking or terminal, bridge or any other passage customarily open for vehicles
Road (P600/08) any road, street, highway, rural road or any other travel route, customarily used by vehicles other than private roads not open to all traffic
It is very difficult to conclude that the terms ”Road” and “Vehicle” are defined intentionally to reflect any specific context. There is simply a variation in the use of words. Most of the time, this happens when the specific proclamations are drafted by different individuals A drafter should know how a certain term is defined in another statute, before embarking on the task of defining and giving a meaning to that legal term. However, as there is no law digest or another easy mechanism of systematic index and reference to all legislations, it would be a time consuming task to identify similar definitions.
As a result I have compiled all the definitions of legal terms used in all the proclamations and regulations from 1995 to 2003. This compilation also includes a complete list all repealed laws and corrigenda (corrections) during this period.
Below is the first entry of the compilation. The abbreviations in the bracket refer to the source of the law where that definition is taken from. I have deleted the repetitive use of the word “means” after each definition.
I would appreciate if you could leave me you constructive (…and even destructive) comments.
Academic community (P650/09) all those persons studying, teaching and doing research as permanent or visiting members of an institution
Academic officer (P650/09) research and publication officer, registrar and other similar officers
Academic staff (P351/03) an academic staff employed by a higher education institution to devote 75% of his/her time to teaching and 25% of his/her time to research or employed in research centers of the institution and devote 75% of his/her time to research an 25% of his/her time to teaching
Academic staff (P650/09) members of an institution employed in the capacity of teaching and/or research, and any other professional of the institution who shall be recognized so by senate statutes
Academic unit (P650/09) a college, faculty, school, an institute, a department or a centre established as a constituent unit of an institution
Access (P482/06) the collection, acquisition, transfer or use of genetic resources and/or community knowledge
Accident (P616/08) an occurrence associated with the operation of an aircraft, which takes place between the time any person boards the aircraft with the intention of flight until the time such person has disembarked, in which:
a) the person is injured as a result of:
(1) being in the aircraft;
(2) detached from the aircraft, or
(3) direct exposure to jet blast;
except when the injuries are from natural causes, self inflicted or inflicted by other persons, or when the injuries are to stowaways hiding outside the areas normally available to passengers and crew;
(b) the aircraft sustains damage or structural failure which:
(1)adversely affects the structural strength or performance of the aircraft; and
(2)would normally require major repair or replacement of the affected component, except for engine failure or damage, when the damage is limited to the engine, its cowlings or accessories or for damage limited to propellers, wing tips, antennas, tires or brakes failings or small dents or puncture holes in the aircraft skin; or
c) the aircraft is missing or is completely inaccessible
Accrediting Authority (P391/04) the Ministry [Ministry of Education] or a body authorized by a State in respect of the issuance of pre-accreditation licenses and accreditation certificates as the case may be
Accreditation (P391/04) the granting of a certificate of competence by the appropriate Accrediting Authority to an institution providing technical and vocational education ant training evidencing its fulfillment of the basic and additional requirements relating to the specified training standard
Addis Ababa (P87/97) includes the existing urban areas and the twenty three rural localities falling under the jurisdiction of the City Government
Administrative City (P654/09) the Administrative City of Addis Ababa or the Administrative City of Dire Dawa
Administrative costs (P621/09) shall mean those costs incurred for emoluments, allowances, benefits, purchasing goods and services, travelling and entertainments necessary for the administrative activities of a Charity or society
Administrative Decision (P515/07) shall mean for the purpose of part (10) a decision given by the Head of a government institution, either orally or in writing, on a recommendation by disciplinary or grievance handling committee in accordance with the power conferred by law or a decision given by the Head of a government institution without following the required due process
Administrative support staff (P650/09) personnel of an institution employed to provide administrative, business management, accounting, catering, maintenance, safety, security and such other services
Adulterated Fertilizer (P137/98) a fertilizer that contains any foreign substance the addition of which is likely eliminate or decrease the nutrient content of plants
Adulteration (P661/09) adding any foreign substance or ingredient to a food for commercial purpose or to be served for the public in any way or medicine other than its content or by substituting its content in whole or in part by such other substance or by storing or manufacturing it under unsanitary conditions whereby it may have been contaminated
Advance informed agreement (P655/09) a written consent granted by the Authority for the undertaking of a transaction in accordance with this Proclamation
Advertisement (P533/07) a message transmitted to publicize and promote sales of goods and services
Advocate“(P199/2000) a lawyer whose name is registered in a register in order to render advocacy services
Advocate Assistant” (P199/2000) a person who, under the guidance of an advocate, opens files of claims prepared by the advocate in the court of law and receives summons, orders and copies of judgments from courts and delivers same to the concerned persons
Advocacy Service (P199/2000) the preparation of contracts, memorandum of association, documents of amendment or dissolution, of same, or documents to be adduced in court, litigation before courts on behalf of third parties, and includes rendering any legal consultancy services for consideration or without consideration, or for direct or indirect future consideration
Aerial work (P616/08) an aircraft operation in which an aircraft is used for specialized services such as agriculture, construction, photography, surveying, observation and patrol, search and rescue or aerial advertisement
Aerodrome (P616/08) an area of land or water intended to be used wholly or in part for the landing, take-off, movement or servicing of aircraft and includes buildings, installations and equipment on or adjacent to such area used for these purposes
Agricultural development (P686/10) the production of perennial and annual crops as well as the development of animal and fishery resources, forest, wildlife, and the plantations of floriculture, vegetables and horticulture and products thereof
Agricultural Product (P372/03) a product as may, from time to time. be determined as an agricultural product by the Ministry or its designate
Agricultural Research (P79/97 ) research undertaking aimed at improving the production and productivity of plants, animals and natural resources
Agricultural Research Center (P79/97 an agricultural research organ established or to be established or administered by the Federal or Regional Government
Aid in kind (P57/96) any assistance received by the Federal Government under a bilateral or multilateral agreement, or from other sources, that is received in the form of goods or services or any other form other than money
Aid in kind (P/648/09) any assistance received by the Federal Government under a bilateral or multilateral agreement, or from other sources, that is received in the form of goods or services or any other form other than money
Aircraft (P541/07) any type of airplane, helicopter, airship whether or not controlled or directed by human agency and without being limited to devices flown by automotive power
Aircraft in flight (an) (P31/96) refers to the period from the moment when all the external doors of an aircraft are closed following embarkation until the moment when any such door is opened for disembarkation; and includes, in case of forced landing, the time until the aircraft as well as the persons and property on board are released
Aircraft in service (an) (P31/96) refers to the period starting from the time of the preflight preparation of the aircraft by ground personnel or by the crew for a specific flight until twenty-four hours after any landing; but it shall not, in any event, be less than the entire period during which the aircraft is in flight as defined in sub-Article(1) of this Article
Aircraft (P616/08) any vehicle that can derive support in the atmosphere from the reactions of the air other than the reactions of the air against the earth’s surface
Air carrier (P616/08) an air operator that engages in the provision of transportation services by aircraft for remuneration or hire, whether directly or indirectly by lease or other arrangements, on schedule or charter basis
Aircraft engine (P616/08) any engine used, or intended to be used, for propulsion of aircraft and includes all parts, appurtenances and accessories thereof other than propellers
Air navigation (P616/08) the operation of guiding an aircraft from one place to another, and includes the fixing of the position of an aircraft
air navigation facility (P616/08) any area, lights, apparatus or equipment for disseminating weather information, signaling, radio directional finding, radio communication or any other facility for guiding or controlling flight in the air or the landing and take-off of aircraft
Aircraft operator (P616/08) any person engaged in an aircraft operation
Air route (P616/08) the airspace designated by the Authority for air navigation
Air service (P616/08) an air transport service or an aerial work service, whether regular or casual
Air traffic control service (P616/08) provision of service to prevent collisions between aircrafts or with obstructions, and for expediting and maintaining of an orderly flow of air traffic
Airworthiness (P616/08) the ability of an aircraft, with all its necessary components and accessories, to perform its function satisfactorily as determined by the Authority
Animal (P117/98) cattle, sheep, goat, camel, poultry, pig, bee and includes other animals which the authority for the purpose of this proclamation designates as animals
Animal Product (P117/98) meat, milk, butter, cheese, egg, honey wax, sheep hair, as well as wool and includes other products which the authority designates as animal products
Animal by-product (P117/98) everything of value produced from the slaughter of animal such as hide, skin, horn, hoof , blood, bone and meat meal and includes other by-products which the authority in the future designates as animal by products
Apiculture resources (P660/09) colony of honeybees residing in forests and hives and honey source plant potentials available in nature
Appliances (P616/08) instruments, equipment, apparatus, parts or accessories which are used or intended to be used, in the navigation, operation or control of aircraft in flight including parachutes and communication equipment and any other mechanism installed in or attached to aircraft during flight, and which are not parts of aircraft, aircraft engines or propellers
Appointee (P668/2010) includes the following:
a) the President of the Republic, the Prime Minister, the Deputy Prime Minister, Ministers, State Ministers, Deputy Ministers, Commissioners, Deputy Commissioners, Director Generals and Deputy Director Generals;
b) Mayors and other appointees of the Addis Ababa and Dire Dawa city administrations;
c) Presidents, Deputy Presidents and judges of regular and municipal courts;
d) appointees of the defense forces and police;
e) ambassadors, heads of consuls and other diplomatic missions;
f) the Auditor General and the Deputy Auditor General;
g) the Governor and Deputy Governor of the National Bank;
h) Members of Board of Directors, Managers and Deputy Managers of Public Enterprises;
i) Presidents and Deputy Presidents of government higher education institution
Apprentice a person undergoing apprenticeship pursuant to a tripartite agreement concluded among a training institution, an organization and a trainee
Apprenticeship (P391/04) job training undertaken by a trainee in an organization pursuant to an agreement concluded among a training institution, an organization and trainee to enable the trainee to put to practice the technical and vocational education and training he acquired in a training institution and to be acquainted with work
Appropriation (P57/96) any authorization of the council of Peoples’ Representatives to pay money out of the Consolidated Fund
Appropriation (P/648/09) the endorsement by the Minister of the budget allocation based on the budget approved by the House of People’s Representatives
Asset (P668/2010) any movable or immovable or tangible or intangible property and includes landholdings and debts
Assistance (P10/95) includes comprehensive measures taken to prevent the coming, in future, of a disaster area under a similar situation, in addition to meeting the need of the victims of disaster for food and other basic necessities of life
Assistance (P383/04) include all measures taken to meet the need of the victims of disaster for food and other basic necessities of life
Assistance Programme (P10/95) includes the supply and distribution of food and other materials necessary for a living, the availability of clean drinking-water, support in health and nutrients, support extended to the elderly and the disabled, the prevention of destruction to rural wealth such as animals, support for the development of supplementary economic activities besides agriculture, the rehabilitation of the environment, other developmental activities that help combat drought and measures relating to schemes which create job opportunities in connection with assistance
Assistance programme (P383/04) includes the provision of financial aid, the supply and distribution of food and other materials necessary for a living, the availability of clean drinking water, support in health and nutrients and the prevention of destruction to rural wealth such as animals
Asylum-seeker (P409/04) any person who presents himself at the border or frontier claiming to be a refugee or any person is in Ethiopia and who has lodged an application with the competent authorities for recognition as a refugee and is awaiting a final decision on his application
Atomic energy (P571/08) any type of energy emitted from radio-isotopes, nuclear reactions, nuclear reactors, X-ray equipment or other technical apparatus emitting ionizing radiation
Audio-visual work (P410/04) a work that consists of a series of related images, which impart the impression of motion, with or without accompanying sounds, susceptible of being made visible; by any appropriate device, and includes a cinematographic or other film
Auditor of Political Party (P573/08) a person, having a certified professional competency, designated by a political party as auditor without any relation of whatever to the designating party
Author (P410/04) the person who has intellectually created a work and includes-
a) in the case of a computer program, person who has created the program;
b) in the case of a photograph, the person responsible for its composition
Authorized dealer (P591/08) any person other than a bank, which is authorized by the National Bank to engage in foreign exchange transactions
Aviation personnel (P616/08) any individual who carries out a civil aviation operational or technical function and includes:
a) any individual who engages as pilot in command, pilot, mechanic or member of the crew, or who navigates an aircraft while the aircraft is underway;
b) any individual in charge of the inspection or maintenance of aircraft, aircraft engines or propellers or appliances; or
c)any individual who serves in the capacity of flight controller, air traffic controller or aircraft dispatcher officer
Award (P110/98) a decision in writing rendered by an arbitrator(s) on a reference made otherwise than by order of court in the course of suit by parties to a compromise, conciliation or arbitral submission or other similar matters
PROCLAMATION NO. 409/2004
WHEREAS, Ethiopia is providing asylum and protection to refugees and promoting their voluntary repatriation in safety and dignity whenever conditions permit,
WHEREAS, Ethiopia is a party to the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951, the Protocol Relating to the Status of Refugees of 31 January 1967 and the OAU Convention Governing the Specific Aspects of Refugee Problem in Africa, done at Addis Ababa on 10 September 1969.
WHEREAS, it is desirous to enact national legislation for the effective implementation of the aforesaid international legal instruments, establish a legislative and management framework for the reception of refugees, ensure their protection, and promote durable solutions whenever condition permit;
NOW, THEREFORE, in accordance with Article 55(1) of the Constitution of the Federal Democratic Republic of Ethiopia, it is hereby proclaimed as follows:
PROCLAMATION NO. 118/1998
A PROCLAMATION TO AMEND THE MINING PROCLAMATION
WHEREAS, it has become necessary to amend the Mining Proclamation;
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 “Mining(Amendment) Proclamation No. 118/1998.”
The Mining Proclamation No. 52/1993 is hereby amended as follows:
1. Article 40 of the Proclamation is deleted and replaced by the following new Article 40:
“40 Rates of surface rentals agreed upon, with investors in the Mining Agreements before the issuance of this Amendment Proclamation shall remain unchanged.”
2. Article 46(1) (as amended) is hereby further-amended as follows :
“(1) The power to issue artisnal mining, prospecting, exploration and small scale mining as well as construction minerals mining licenses undertaken exclusively by domestic investors is vested in the National/Regional states; while licenses for all other mining operations shall be issued by the Ministry, subject to directives to be given by the Council of Ministers in respect of combined and mining licenses.”
3. Sub-Article 2(F) of Article 46 is deleted and replaced by the following new sub-article 2(F):
“(F) The Ministry shall have the power to collect and audit royalties and other payments on Large – Scale Mining Operations.”
3. Effective Date
This Proclamation shall come into force as of the 23rd day of June, 1998.
Done at Addis Ababa, this 23rd day of June, 1998.
PRESIDENT OF THE FEDERAL DEMOCRATIC
REPUBLIC OF ETHIOPIA
I reakized that tehere was technical difficulty to download the new 2003/2011 proclamations I posted previously in Part one and Two. Now, I have made some changes to the previous post and everyone can download all the proclamation freely and easly.
The total number of proclamations issued by the House of People’s representatives is 26 i.e proclamation number 692-proclamation number 718.
You can freely download all the laws here Ethiopian legal breif.
In the first part you will find Proclamation number 706-718.
I will post the remaining proclamations in part II.
One of the controversies surrounding the new private organization employee’s pension proclamation has been the effect of resignation on entitlement to pension benefits. Based on the length of service of the employee, resignation could have three different effects.
1. When the length of service of the employee is greater than or equal to 10 years but less than 20 years of service, resignation results in reimbursement of the employee’s contribution excluding contribution made by his employer.
2. If the employee resigns after serving for less than 10 years, he will relinquish his right to reimbursement. He will just leave empty-handed.
3. If the length of service is greater than or equal to 20 years but less than 25 years the employee will be entitled to get full retirement pension but payment will be made upon attainment of retirement age.
4. If the length of service of the employee is greater than or equal to 25 years , resignation results in entitlement to full retirement pension which will start to be paid beginning five years prior to retirement age.
As indicated above, an employee who resigns after serving for less than 10 years is not entitled to claim his own contribution. Although this has become a point of controversy in light of the new private organizations pension proclamation, a similar limitation has existed for more than 40 years in case of government employees’ pension laws.
In this regard one of the oldest pension laws of the country ( Public servant’s pension decree No. 46/1961) reads:
“A public servant who voluntarily resigns prior to completing 10 years of service shall be entitled to no benefits hereunder” (Article 8(a) of Public servant’s pension decree No. 46/1961)
All subsequent pension legislations have adopted a similar position regarding the effect of resignation before 10 years of service. During this time no strong criticism has been heard against such statutes.
What follows is a brief analysis or criticism of the new law and previous statutes as regards their prohibition of reimbursement of employee’s contribution. I will also try to forward some advice to employees who want to quit their job but still get their own contribution by way of reimbursement even if they have served for less than 10 years.
The meaning of resignation
In order to deny an employee of his own contribution by way of reimbursement, two cumulative conditions have to be established. First, it has to be proved that the length of service year of the employee is less than 10 years. Additionally, the ground of termination of the employment contract should be one which could properly be categorized as resignation. Establishing the second condition requires legally defining ‘resignation’ and examining the specific circumstances to determine whether they fall under the elements of the definition. Both of the newly enacted pension laws i.e. Government employees’ pension proclamation No. 714/2011 and the private organization employees pension proclamation No. 715/2011 do not define the term resignation. Similarly although, resignation by the employee is one of the grounds of termination of employment contract in the labour proclamation No. 377/06, no where is the term defined.
Generally speaking, resignation refers to the acts or instances by which an employee willfully or upon his own consent quits his job. The presence of consent is very important to ascertain the existence of resignation. However, the presence of consent could not be taken as a sole test of resignation. In certain cases, a willful act by the employee may not be regarded as resignation. On the other hand, the act of quitting a job by the employee may not be taken as indicative of the presence of consent. It is possible that he may resign but without his consent.
To make things clear let me just raise two questions which are crucial for the clear understanding of the term resignation.
- If an employee makes an express written agreement with his employer for the termination of the employment contract, could this be taken as resignation for the purpose of the pension laws?
- If an employee leaves or quits her job due to undue influence or harassment by her employer, is that resignation for the purpose of the pension laws?
The above two questions make it clear that in order to deny an reimbursement to an employee whose length of service is less than 10 years, it is of primary importance to come up with a valid and clear definition of the term resignation.
In order to provide a logical answer to the above question and come up with a working definition of resignation in light of the Ethiopian pension laws, it will be helpful to refer to some of the relevant provisions of the labour proclamation.
As regards the first question, article 25 of the labour proclamation provides that the employee and the employer could reach at an agreement to put an end to their employment contract. For such an agreement to be considered as valid it has to be concluded in writing. Article 25 is found under section one of chapter two of the labour proclamation. Chapter two is a general provision which lists down all the grounds of termination of employment contract. According to 23 of the proclamation, a contract of employment shall only be terminated;
- Upon initiation by the employer or worker
- In accordance with the provisions of the law or a collective agreement or
- By the agreement of the two parties
Resignation as a ground of termination is categorized under ‘termination of employment contract by the initiation of the worker’
Therefore, this will lead us to the conclusion that a mutual agreement to terminate an employment contract, even though, is clearly a willful act of the employee to quit his job, is not a case of resignation. This means in effect a an employee who has a service year of less than 10 years could avoid the harsh effects of unilateral resignation, by making an arrangement with his employer for a mutual, bilateral agreement.
So my first advice for government employees and private organization employees covered by the pension laws is this:
- If you decide to quit your job and your service year is less than 10 years try to convince your employer to conclude a written agreement for the termination of the employment contract.
Sometimes, the employment contract may be terminated upon the initiation of the employee (his own unilateral act), but with a defective consent. This happens when an employee quits his or her job due to intolerable undue pressure of the employer. So the question raised above is: “when an employee quits his job because the employer through his conduct has engendered his health and dignity, is it resignation?” Resignation due to undue influence of the employer is what is known as constructive dismissal in labour law. It is a usually taken as one instance of dismissal by an employer.
The labour proclamation recognizes ‘constructive dismissal’, even though it does not specifically employ such term. The ordinary case of resignation is dealt in article 31. Accordingly, an employee could at any time resign from his job without any valid ground. He has to simply give a one month notice to his employer.
The employee may terminate his employment contract without notice, provided that one of the grounds in article 32 is fulfilled. Practically speaking article 32 is a typical case of constructive dismissal. Grounds under this article include:
- Employer’s act contrary to employee’s human dignity and morals or other acts punishable under the Penal Code
- Employer’s failure to act in case of imminent danger threatening the worker’s safety or health
- Repetitive failure by the employer to fulfill his basic obligations towards the worker
An employee who quits his job due to one of the above grounds is entitled;
A. A compensation equal to thirty times his daily wages of the last week of service
B. Severance pay even though his length of service is below the minimum threshold of five years
This, beyond doubt, indicates that constructive dismissal is recognized under Ethiopian labour law and is not synonymous with resignation. Therefore, resignation as indicated in the pension laws should not be interpreted as if it includes acts or instances of constructive dismissal.
Ethiopian law prohibits employee’s own contribution if he resigns and has a service year of less than 10 years. However, an employee having a service year of less than 10 years is still entitled to his contribution if;
- He terminates his employment contract by a written agreement with his employer
- If he quits his job due to undue pressure of his employer
There is also another 3rd mechanism. And this makes Ethiopian pension law hard to understand.
Both pension laws provide that an employee who has served for less than 20 years and whose employment contract is terminated for reasons or grounds not mentioned in the respective pension proclamations is entitled to reimbursement of his own contribution.
There are three main grounds of termination of employment mentioned by the pension proclamation. These are attaining retirement age, incapacity due illness or sickness (the specific term used by the proclamation is “health problems”) and incapacity due to employment injury. Resignation is also mentioned as one ground of termination with its own special effect as regards entitlement to reimbursement of the employee’s contribution or pension payment depending on the length of service. Therefore, any ground other than these will validly entitle an employee to his own contribution, if his length of service is less than 20 years.
Grounds not mentioned in the pension proclamations may be dismissal for misconduct, dismissal on operational grounds (reduction of workers), termination due to closure or bankruptcy of the undertaking etc…
Take the case of dismissal.
According to Ethiopian pension law, if you are dismissed for misconduct and your length of service is less than 10 years you will be entitled to reimbursement of your own pension contribution. But, if you simply resign after serving your employer for less than 10 years, you don’t get a penny.
What then would any reasonable employee do to get reimbursement if his/her length of service is less than 10 years?
Resign? Or get dismissed?
If you are absent for five consecutive days, you will be dismissed. If you commit any of the offences listed under article 27 of the labour proclamation, the effect is clearly your dismissal. It is bad that you are dismissed. But it is good if your length of service is less than 10 years, because you can now get reimbursement. On the contrary, if you simply leave your job peacefully, and have less than 10 years length of service you don’t get any reimbursement.