Proof of dismissal: Summary of Cassation decisions
A worker claiming unlawful dismissal is not required to prove that his dismissal is contrary to the labour proclamation no.377/2006. Once the claim is submitted by the worker, the burden of proving the legality of the dismissal lies on the employer. This being the case, the worker has to prove the very existence of dismissal (if it is denied by the employer) in order to shift the burden of proving its legality to the employer. Dismissal signifies an act or measure taken by an employer. When the employer denies that he has not taken this measure, it is up to the worker to prove that he has been actually dismissed by the employer. An interpretation of the law by the Cassation bench in this regard clearly shows that the burden of proving the existence of dismissal lies on the worker. (China Road and Bridge Construction Enterprise Vs. Ato Girma Bushera, Cassation File No. 57541 Hidar 14-2003 E.C. (Cassation Decisions Volume 11)
Distinction between resignation, constructive dismissal and dismissal
Resignation is a personal and voluntary act of the worker to terminate his employment contract. According to article 31 of the labour proclamation No. 377/2006 a worker has unlimited freedom to terminate his employment contract any time even in the absence of a valid ground. The only procedural requirement is giving prior notice of thirty days to the employer. A worker resigning without notice will be liable to pay compensation. According to article 45 sub article 2 of the labour proclamation this compensation could not exceed thirty days wage of the worker.
There is also a second form of resignation. This is the case provided in article 32 of the labour proclamation. The article deals with termination of employment contract without notice by the employee. A common term for such type of resignation is ‘constructive dismissal’. Constructive dismissal may be described as an indirect act of dismissal by the employer. Unlike the ordinary case of dismissal, the employer does not take a direct action or measure terminating the employment contract. He puts undue pressure so unbearable that the worker is forced to end his employment contract. Under Ethiopian law, constructive dismissal is not treated as unlawful dismissal, but the worker will be entitled to get compensation equal to thirty times his daily wage and severance pay.
On the other hand dismissal signifies a measure taken by the employer to terminate an employment contract. Generally speaking an employer could legally terminate an employment contract on three grounds i.e. misconduct, incapacity and operational or organizational grounds.
Making a distinction between resignation, constructive dismissal and dismissal is not simple as you might think. The following summary of cassation decisions shows the nature of the problem and how the cassation bench has interpreted the law.
The Problem of oral dismissal
When a dismissal letter is issued by the employer, the letter sufficiently proves the existence of dismissal. When dismissal is due to fault or misconduct of the worker, Article 27 sub article 2 of the labour proclamation imposes an obligation on the employer to give to the worker written notice specifying the reasons for and the date of termination. In case of termination of employment contract according to article 28 the law requires notice to be given in writing. (Article 34 sub article 1 of labour proclamation No. 377/2006)
A problem occurs when employment contract is terminated by the employer orally or by conduct. For instance, the worker may be prevented from entering to the premise of his workplace. In some cases, he may be told that he is dismissed or may be ordered to ‘leave!’ In such type of cases it is very difficult for the worker to establish oral dismissal or dismissal by conduct due to unavailability of witnesses or other types of evidence.
In China Road and Bridge Construction Enterprise Vs. Ato Girma Bushera, respondent claimed compensation and other payments alleging unlawful termination of his contract. The employer denied the allegation stating that applicant was not dismissed but voluntarily left his place of work. Both the lower and appellate courts ruled that there is dismissal and it was taken unlawfully.
Finally applicant submitted casation petition to the cassation bench for the review of the decisions of lower courts. The bench reversed the decisions of the lower court and the appellate court. It was stated that the burden of proving the existence of dismissal lies on the worker (respondent). The evidence submitted by the worker is testimony of witness who said they have seen respondent fighting with one Chinese guy (impliedly employee of the company) on a road construction site. The bench concluded that no evidence has been presented by the worker establishing dismissal measure was taken by the employer.
Dismissal by conduct
In some cases a worker may be considered as dismissed even in the absence of written or oral dismissal measure. This is the case when the conduct of the employer unequivocally manifests his intention to terminate the employment contract. In New Generation University College Vs. Ato Legese Desalegn, (CFN 82091 Megabit 25-2005 E.C. V.15) respondent was employed in applicant’s institution as an instructor. He was denied his salary for the month of January. The worker requested applicant in writing to pay him his salary and to give reasons as to why such measure was taken. Applicant didn’t respond to thr request. In the next month, all teaching staffs of the university college, except respondent were assigned courses they are going to teach for the coming semester.
Respondent took this conduct of the employer as dismissal measure and instituted a labour action claiming unlawful termination of employment contract. The employer in his response argued that as far as the right of the worker is not violated failure to assign courses should not amount to termination of employment. It also insisted that termination is lawful due to absence of the worker for more than five consecutive working days. (Remember respondent left the college after he was denied salary and courses to teach.)
The Cassation bench rejecting applicant’s argument stated that respondent was not only denied his salary without valid reason, but he was also denied courses to teach. Such actions of the employer taken cumulatively clearly indicate that applicant was not willing to accept respondent as his employee. Applicant’s conduct amounts to a dismissal measure. In effect as there was no valid ground, termination of employment contract is unlawful entitling respondent to payment of compensation, severance pay and wages in lieu of notice period.
Transfer order and dismissal
If your manager tells you not to come to your usual workplace because you are transferred to a new place of work, should you take this as a dismissal measure or a transfer order?
In Naicon plc Vs. Ato Solomon Tessema, (CFN 43160 Hamle 21-2001 E.C) the cassation bench in its ruling stated that a worker who fails to resume work in the new place of work where he is transferred is considered to resign by himself. The case started when the respondent brought a labour action in the lower court claiming compensation and payment due to unlawful termination of employment contract. Applicant denied allegation of dismissal measure and argued that it is the respondent who terminated the employment contract by way of resignation and absence from work.
The evidence presented by respondent to prove existence of dismissal shows that his manager told by him by phone that he is transferred to a new location. The manager also ordered the guards at the gate to prohibit respondent from entering to his previous place of work. The federal first instance court gave decision in favour of respondent. The court found the evidence convincing to establish the existence of dismissal by applicant. The federal high court also affirmed lower court’s decision.
However, a different position was held by the cassation bench. In its reasoning it stated:
“respondent was prohibited from entering in to his previous place of work but he was not prohibited to enter in to his new place of work where he is transferred”
Accordingly, the bench concluded the employment contract was not terminated due to dismissal of applicant but by an act of resignation of respondent. Both decisions of lower courts reversed.
Is that a sound decision and correct interpretation of the labour proclamation?
According to article 4(3) of the labour proclamation a contract of employment shall specify the type of employment and place of work, the rate of wages, method of calculation thereof, manner and interval of payment and duration of the contract. The place of work is one of the most important elements of the contract for most employees in Ethiopia. You apply to a vacancy not only because the salary is attractive but also for advantages attached to the place of work. The place of work is also a key factor in maintaining social values. Assume you get an employment opportunity in Addis and you move your family from one of the regions. You find a school for your children. Your wife also finds a new job in Addis. The family is now settled. After some time your employer transfers you to remote place of work. What is the option now? Either you have to leave you job and stay with your family or leave your family and go to the new location. In both cases it is too difficult and challenging to maintain a happy family and a decent job at the same time.
From the legal view point, as the place of work is one of the basic elements of the employment contract, it could not be varied unilaterally by the employer. (Article 15 of labour proclamation No. 377/196) And we all know that a transfer measure is taken by the employer as a reprisal indirectly pressuring the worker to quit his job. Transfer measure nowadays has become a safe way out for an employer to get rid of a worker demanding his right. Therefore, in the absence of a collective agreement or clear stipulation in the contract of employment providing for the unilateral power of transfer by an employer, courts should consider unlawful transfer measure as a dismissal measure.
Dismissal by unauthorized person
A worker may be successful in establishing that he has been dismissed orally. But, in addition to proving the oral communication, it has to be proved that the person taking the measure has a managerial power to dismiss a worker. In Cassation File Number 57561 and 79212, (Royal keremela plc Vs.w/t. Tsehai Berhanu) it was held that if a worker quits his job due to a measure of dismissal by unauthorized personnel of the employer, he will not be legally considered as if his employment contract was terminated by the employer. In other words, it is deemed as if he has resigned.
Resignation by admission
Contrary to the two cases of resignation (i.e. ordinary resignation and constructive dismissal) is it possible that a worker may resign by admission?
As pointed out above resignation is totally a personal decision of the worker. The notice of resignation, therefore, should be personally signed by the worker himself. A “resignation letter” prepared and written by an employer does not in any way indicate clear intention of the worker to resign from his job. In Utech construction Vs. Ato Jemal Mohammed (CFN 39042 Ginbot 26-2001 E.C.) the employer prepared a resignation letter and gave it to applicant. He accepted the letter. (The reason for acceptance of the letter as stated by respondent is that respondent refused to pay his wage unless he accepts the letter) He also took relevant payments like remaining wage and other entitlements. Then he sued the employer (applicant) for unlawful termination of employment contract. The very existence of dismissal measure was then denied by applicant. According to the lower courts, the acceptance of the resignation letter was not sufficient to establish an act of resignation. However, the cassation bench reasoned that acceptance of letter of resignation and taking of payments indicate worker has admitted to resignation.
The problem with the decision of the cassation bench is that no such concept of ‘resignation by admission’ exists in the labour proclamation.
Dismissal by admission
In Haile Gidey Hollow block manufacturing and construction vs. Yehedego W/tinsae (Cassation File No. 40113 Hamle 7 2001 E.C.), the first instance court rejected respondent’s claim of reinstatement due to unlawful dismissal stating that he failed to prove he was dismissed by applicant. On appeal, applicant insisted that he hasn’t dismissed the respondent. He also told the appellate court that, he is still willing to accept the applicant as his worker, if he comes back and resume work. The appellant court interpreted this statement as evasive denial and hence admission of unlawfulness of the dismissal measure. Finally when the case reached the Cassation Bench, the decision of the appellate court was reversed. The bench, while criticizing the appellate court stated that, in the absence of dismissal, it is contrary to the law of procedure to conclude that unlawful dismissal has been admitted by way of evasive denial.