Incompetence is one of the valid grounds of termination of employment contract upon notice. Article 28/1/a/ of the Labour Proclamation No. 1156-2019 lists three instances constituting incompetence. These are;
- Manifest loss of capacity to perform work.
- Lack of skill as a result of refusal or inability to make use of an opportunity of training arranged by the employer to upgrade skill.
- Inability to acquire the necessary skill after taking training
In order to terminate a contract of employment due to incompetence, existence of one of the above three cases must be proved. The previous labour proclamation was silent as to how incompetence is to be established. As a result, the implementation of the provision was marred by inconsistencies. The new Labour Proclamation no. 1156/2011 added a new article to address the problem and stipulates that incompetence must be assessed through performance evaluation. The new Article 28/2 / reads as follows:
Any loss of capacity of work referred to in Sub-Article (1) (a) of this Article shall, unless otherwise provided by a collective agreement, be verified by a periodical job performance evaluation
The provision prohibits the employer from producing oral or other forms evidence to prove existence of incompetence. Unless collective agreement determines the specific measurement criteria of competence, the failure to present performance evaluation will result in termination being unlawful.
Simply alleging incapacity without any supporting evidence will automatically make the termination unlawful. In C/F/N. 35100 (Ababa Transport Transport Plc and Berhe Gebreselassie Unpublished, 2001 E.C.) respondent was dismissed due to repeatedly causing problems at work and refusing to cooperate with co-workers. However, during the hearing in court, applicant argued that respondent has received all his payments and agreed to the termination
Apart from this argument, the applicant did not provide any evidence to support the facts contained in the dismissal letter. The trial court ordered reinstatement of respondent with six-month salary back pay, citing the applicant’s failure to produce evidence to substantiated the ground of termination stated on the dismissal letter. Appellant’s appeal against the decision was also dismissed by the appellate court.
Applicant then submitted application to the Cassation Bench. The bench after thoroughly examining lower courts’ decisions in light of the labour proclamation, uphold part of the decision which declared termination unlawful. In its reasoning the bench indicated that what has been stated in the dismissal letter was sufficient ground for termination of employment under Article 28 (1) (a) of the Proclamation, but termination was illegal due to lack of supporting evidence.
While there is no doubt existence of evidence is important, what is more important is the relevance and admissibility of the evidence. This implies even performance evaluation may be rejected if irrelevant and inadmissible.
As stated in Article 28/2/a/, loss of capacity should be directly related to the work to which the worker has been assigned. Evaluating skill and competence based on performance of work not assigned to the worker by the contract and using inappropriate qualification criteria is not acceptable. The result of any such evaluation does not show loss of capacity. (C/F/N. 82335 Holy Engels School Plc. vs. Melkam Alemayehu Vol. 14, 2005 E.C.)
In C/F/N. 82335respondent was employed as Amharic language teacher. At the request of applicant, he was additionally teaching English subject. Applicant terminated respondent’s contract on the grounds that he had failed in his teaching duties and was unable to improve despite repeated warnings. When respondent brought action challenging the termination, the trial court decided in his favour. The court found the termination unlawful because respondent was evaluated for his English teaching skill not Amharic. Respondent’s field of study is Amharic language. Therefore, proof of evaluation based on unrelated field of study and experience is not admissible.
The Adama Special Zone High Court, which heard the appeal affirmed lower court’s decision. The applicant subsequently filed a cassation application with the Oromia Regional State Supreme Court Cassation Bench, but his application was rejected. The Federal Supreme Court Cassation Bench also agreed with lower court’s decision. In its reasoning it described the inappropriateness of the performance evaluation in the following manner.
As far as it is proved in terms of fact that respondent was employed for the Amharic language in which he was graduated, his competence should be measured based on Amharic Language, not English, because he was not employed for his English qualification.