Proof of dismissal: Summary of Cassation decisions

Proof of dismissal: Summary of Cassation decisions

Introduction

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. Continue reading Proof of dismissal: Summary of Cassation decisions

Period of time to dismiss a worker for misconduct (Summary of cassation decisions)

Introduction

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.

Continue reading Period of time to dismiss a worker for misconduct (Summary of cassation decisions)

Transfer of workers: Is it employer’s prerogative?

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.”

read the decision (Amharic)

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?

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