Notice
This is Unofficial Translation of the Amharic text
Cassation File No. 253160
Tir 27, 2016 E.C.
Judges: Teferi Gebru (Dr.)
Endashaw Adane
Teshome Shiferaw
Wazimo Wasira
Senayit Adnew
Applicant: Ato Getahun Balcha – appeared
Respondent: Tike Hotel and Resort Representative Dilyab Jebessa – appeared
Having examined the file, we have rendered the following judgment.
Judgment
The case concerns a labor dispute, which was initiated at the Bishoftu City Woreda Court, where the current applicant was the plaintiff and the current respondent was the defendant. In the statement of claim submitted by the applicant, he stated: “I was employed in the respondent’s organization as the Head of the Human Resource Administration and Training Department starting from 16/01/2015 E.C., earning a monthly salary of Birr 20,000.00. While I was serving, I was unlawfully dismissed from work on 10/04/2015 E.C. without any fault and without notice. Therefore, pursuant to Labor Proclamation No. 1156/2019, I request the court to order the payment of severance pay, notice period pay, delayed payment penalty, job security compensation, compensation pay, and my unpaid 24 days’ salary, totaling Birr 296,000.00, plus costs and expenses including attorney fees; and I also request to be provided with a certificate of work experience.”
The respondent, in their statement of defense, argued that since the applicant is a managerial employee and not a regular worker, the relationship between them should be governed by the Civil Code and not by the Labor Proclamation. They further stated that the applicant was hired for a three-month probation period and, failing to prove fit for the position, was lawfully dismissed before the expiry of the probation period. Thus, they requested the court to dismiss the claim and award them costs and expenses.
After hearing the arguments and evidence of both parties, the court found that the respondent failed to prove that the applicant, as a managerial employee, had the power to hire, fire, and formulate and implement the respondent’s policies. The respondent did not submit to the court the document showing the job description of the Head of the Human Resource and Training Department, which the court had requested. According to the decision given by the respondent organization’s board on 16/12/2014 E.C., the human resource department cannot hire employees; the hiring, firing, and transferring of employees is done by the respondent’s decision. Furthermore, since the contract concluded between the parties did not state that he would perform the duties listed under Article 2(10) of Proclamation No. 1156/2019, the preliminary objection raised claiming the applicant is a managerial employee was dismissed. The court reasoned that since the applicant served beyond the 60-day probation period set in the Proclamation, he is considered a permanent employee. In the absence of evidence presented by the respondent proving the applicant’s incompetence and that capacity improvement training was provided, dismissing him without notice is an unlawful act. Consequently, the court decided that the respondent must pay the applicant notice period pay, severance pay, compensation pay, unpaid 24 days’ salary, and three months’ salary for delayed payment, totaling Birr 221,000.00, plus costs and expenses including attorney fees. This decision was upheld by the Zonal High Court by a majority vote.
Aggrieved by this decision, the respondent applied to the Regional Supreme Court Cassation Division to have it reversed. The Regional Cassation Division, after hearing the arguments of both parties, reasoned that the board’s decision merely stated that employee hiring and dismissal should be done through discussion to create a comfortable and stable working environment, but did not restrict the applicant’s job description from being that of a manager. Since it was proven by witness testimony that the applicant signed employee dismissal letters, and given that the respondent proved through documentary and witness evidence that the applicant’s job description was that of a manager, the lower courts erred by bypassing the preliminary objection raised that the case should be governed by the Civil Code and not the Labor Proclamation. Therefore, the decision of the lower courts stating that the applicant is a regular employee and not a manager was reversed. The court decided that since the applicant is a manager, the case should not be entertained under Proclamation No. 1156/2019.
The cassation petition was submitted to the Federal Supreme Court Cassation Division being aggrieved by and seeking the reversal of the decision of the Regional Cassation Division. The content of the grievance is that although the applicant was employed as the Head of the Human Resource Administration and Training Department, they practically do not perform the duties carried out by a manager and only lead a specific work unit; and according to the directive issued by the respondent’s board, the recruitment, promotion, transfer, and other matters of employees are carried out by a committee established by the board, and it has been decided and implemented accordingly that the applicant, apart from being a member of the committee, cannot pass any decision alone. Under these circumstances, the decision rendered by the Regional Cassation Division stating that the applicant, being a manager (management employee), should not be adjudicated under the Labour Law, contains a fundamental error of law, and therefore it should be reversed and the decisions rendered by the Regional Woreda and High Courts should be upheld.
The Federal Supreme Court Cassation Division framed an issue to investigate and decide whether the Regional Supreme Court Cassation Division reversed the decision rendered by the lower courts by evaluating evidence, and if the decision was given by evaluating evidence, whether it falls under the legal jurisdiction of the Cassation Division, and the respondent was made to give a reply to it.
The respondent, in their reply, stated that since the applicant was employed on probation as a management employee in human resource administration and was dismissed due to failure to properly perform their duties, and since an interpretation regarding a management employee has been given by the Federal Supreme Court Cassation Division in File Nos. 21329 and 92466, the dispute between the parties should be adjudicated under the Civil Code and not under the Labour Law. The board, having its seat in Addis Ababa, organizes the properties of the respondent located in various places, inspects their business activities, and follows up on the business operation policies issued by the government to provide support to the enterprises, but it does not have the role of going down to each enterprise to hire, train, and dismiss personnel. Thus, they requested that the petition submitted by the applicant be rejected and the decision of the Regional Cassation Division be upheld. The applicant, in their rejoinder, argued by strengthening their grievance.
While the background of the case briefly looks like this, we have also examined the petition and reply of both parties in light of the framed issue and the relevant legal provisions. As we have examined, regarding the dispute between the parties, the Regional Woreda and High Courts, by evaluating the evidence presented by both parties in accordance with the law, determined that since the respondent failed to prove that the applicant was performing the duties of a management employee, the applicant is a worker; and since they are a worker, their dismissal without any fault and warning is unlawful, and thus the respondent should pay the payments due under the Labour Proclamation No. 1156/2019. However, it can be understood from the attached copy of the decision that the Regional Cassation Division reversed the decision of the lower courts stating that it is inappropriate to call them a worker when it was proven by the human and documentary evidence presented by the respondent that the applicant is a management employee. This shows that although the respondent argued in their objection to the applicant’s claim that the applicant is a management employee, the Woreda and High Courts, which have the jurisdiction to evaluate evidence and ascertain facts, confirmed that they failed to prove their argument and rendered a decision.
As provided under Article 80 (3)(b) of the FDRE Constitution, the Cassation Division of the Regional Supreme Court is limited to correcting decisions in which a fundamental error of law has been committed. It is a known fact that a fundamental error of law does not include weighing evidence, establishing facts, and rendering a decision. As indicated in Article 26 (1) of Proclamation No. 216/2011, issued to re-determine the Organization, Jurisdiction, and Duties of the Oromia Regional Courts, it is clearly stated that the Cassation Division of the Regional Supreme Court can accept and review a case only if it believes there is a fundamental error of law committed in cases where a final decision has been rendered by the regional courts. While Sub-Article 2 of this same Article of the Proclamation lists the conditions under which a decision can be considered to have a fundamental error of law, Sub-Article 3 (d), which specifically stipulates cases that should not be submitted to the Cassation Division, provides that any decision involving an error of fact, admissibility of evidence, or weighing of evidence shall not be submitted to the Regional Cassation Division. Similarly, the Cassation Division of the Federal Supreme Court has given a binding legal interpretation in Cassation File No. 231695 that the Regional Cassation Division does not have the jurisdiction to render a decision by weighing evidence.
Returning to the case at hand, the basis for the Regional Cassation Division to reverse the decisions of the Regional Woreda and High Courts was the testimonies of witnesses and documentary evidence presented by both parties. This clearly shows that the Cassation Division of the Regional Supreme Court went beyond the jurisdiction limited and granted to it by the Constitution and the law, weighed the evidence, and rendered the decision that is the basis for this cassation petition. Furthermore, the respondent did not give a clear answer to the issue framed by this Division to examine whether the Regional Cassation Division has the jurisdiction to weigh evidence.
Therefore, the decision rendered by the Regional Cassation Division—without taking into consideration the FDRE Constitution, the aforementioned proclamations, and the binding legal interpretation given by the Cassation Division of the Federal Supreme Court that it lacks the jurisdiction to weigh evidence, which must be mandatorily applied by courts at any level—is found to have committed a fundamental error of law that must be corrected by this Division in accordance with Article 2(4)(a)(sh), 10(1)(c), and 26(3) of the Federal Courts Proclamation No. 1234/2013. Hence, the following has been decided.
Decision
1. The decision rendered by the Cassation Division of the Oromia Regional Supreme Court under File No. 423872 on Hamle 04, 2015, is reversed in accordance with Article 348 (1) of the Civil Procedure Code.
2. The decisions rendered by the Regional Bishoftu City Woreda Court under File No. 23043 on Megabit 19, 2015, and the East Shewa Zone High Court under File No. 71770 on Ginbot 07, 2015, are upheld in accordance with Article 348(1) of the Civil Procedure Code.
Order
1. Since the file has received a decision, a copy shall be given to both parties.
2. The parties shall bear their respective costs and expenses incurred in this Division.
3. We have closed the file and returned it to the archive.
Contains the illegible signatures of five judges.
F/D