Managerial Employees

Differentiating Managerial Employees

Many countries subtly exclude “Managerial Employee s” (managerial employees) from certain labor law protections, particularly regarding the right to organize and specific working conditions. These exclusions are typically based on a narrow definition targeting key management or board members with decisive authority, aiming to prevent conflicts of interest. Examples include the U.S. National Labor Relations Act, which excludes supervisors and managerial employees with policy-making authority.

Conversely, countries like England and Germany often do not differentiate contractually employed Managerial Employee s from ordinary employees, applying general labor law equally. Ethiopia, however, adopts a strong stance, where a broad statutory definition and expansive judicial interpretation by the Cassation Bench have significantly increased the number of employees classified as Managerial Employee s and thus excluded from the full scope of labor protection.

Defining a Managerial Employee

Proclamation No. 1156/2011, Article 3(2)(c) (now Article 2(11)), defines a Managerial Employee  as:

“An individual who has the authority to formulate and implement management policies or to decide on hiring, transferring, suspending, dismissing, or assigning employees, based on law or delegation of authority given by the employer according to the nature of the organization’s work, and who, without being directed by anyone, submits his/her own proposals regarding the action the employer should take to protect the employer’s interest concerning these management matters, including the head of legal services.”

The Cassation Bench’s decisions generally reiterate this definition without further analytical explanation. Crucially, Managerial Employee  status is determined by the actual functions performed at the time of the dispute, prioritizing substance over form. Prior roles or hypothetical future positions do not confer this status. The law’s criterion is whether the party “was previously performing the Managerial Employee  functions listed in the article,” not their aspirations or past history.

Case law reveals interpretive challenges. For instance, in S.C. File No. 101795, the Cassation Bench deemed it a “fundamental error of law” for a lower court to assert jurisdiction over an employee’s claim for a supervisor position, arguing that the dispute concerned a supervisory appointment system, not an employee’s rights. Similarly, S.C. File No. 130685 established that claims arising from actions committed while an individual held a supervisory role are governed by the Civil Code, even if they were subsequently transferred to an employee position at the time of dismissal, emphasizing the principle of status at the time of the cause of action.

Burden and Methods of Proof

If an employer objects to a labor dispute claim by asserting the plaintiff is a ‘Managerial Employee ,’ the burden of proof rests squarely on the employer. This reflects the principle of onus probandi, where the party making an assertion must provide evidence. The Cassation Bench consistently holds that supervisory status is a factual matter requiring evidence (S.C. File No. 38811).

Employers commonly use job descriptions and collective agreements as methods of proof.

Job Description

While a job description outlines assigned duties, it may not always align with actual practice. The Cassation Bench has often relied on job descriptions, even for temporary assignments, emphasizing “effective control” and “actual duties performed” over the temporary nature of the role (S.C. File No. 36894). It also focuses on the primary functions of a position, such as coordinating, directing, and controlling, to determine supervisory status, regardless of the employee’s internal directives concerning payment performance (S.C. File No. 42901).

Collective Agreement

Collective agreements are also accepted as evidence, though their interpretative weight can be problematic. In S.C. File No. 39658, the Cassation Bench classified an individual as a Managerial Employee  solely because their work unit was so designated in a collective agreement, even without a job description. This decision overlooked the hierarchy of legal norms, where statutory definitions of employment status (like in Proclamation No. 1156/2011) should generally take precedence over collective bargaining agreements. The classification of an “employee” or “Managerial Employee ” is a matter of law, not negotiation.

Jurisdiction and Applicable Law

When a judicial body empowered to hear labor disputes determines that a plaintiff is a Managerial Employee , it must dismiss the case due to lack of subject matter jurisdiction. The labor tribunal’s authority is limited to disputes falling under labor law; managerial employees are governed by different legal principles. Therefore, if an appellate court reclassifies a plaintiff as a supervisor, it must close the file rather than rule on the merits under other laws (S.C. File No. 41321). This underscores that once an individual is deemed managerial, they fall outside labor law’s specific protections and procedures, becoming subject to the general principles of civil law.

The employment relationship for Managerial Employee s is primarily governed by internal administration regulations. The Cassation Bench holds that such “special law” takes precedence over general civil provisions (S.C. File No. 60489). If internal regulations permit, Labor Proclamation No. 1156/2011 may apply. In the absence of specific regulations or agreements, the Civil Code’s provisions concerning contracts of work (Articles 2512-2593) become applicable, adhering to the principle of subsidiarity of law.

Prescription (Statute of Limitations)

The prescription period for claims made by Managerial Employee s depends on the governing law. If internal regulations indicate the applicability of the Labor and Employee Law, its prescription rules (Articles 163-167) apply. If the Civil Code’s contract of work provisions apply, and they lack specific prescription rules, the Cassation Bench has resorted to general Civil Code provisions (Articles 1677(1) and 1845), establishing a ten-year prescription period for such claims (S.C. File No. 116038). This reflects the legal principle of legal certainty.

Suspension and Its Effects

If a Managerial Employee  is suspended without pay and subsequently dismissed, they are generally not entitled to salary for the suspension period, even if the suspension lacked sufficient reason. The Cassation Bench interprets Civil Code Article 2541(1) narrowly, applying it only when a supervisor is actively employed but prevented from working, not during a formal suspension (S.C. File No. 18307). However, if an internal regulation sets a maximum suspension period and the employer exceeds it, the employer is obligated to pay salary for the excess period (S.C. File No. 37982), demonstrating adherence to internal regulations.

Termination of Employment Contract and Remedies

Unlike ordinary employees under Labor Proclamation No. 1156/2011, unlawfully dismissed Managerial Employee s typically lack the right to reinstatement and are not paid outstanding wages. Their remedy is limited to damages or compensation. Reinstatement is only possible if explicitly permitted by an internal administrative directive. Without such a directive, the Civil Code applies, providing monetary compensation, such as compensation for lack of notice (up to two months’ salary under Article 2570(2)) and compensation for unjust dismissal (up to three months’ salary under Articles 2573 and 2574(2)), along with converted unused annual leave. The Cassation Bench has consistently overturned orders for outstanding wages upon reinstatement for supervisors, clarifying that compensation under Article 2573 is for dismissed, non-reinstated supervisors (S.C. File No. 21329). This highlights a fundamental differentiation of rights and remedies between ordinary and managerial employees.

Exclusions and Special Regimes in Labor Law

The scope of application of labor law often varies significantly across countries, influenced by their unique socioeconomic realities and labor policies. While some jurisdictions might broaden or narrow the definition of ’employer’ to suit their specific contexts, the Ethiopian Labor Proclamation adopts a different approach. Instead of categorizing employers by various designations, it broadly includes all profit-making and non-profit organizations, including administrative bodies, within the definition of ’employer.’ However, it then explicitly excludes certain categories of employees, as detailed in Article 3, from the Proclamation’s coverage. For instance, Article 3(2)(e) excludes government employees, but not necessarily government offices themselves. Therefore, if employees hired by government offices are not covered by the Federal Government Employees Proclamation No. 1064/2010 or another special law, Proclamation No. 1156/2011 would apply.

In determining the applicability of the Proclamation, judicial bodies empowered to hear labor disputes must first establish whether the party who filed the lawsuit is indeed an ’employee’ as defined by the Proclamation. If the answer is negative, they must dismiss the lawsuit for lack of jurisdiction. If affirmative, they then ascertain whether the employee falls under one of the six types of employment relationships excluded by Article 3(2).

Even if an employee meets the definition and is not generally excluded, certain specific provisions of the Proclamation may not apply. For example, rules on notice periods and severance pay do not apply to employees still within their probation period. Similarly, redundancy procedures (Article 29) do not apply to construction workers or organizations with fewer than twenty employees. While the right to strike and lock out is constitutionally recognized for all, it is restricted for employees in essential public services (Article 136(2)). Furthermore, specific chapters governing working hours and weekly rest periods (Articles 61-64 and 69-71) do not apply to commercial agents and representatives. Apprentice workers are also subject to partial applicability, with certain provisions on contract termination, severance pay, compensation, and reinstatement being inapplicable, and their contract termination methods differing from standard provisions.

Domestic Workers

Article 3(2)(d) of Proclamation No. 1156/2011 states that private employment relationships not based on profit-making work are entirely excluded from the Proclamation’s coverage. In this category, female domestic workers (domestic servants) constitute the largest group. Most domestic workers reside in their employers’ homes, and their duties typically include cooking, laundry, errands, childcare, and other additional tasks assigned by their employers. Private drivers and residential guards are also classified as domestic workers.

Proclamation No. 1156/2011 introduced a definition of ‘private service employment,’ which was absent in the previous Proclamation No. 377/96. According to this, “private service employment” means work not based on profit-making activity, providing services within the home for the consumption of the employer and their family, including food preparation, cleaning, nannying, security work, driving, gardening, and similar tasks.

In many countries, domestic workers are largely excluded from ordinary labor law and receive minimal legal protection. In South Africa, while ordinary labor law does not apply to domestic workers, they are covered by unemployment insurance and receive benefits related to pregnancy and illness. In England, although the maximum average of 48 working hours does not apply to domestic workers, they have the right to a certain period of rest per day, a weekly rest day, and paid annual leave.

Studies indicate that approximately one hundred million people worldwide are engaged in domestic work. Domestic workers in various countries, including those who have migrated to other countries, face severe and compounded problems. Low wages, heavy workload, unsuitable living quarters, insufficient food supply, exclusion from society and social security coverage, sexual harassment (sometimes including forced rape), unlimited employer control, lack of legal protection, inadequate attention from the government, insufficient oversight and monitoring of their working conditions, denial of the right to organize, and similar issues remain widespread and unresolved. While the severity of their working conditions may vary slightly from country to country, their employment relationship, in general, has deteriorated to a level where it is classified as servitude rather than mere employment.

The four provisions in the Civil Code (Articles 2601-2604) do not govern all non-profit private service employment relationships, nor are they adequately drafted to provide appropriate protection for domestic workers. For example, Article 2601 merely generally advises the employer to be balanced regarding critical issues such as living quarters, food, working hours, and rest periods, without clearly stipulating enforceable minimum working conditions. Regarding medical treatment, Article 2602 imposes a responsibility on the employer to provide medical care but permits the employer to deduct medical expenses from the employee’s salary.

The exclusion of domestic workers from comprehensive labor law coverage is a global issue reflecting the historical undervaluation of domestic labor and its often informal nature. This creates a vulnerability gap where workers, predominantly women, are deprived of fundamental labor rights and social protections. The concept of decent work, as promoted by the International Labour Organization (ILO), advocates for the extension of labor protections to all workers, including domestic workers, to ensure fair wages, safe working conditions, social security, and freedom of association.

Employees Governed by Special Laws

Article 3(2)(e) of the Proclamation, by listing a few examples of those ‘governed by special laws’ (such as members of the armed forces, police force members, government administrative employees, court judges, prosecutors), and then adding the phrase “and others concerned,” expands the list through interpretation. Therefore, if other employees are proven to be governed by special laws, even if they are not among those listed as examples, the Labor Proclamation will not apply. However, among those mentioned in Article 3(2)(e) as governed by special laws, court judges and prosecutors are appointed, not employed, so even if they were not included in the exclusionary article, the Proclamation would not apply to them.

Employees governed by special laws and the laws applicable to them are numerous and diverse in type and number. Consequently, the law governing the government’s relationship with its employees lacks consistency and has become a ‘basket’ of disparate regulations. Particularly in recent times, laws being enacted are leading to each government office having its own labor and employment law. Due to their sheer number, listing all these special laws is of little benefit. Generally speaking, this special law could be a proclamation issued by the House of Peoples’ Representatives, a regulation issued by the Council of Ministers, or a directive issued by the office itself.

Employees Governed by Proclamations

Among those listed in Article 3(2)(e), government administrative employees, members of the armed forces, and to a limited extent, federal court judges, are governed by proclamations issued by the House of Representatives. The Defense Force Proclamation No. 809/2006 details the recruitment, training, employment, service provision, and termination of service of all members of the Defense Force, as well as their rights and obligations. As stipulated in Articles 5, 6, and 7 of this Proclamation, meeting the appropriate recruitment criteria and successfully completing military training are primary prerequisites for becoming a member of the Force, but the rights and obligations of membership begin when the member enters into an employment contract. The employment lasts for at least seven years, and to extend this period, the member’s consent and the agreement of the Ministry of Defense are required. However, if the member obtains an officer’s rank, they have an obligation to serve for at least ten years. If the member is dismissed upon completion of the seven or ten-year service period, they are paid service payment. If the service is terminated before the period expires, and the reason is not the member’s consent or fault, they receive appropriate compensation. The amount and calculation of both types of payments are determined by a directive issued by the Ministry of Defense.

Regarding judges, the system of appointment and removal is determined by the amended Federal Judges Administration Council Establishment Proclamation No. 684/2002. However, issues concerning assignment, transfer, salary, allowances, medical treatment, and promotion, as well as the code of conduct governing judges, disciplinary complaint procedures, and performance evaluation criteria, are determined by the Judges Administration Council. In addition, the Council itself is empowered to determine the salary, allowances, and other benefits, including the conditions for dismissal, of court officials it appoints (Head of the Council’s Office, Registrars, Assistant Judges, and other officials). Other court employees, commonly referred to as ‘support staff,’ are employed through the President of the Federal Supreme Court (in consultation with the Presidents of the Federal High Court and Federal First Instance Court), and the ordinary government administrative employees’ law applies to these employees.

As we have seen so far, government administrative employees, members of the Defense Force, and to a limited extent, federal court judges, are governed by proclamations issued by the House of Representatives. Among those in this category, government administrative employees constitute the largest share. The Federal Government Employees Proclamation No. 1064/2010 applies to these employees, and its content is similar to Labor Proclamation No. 1156/2011. This Proclamation is intended to govern and regulate the relationship between any government office and its employees. This is understood from its title and the broad definition given to a government office.

According to Article 2(3) of the said Proclamation, a government office means a federal government office established independently by proclamation or regulation and administered by a budget allocated by the government. Article 2(1) states that a government employee means a person permanently employed in a federal government office. From these definitions and the title “Federal Government Employees Proclamation,” it appears that all government office employees, without distinction, except for appointees and elected officials, members of the Defense Force, and security and intelligence forces, are governed by Proclamation No. 1064/2010. However, a closer look at the reality on the ground reveals that this Proclamation is an ‘Administrative Government Employees’ Proclamation, not a ‘Government Employees’ Proclamation.

The distinction between the two reflects the difference between an administrative office and a government office. Administrative offices are those empowered by law to effectively and efficiently carry out their assigned powers and functions, and additionally, they are granted quasi-legislative and judicial authority. However, there are numerous offices established to achieve a specific goal and policy without such authority. These institutions are government offices but not administrative offices. ‘Government administrative employees’ (in English, civil servants) represents employees hired in administrative offices, while ‘government employees’ (in English, public employees or government employees) is a designation for employees hired in all government-established offices.

While all administrative offices are government offices, not all government offices are administrative offices. For example, the Ethiopian Kaizen Institute, the Metal Industry Development Institute, the Justice and Legal Research Institute, the Ethiopian Rural Energy Development and Expansion Center, the Ethiopian National Cultural Center, and similar institutions are government offices administered by a budget allocated by the government, but they are not administrative offices. The employment relationships of numerous employees hired in non-administrative government offices are not governed by Government Employees Proclamation No. 1064/2011. As we will see next, the Proclamation has been replaced by a directive issued by the office and approved by the office’s board. Proclamation No. 1064/2011 has also been made partially or wholly inapplicable to certain employees of administrative offices. For example, for employees of the Revenues and Customs Authority, the Proclamation has been entirely replaced by a regulation issued by the Council of Ministers, and high-level experts in some administrative offices have also been excluded from the Proclamation’s coverage. We will briefly explore these employees excluded from both Proclamation No. 1156/2011 and Proclamation No. 1064/2010, and the law that effects the exclusion, below.

This complex categorization of government employees highlights the concept of fragmentation of labor law. Instead of a unified legal framework, different groups of public sector employees are governed by distinct laws, regulations, and directives. This can lead to inconsistencies in rights and protections, and challenges in legal interpretation and enforcement. The rationale often cited for such fragmentation is the unique nature of certain public services or institutions, requiring tailored legal regimes. However, it can also create a lack of legal coherence and make it difficult for employees to understand their rights.

Employees Governed by Regulations

Employees governed by regulations issued by the Council of Ministers include the following:

• Employees of the Revenues and Customs Authority (Regulation No. 155/2000)
• Employees of the National Bank of Ethiopia (Regulation No. 157/2001)
• Security members of Federal Correctional Facilities (Regulation No. 137/1999)
• Members of the Federal Police Commission (Regulation No. 86/1995 and partially by Proclamation No. 702/2004)
• Federal Prosecutors (Regulation No. 44/1991) and Special Prosecutors (Regulation No. 72/1993)

Before the issuance of Regulation No. 155/2000 and Regulation No. 157/2001, employees of the Revenues and Customs Authority were governed by the ordinary Government Employees Proclamation No. 515/1999, while employees of the National Bank were covered by Labor Proclamation No. 1156/2011. The Council of Ministers issued these regulations under the legislative delegation of authority it received from the House of Peoples’ Representatives through Proclamation No. 587/2000 and Proclamation No. 591/2000. The content of both regulations shows a close resemblance between Regulation No. 155/2000 and Proclamation No. 515/1999, and between Regulation No. 157/2001 and Proclamation No. 1156/2011. Regarding employees of the Revenues and Customs Authority, in matters not covered by the regulation, Government Employees Proclamation No. 515/1999 and Federal Government Employees Disciplinary Procedure and Grievance Handling Regulation No. 72/1994 apply.

Regulation No. 157/2001 entirely excludes the provisions concerning collective relations found in Part Eight of Proclamation No. 1156/2011 (Articles 123-135). Part Nine (Labor Disputes), Part Eleven (Implementation of Labor and Employee Affairs Proclamation), and Part Twelve (Penalties) of the Proclamation are also not included in the regulation. Among those found in Part Ten, the prescription provisions have undergone fundamental changes and are included in the regulation, but the provisions concerning priority rights for debt claims are silently omitted.

Employees Governed by Directives

Government office establishment proclamations increasingly make the government’s relationship with its employees a matter determined by ‘internal directives.’ This approach is particularly common in government research, study, and training centers, but it has gradually spread to administrative offices as well. For example, the Ethiopian Civil Aviation Authority, the National Educational Assessment and Examinations Agency, the Ethiopian Commodity Exchange Authority, the Ethiopian Broadcast Authority, the Pharmaceutical Supply Agency, and many other authority offices administer their employees through internal directives they issue themselves, rather than through a proclamation issued by the House of Representatives. For these directives to have legal effect, they do not follow a separate directive issuance procedure beyond being approved by a higher body. While some proclamations explicitly state that the approving higher body is the office’s supreme board, in others, its identity is obscured, and the directive is stated to be approved by ‘the government.’

Government temporary employees are also classified under employees governed by directives. The Temporary Employees Employment Implementation Directive issued by the former Civil Service Agency in November 2000 E.C. was intended to apply to all federal government offices. The overall content of the directive is filled with provisions that diminish rights. For example, a temporary employee who works beyond regular working hours is not paid monetary compensation; instead, they may be granted compensatory leave. Annual leave for the first year is fourteen days, and for subsequent years, one day is added for each year. When a rights violation occurs, a complaint is filed through the regular grievance handling system, and if it does not yield results, the ordinary court has the jurisdiction to hear the case on appeal. In S.C. File No. 81963 (Applicant Ato Asfaw Gudeta and Respondent Government Housing Agency, December 3, 2005 E.C., Vol. 14), a legal interpretation was given that the Federal High Court has jurisdiction.

The proliferation of directives for governing public sector employment raises concerns about democratic accountability and transparency. Unlike proclamations and regulations, which typically undergo more rigorous legislative scrutiny, directives can be adopted with less public oversight. This can lead to a less standardized and potentially less protective regime for employees, as their rights become subject to internal administrative decisions rather than comprehensive legislative frameworks.

Teachers

In Ethiopia, education services are provided by the private sector, the federal government, and regional governments, including the Addis Ababa and Dire Dawa city administrations. So far, the government has not intervened in the pre-primary education sector. Education service provision from primary to higher education is offered by both the government and the private sector. While the nature of working conditions for teachers engaged in teaching and research across the country exhibits more similarities than differences, the legal framework governing their employment relationships lacks consistency. One source of this inconsistency is the federal system, and the division of employer roles between the government and private sectors has led to the creation of various laws that prioritize the employer rather than the employee. As the content of these laws falls outside the scope of this book, only their details are provided below:

• Teachers employed in kindergartens, primary and secondary schools, technical and vocational training institutions, and higher education institutions within the private sector are covered by the ordinary Labor Proclamation No. 1156/2011.
• The administration and employment of teachers in public or government schools providing education from Grade 1 to Grade 10 are determined by regulations issued by regional government councils and city administration councils accountable to the federal government.
• Matters concerning the employment, administration, and disciplinary procedures of all academic staff, including those engaged in teaching and research in government universities, as well as administrative and technical support staff, are determined by internal regulations issued by each university.
• Teachers and trainers employed in technical and vocational training institutions under federal and regional governments are governed by internal directives issued by the institution and approved by a higher body.

This fragmented legal landscape for teachers highlights the challenges of achieving uniformity and equity in labor rights across different sectors and levels of government. It underscores the need for a more harmonized approach to ensure consistent protections and benefits for all educators, regardless of their employing institution.

The Necessity of Special Laws

According to Article 3(2)(e), the primary criterion for imposing a limitation on the applicability of the Proclamation is the existence of a special law governing the employment-based relationship. In this regard, when a dispute is presented, courts must first ascertain not only the existence of a special law but also that this special law is applicable to an employment-based relationship. In the dispute between Applicant W/ro Amonash Gebre and Respondent Akaki Spare Parts and Hand Tools S.C. Employees’ Money and Savings and Credit Cooperative PLC (May 16, 2003 E.C., S.C. File No. 59579, Vol. 11), the decision rendered by the Cassation Bench makes us understand that a special law that does not govern an employment-based relationship does not exclude the Proclamation from applicability.

The Federal First Instance Court, which first heard the case, merely by observing that the respondent was a cooperative institution, concluded that the applicable laws were Proclamation No. 147/91 and 402/96. It then explained that according to Article 49(3) of the first proclamation and Article 8 of the second proclamation, disputes should be resolved through conciliation, and if not possible, through arbitration, and if there is a grievance against the decision of these bodies, an appeal could be filed with the High Court. It then dismissed the lawsuit filed by the applicant by ruling that it lacked subject matter jurisdiction. The Federal High Court, to which an appeal was filed, without overturning the lower court’s decision, closed the file by referring the case to arbitrators.

The Cassation Bench was able to rectify the legal errors made by the lower courts by analyzing and correlating the provisions of Proclamation No. 147/91 and 402/96, which formed the basis of the lower courts’ decisions, with the provisions of Proclamation No. 1156/2011. As stated in the Cassation Bench’s decision, the matters to be heard by arbitration in the said proclamations were disputes concerning the organization’s structure and its operational procedures or performance, not labor disputes arising between the cooperative and the employees it employs. Therefore, in the absence of a special law governing the employment contract relationship between the cooperative and the employees it employs, Proclamation No. 1156/2011 always applies.

This case illustrates the principle of specific vs. general legislation and the importance of proper jurisdictional analysis. The Cassation Bench correctly determined that the special laws governing cooperatives were for internal disputes, not employment disputes. Therefore, the general labor law (Proclamation No. 1156/2011) applied by default, as there was no specific special law governing the employment relationship itself. This reinforces the idea that an exclusion from general labor law requires a clear and direct legislative intent to create a separate, applicable legal regime for that specific employment relationship.

Government Employee or Government Office?

If the employer institution being a government office is taken as a decisive point for applying Article 3(2)(e), it will lead us to a wrong conclusion. To understand the gap created in this manner, it is useful to examine the dispute and the decision rendered by the Cassation Bench in S.C. File No. 14414 (Applicant Gimbi Town Administration Office and Respondent W/ro Merertu Fekadu, October 1, 1998 E.C., Vol. 2). In this case, the respondent filed a lawsuit in the Gimbi Woreda Court, claiming that the applicant had unlawfully suspended her in violation of Proclamation No. 42/85, and requesting that she be paid damages and reinstated. The court ruled that she should be paid salary from the time of her suspension and reinstated, or otherwise be paid compensation and severance pay and dismissed. The decision was upheld by the Wollega High Court, and the Oromia Supreme Court, to which an appeal was filed, closed the file, stating that it lacked jurisdiction to hear the case as the High Court’s decision was a final judgment. The appeal filed with the regional Cassation Bench also yielded no result.

Finally, the Federal Cassation Bench, to which a cassation appeal was filed by the applicant, claiming that a fundamental error of law had been committed in the lower courts’ decisions, took up the issue of whether the relationship between the applicant and respondent was covered by Proclamation No. 42/85. To provide an answer, the Cassation Bench proceeded by examining whether the applicant, based on its identity, met the definition of an employer in the terms of the law.

Accordingly, in the terms of Article 2(1) of Proclamation No. 42/85, for an entity to be classified as an employer, it must be an individual or organization that employs a worker in accordance with the Proclamation. ‘Organization,’ in turn, is defined in Article 2(2) of Proclamation No. 42/85 as an institution established to carry out commercial and industrial, construction, or other lawful activities. Viewed in this manner, the Cassation Bench stated that it could be understood from the applicant’s name itself that it was a government institution carrying out public service work. It then concluded, citing Article 3(2)(e) of this Proclamation, that Proclamation No. 42/85 does not apply because government administrative employees are governed by a special law.

At this point, it is important to note that two distinct points that should have been kept separate were conflated. In the decision, there are two reasons given for reaching the conclusion that the Proclamation does not apply: first, the applicant, being a government institution, should not be called an employer in the terms of the law; second, the respondent, being a government employee, is not covered by Proclamation No. 42/85. In determining the applicability of the Proclamation, the prior question is whether the individual who filed the labor dispute is an ’employee’ or not. If the entity referred to as an employer does not meet the definition of an employer, there is no need to proceed to other exclusionary articles. This is because, from the outset, an employment contract cannot be established with an institution that does not meet the definition of an employer.

Article 3(2)(e) should be considered only after it has been established that the individual who filed the labor dispute is an employee who has established an employment contract with the employer. This exclusionary article explicitly discusses ’employees governed by special laws,’ not ‘institutions governed by special laws.’ In other words, whether the applicant is a government institution or not is not a decisive point. As stated in the Cassation decision, the respondent’s argument was that “since I am not covered by the Government Employees Proclamation, the Labor and Employee Proclamation should apply.” The applicant’s employees were not covered by the Government Administrative Employees Proclamation. Indeed, while the Oromia Regional Government Administrative Employees Proclamation No. 63/94 classified employees in the applicant institution as government administrative employees, it was enacted after the respondent filed her lawsuit. The respondent argued, based on this fact, that “since the Proclamation was issued after I filed my lawsuit, it does not apply retroactively.” Although the Cassation Bench did not take a clear stance on whether the respondent was an employee governed by a special law, it concluded that “even if she is not covered by a special law, since the applicant is not an organization or employer,” the relationship between the applicant and respondent is not covered by Proclamation No. 42/85.

The easiest way to determine the existence or non-existence of a special law governing an employment-based relationship is to identify and present this so-called special law. Conversely, taking the identity of the institution, for example, its being a government office, as a criterion will lead to a wrong conclusion. The following Cassation files are evidence that it is wrong to conclude that the employees of an institution are not covered by the Labor and Employee Proclamation merely by looking at the institution’s name or identity:

• Applicant Addis Ababa Water and Sewerage Authority and Respondent Ato Admasu Demisachew, November 8, 2002 E.C., S.C. File No. 41767, Vol. 9
• Applicant Addis Ababa Water and Sewerage Authority and Respondent Fikru Kebede, February 3, 2002 E.C., S.C. File No. 49239, unpublished
• Applicant Government Houses Agency and Respondent W/t Almaz Hussein, July 30, 2001 E.C., S.C. File No. 39567, unpublished
• Applicant Ethiopian Roads Authority and Respondent Misganu Beyene, July 7, 2001 E.C., S.C. File No. 41694, unpublished
• Applicant Ministry of Work and Urban Development, Afar Regional State Tendaho Housing Development Project Office and Respondent Usman Hassen, January 19, 2001 E.C., S.C. File No. 38250, unpublished

As clearly seen in these files, the employer entity is an administrative office with designations such as authority, agency, and office. However, in all these files, the disputes were adjudicated under the Labor and Employee Proclamation. Furthermore, the Cassation Bench, in S.C. File No. 46075 (Applicant Ato Nigussie Hadush and Respondent Mekelle University Dean of Students, December 25, 2005 E.C., Vol. 11), gave a legal interpretation that if an employee hired in a government institution is not covered by the Government Employees Proclamation, the Labor and Employee Proclamation should be applied to fill this gap. S.C. File No. 46075 not only rectifies the error made by the Cassation Bench in S.C. File No. 14414 but, given the time difference in legal interpretation between the two files, it should be interpreted as having the effect of overturning the latter file (S.C. File No. 14414).

This section illustrates the concept of judicial development of law and the courts’ role in interpreting and applying statutes to unforeseen circumstances or to rectify previous errors. The Cassation Bench’s later decisions demonstrate a shift towards a more pragmatic approach, ensuring that employees in government institutions are not left without legal protection simply due to the institution’s classification, especially when no specific special law governs their employment. This aligns with the principle of access to justice and preventing legal vacuums.

Independent Contractor

Article 3(2)(f) states that a person who performs work for a fee in their own business or under their own professional responsibility does not have an employment-based relationship. The main point that distinguishes an employee from an independent contractor is that an employee performs work under the employer’s direction, while an independent contractor performs work under their own responsibility without the employer’s control. When examining the definition given to an independent contractor in Civil Code Article 2610, it is a person who works independently under their own responsibility to achieve a result, and therefore, they cannot have an employment-based relationship in the terms of Article 4(1) of the Proclamation.

The distinction between an employee and an independent contractor is a critical issue in labor law, as it determines the applicability of numerous labor protections. This distinction is often based on the control test, integration test, and economic reality test. The control test, as mentioned, focuses on the degree of control the hiring party exercises over the manner and means of work. The integration test examines whether the worker’s services are integral to the hiring party’s business. The economic reality test considers whether the worker is economically dependent on the hiring party. Misclassifying an employee as an independent contractor can lead to significant legal and financial consequences for employers, as it deprives workers of rights such as minimum wage, overtime pay, social security benefits, and protection against unfair dismissal.

Exclusions and Special Regimes: Religious, Charitable, and International Organizations in Ethiopian Labor Law

The application of labor law is rarely universal; most jurisdictions carve out specific exclusions based on the nature of the employer, the type of work, or the unique status of certain entities. This chapter delves into the nuanced exclusions within Ethiopian labor law, particularly concerning employees of religious institutions, charitable organizations, and international bodies, and the legal principles that underpin these distinctions.

Religious Institutions’ Employees

Labor disputes involving individuals providing religious services have historically presented significant challenges for the courts in Ethiopia. Religious institutions found themselves spending considerable time litigating with their service providers, diverting resources from their daily spiritual activities. This issue also raised constitutional questions related to freedom of religion and the fundamental principle of separation of church and state. The applicability of the Labor Proclamation to individuals providing religious services was a point on which many courts held divergent and inconsistent positions over time.

The contentious issue finally found resolution in a landmark decision by the Cassation Bench on May 4, 1998 E.C., in S.C. File No. 18419. This decision became a foundational and frequently cited precedent for subsequent similar cases, not only for lower courts but also for the Cassation Bench itself. The dispute originated from a termination of an employment contract between the applicant, Hamere Work St. Mary Church Parish Council Office, and the respondents, including Deacon Mihret Birhan (6 individuals).

The respondents had filed a lawsuit in the Federal First Instance Court, claiming that they had been unlawfully dismissed from their spiritual service employment with the applicant institution and sought reinstatement. The court, applying the provisions of Proclamation No. 42/85, concluded that the dismissal was unlawful and ordered their reinstatement. The Federal High Court, on appeal, upheld the lower court’s decision. However, the Cassation Bench, after reviewing the case, unequivocally clarified that disputes arising from spiritual service relationships are not covered by Proclamation No. 42/85, and that labor dispute bodies lack the subject matter jurisdiction to hear and decide such cases.

As stated in the Cassation Bench’s decision, labor dispute tribunals lack the authority to hear and decide disputes arising from spiritual service relationships under Proclamation No. 42/85. Instead, such disputes are to be resolved through the mechanisms established for resolving disagreements within religious institutions themselves. The Cassation Bench’s legal interpretation effectively categorized employees within religious institutions into two groups:

1. Employees providing spiritual services: These are individuals whose services are directly connected to the religious institution’s faith and cannot be separated from it.
2. Employees whose services are not intrinsically linked to the faith: These are individuals performing administrative, income-generating, or charitable functions.

According to the legal interpretation in S.C. File No. 18419, disputes arising from the spiritual service relationships of employees in the first category cannot be viewed separately from the faith itself. Therefore, delving into these employment relationships would entail delving into matters of faith, which would contravene Article 11 of the FDRE Constitution, which stipulates the separation of church and state and prohibits government interference in religious affairs. Consequently, the Council of Ministers, under Article 3(3)(b) of Proclamation No. 42/85, is empowered to issue regulations to exclude the Labor Proclamation’s applicability only to employees in the second category, not to those providing spiritual services. If it were to issue regulations for the first category, it would conflict with the constitutional principle of separation of church and state.

After two decades of silence, the Council of Ministers, exercising its authority under the Proclamation, finally issued the long-awaited regulation on February 30, 2007 E.C. This regulation, titled “Council of Ministers Regulation No. 342/2007 E.C. on Employment Relationships of Religious or Charitable Organizations,” limited the Proclamation’s applicability in two ways: first, certain employees were excluded from the Proclamation due to the spiritual nature of their services; second, even those covered by the Proclamation were denied the right to collective bargaining on matters such as wage increases, various benefits, and incentives.

Council of Ministers Regulation No. 342/2007 provided a legal foundation for the Cassation Bench’s stance, effectively codifying the court’s legal interpretation into written law. Article 3(1) of the Regulation explicitly states that the Labor Proclamation does not apply to individuals providing spiritual services within religious organizations, mirroring the language and substance of the legal interpretation in S.C. File No. 18419. Furthermore, Article 2(1) of the Regulation’s definition of spiritual service is directly copied from S.C. File No. 18419: “spiritual service” means “performing only spiritual functions directly connected to the faith within a religious organization.”

Regulation No. 342/2007 not only identifies religious organization employees to whom the Proclamation does not apply but also delineates those to whom it does. Accordingly, employees engaged in income-generating activities and administrative or charitable functions within religious organizations are included within the scope of Labor Proclamation No. 1156/2011. However, if an individual performs a mixed role, combining spiritual and administrative or spiritual and charitable functions, the Proclamation does not apply. Regarding collective bargaining, religious organizations are only obliged to negotiate on all matters with employees engaged in income-generating activities. They are not compelled to negotiate on wage increases, various benefits, incentives, and similar issues with other employees to whom the Proclamation applies.

What is Spiritual Service? And Its Criterion?

The legal interpretation in S.C. File No. 18419 and subsequent Cassation Bench decisions clarified that not all employees of religious institutions are excluded from the Labor Proclamation, but only those performing spiritual or religious functions. These employees are explicitly excluded by Council of Ministers Regulation No. 342/2007. But what constitutes spiritual or religious service? What is the criterion?

The criterion applied by the Cassation Bench in S.C. File No. 18419 defines employees performing religious or spiritual services as those “whose service is directly connected to the religious institution’s faith and cannot be separated from it.” This exact phrasing, without alteration, became the formal definition of spiritual service in Regulation No. 342/2007.

To determine the existence of a direct connection between the service (job functions) and the faith, the role of the plaintiff within the religious institution, the functions they perform, and the place of these functions within the faith are some of the points that need to be examined. While the Cassation Bench has, in some cases, conducted such an examination and rendered decisions, in others, it has concluded that the Proclamation does not apply even in the absence of clear indicators of spiritual service. For example, in S.C. File No. 47806 (Applicant Hohtesemay St. Mary Church Parish Council Office and Respondent Deacon Ayalew Adisu, December 20, 2002 E.C., Vol. 9), the Cassation Bench took the stance that the relationship between the applicant and respondent was religious, based on the respondent’s claim in his lawsuit that he was serving as a deacon.

Similarly, in S.C. File Nos. 21439 and 51071, a decision was rendered that the service was spiritual, taking into account the job functions. However, in S.C. File Nos. 38331, 41508, 20070, and 21086, the introduction to the Cassation Bench’s decision merely states, “the respondent provides spiritual service…” without indicating by what criterion it was deemed spiritual, or what the work and functions entailed.

In S.C. File No. 34440 (Applicant Menbere Patriarchate General Office and Respondent Megabi Mistir Mezgebu Belayneh, October 06, 2001 E.C., unpublished), the definition of ‘direct connection’ emerged as a distinct central issue. However, the Cassation Bench chose to evade the challenging question rather than provide an answer. The case originated from the respondent’s claim that he was serving as a teacher of Qine (a form of Ethiopian Orthodox Church poetry) and Aqwaqwam (a form of church chant). The applicant, in its response, raised an objection that the respondent’s service was spiritual and therefore not covered by the Proclamation. While the objection was rejected by the court that first heard the case and by the appellate court, the Cassation Bench overturned the lower courts’ decisions, accepting the applicant’s argument that the service of a Qine teacher is spiritual and therefore the case should not be heard by labor dispute bodies. The court that first heard the case had rejected the applicant’s objection by concluding that the respondent’s service was not a direct spiritual work connected to the religious institution.

In the cassation proceedings, the appropriateness of the case being heard in an ordinary court was taken as a central issue. To resolve this issue, the question of whether the service of a Qine teacher, in terms of its type and nature, has a direct connection to the religion, should have been answered first. Although the Cassation Bench touched upon this fundamental question, it passed over it without giving a legal interpretation. It is useful to look at what was stated in the commentary on this point:

“The respondent, in his response to this Cassation Bench, did not raise an argument that the service of a Qine teacher is not a direct spiritual work connected to the religious institution. Therefore, the respondent’s work as a Qine teacher was not found to be contentious as a direct spiritual work.”

The fact that this fundamental point, which had been contentious since the lower court and on which the applicant and respondent clearly differed and argued, was simply dismissed as “not found to be contentious” and a decision rendered, suggests that the Cassation Bench chose to evade the challenging question rather than confront it. To determine whether the functions performed by a person serving in a religious institution have a direct connection to the faith, it is necessary to view these functions through the lens of the faith. This not only raises a constitutional question of separation of church and state but also requires sufficient and relevant religious knowledge. If an ordinary court takes a stance that a service classified as spiritual by the religious institution is not spiritual, the constitutional question becomes prominent. This is why the issue is considered challenging.

Jurisdiction

A key point emphasized by the Cassation Bench is that labor dispute bodies lack subject matter jurisdiction to hear and decide disputes arising from spiritual service relationships. If the fundamental issue is jurisdiction, then whether or not an objection is raised by the litigants on this point, the judicial body to which the case is presented must sua sponte (on its own motion) declare that it lacks jurisdiction and close the file. (Applicant Global Computing Solutions PLC and Respondent Ato Dawit Moges et al. (7 persons), S.C. File No. 36983, December 2, 2001 E.C., unpublished). In S.C. File No. 18419, there is no indication that an objection regarding the lower courts’ jurisdiction was raised.

However, unless the party who filed the lawsuit explicitly states that they perform religious functions, or the religious institution presents supporting evidence and arguments, any decision by the court regarding its jurisdiction will be based on speculation and assumption rather than established facts. Given the existence of various religious institutions in the country, the content of spiritual or religious service will inevitably vary according to each institution. Therefore, the type of service should not be a point on which the court takes judicial notice.

In the dispute between Applicant Mergeta Lisanework Bizuneh and Respondent Patriarchate General Office (April 30, 2000 E.C., S.C. File No. 32229, Vol. 6), the applicant clearly stated in his lawsuit that he was the manager of the Ogaden Diocese in the respondent’s office. In the cassation proceedings, the Cassation Bench stated that the lower court lacked jurisdiction but did not close the file. In the case file, no objection was raised by the respondent that the applicant performed religious functions. The fact that the appellate court, the Employer-Employee Arbitration Board that first heard the case, and the Cassation Bench did not sua sponte close the file makes it difficult to conclude that they accepted that the applicant did not perform religious functions. However, the respondent’s silence by not raising an objection is appropriate. A court should sua sponte declare that it lacks jurisdiction and close the file only if the party who filed the lawsuit explicitly states in their complaint that they were providing spiritual service or were employed for that purpose. In this regard, the legal interpretation given in S.C. File No. 36983 is not appropriate for a jurisdictional question, especially one centered on spiritual service, arising in connection with the scope of the Proclamation’s applicability.

This section highlights the tension between a court’s duty to determine its own jurisdiction and the principle of judicial restraint. While courts must ensure they have jurisdiction, they should generally rely on the parties’ pleadings and evidence to establish facts, rather than making assumptions about the nature of the work, especially in sensitive areas like religious service.

Charitable Organizations’ Employees

Regulation No. 342/2007, concerning the relationships established by charitable organizations, attempts to delineate which employees are covered by the Proclamation, but does so in a confusing manner rather than clearly indicating which employees are excluded. As stated in Article 4, Labor Proclamation No. 1156/2011 applies to the following employees of charitable organizations:

• Employees engaged in income-generating activities within organizations established by charitable organizations for income generation.
• Employees engaged in administrative or charitable functions within charitable organizations.

Article 2(2) of the Regulation defines a charitable organization as an organization or association established to provide humanitarian, social, or development services to the public without a profit-making objective. ‘Income-generating work’ is defined as the production or distribution of goods, provision of services, or other similar income-generating work performed under an organization established by a religious or charitable organization for income generation. However, the Regulation does not specify which functions constitute administrative and charitable activities. This ambiguity inevitably makes it challenging for courts to identify employees of charitable organizations who are excluded from the Proclamation.

A charitable organization establishes an internal structure that enables it to effectively achieve its objectives. It employs individuals with diverse professions, skills, and knowledge. It is impractical to divide these employees into those engaged in charitable activities and those not. Administrative work also varies depending on the organization’s objective. For example, in an organization established to distribute aid, which employees are engaged in charitable activities? Is it only those who distribute the aid? Or can we say that other employees are also engaged in this activity? The driver who transports the aid, the assistant, the mechanic, the cashier who pays loaders and unloaders, the warehouse staff where the aid is stored, the warehouse guard, and the expert who conducts a survey before the aid is distributed, all play a role in achieving the charitable objective for which the organization was established.

In summary, while the applicability of the Labor Proclamation to employees of charitable organizations appears to be partially limited by Article 4 of Regulation No. 342/2007, a deeper examination of the provision’s content leads to the conclusion that no employee is actually excluded from the Proclamation. However, a clear limitation has been imposed on the implementation of the Proclamation regarding collective bargaining. As stated in Article 6 of the Regulation, charitable organizations are not obliged to engage in collective bargaining with employees engaged in administrative or charitable work concerning wage increases, various benefits, incentives, and similar matters. Since employees in income-generating organizations mentioned in Article 4(1) are not included in Article 6, the limitation does not preclude the obligation to engage in collective bargaining with these employees on the said matters.

This section highlights the issue of regulatory ambiguity and its practical implications. When legal definitions are unclear or incomplete, it creates uncertainty for both employers and employees, leading to potential disputes and difficulties in applying the law consistently. The limitation on collective bargaining rights for certain categories of employees within charitable organizations also raises concerns about labor rights disparities and the potential for undermining freedom of association.

International Organizations and Foreign Diplomatic Missions

Article 3(3)(a) of the Proclamation states that its applicability may be determined not to apply by a Council of Ministers’ regulation or by international agreements signed by Ethiopia. The provision itself does not explicitly or implicitly exclude any employee. So far, the Council has not issued any exclusionary regulation under its authority, nor has the scope of the law’s applicability been limited by international agreements.

In excluding the applicability of the Labor Proclamation to international organizations and foreign diplomatic missions, immunity from suit holds the primary position. Cases that bypass this protection and proceed to ordinary litigation are negligible. Therefore, given the very narrow circumstances under which the Proclamation would apply to these organizations and missions from the outset, it would not be necessary to sign an international agreement or issue a Council of Ministers’ regulation to exclude the Proclamation’s applicability, as stated in Article 3(3)(a).

A bilateral or international agreement becomes necessary to grant immunity from suit. A bilateral agreement granting immunity from suit deprives the country’s courts of jurisdiction. Therefore, if there is a bilateral agreement signed between the main organization and Ethiopia that grants immunity from civil or criminal prosecution to an intercontinental or international organization operating a branch in Ethiopia, the organization’s employees cannot file labor disputes in Ethiopian courts. (Applicant Ato Alemayehu Mekonnen and Respondent Desert Locust Control Organization for Eastern Africa, December 21, 2008 E.C., S.C. File No. 117390, Vol. 19).

The principles and values of immunity from suit for international organizations and foreign diplomatic missions are rooted in universally accepted governing rules that have evolved over time, and these are categorized under the legal branch known as Customary International Law. While most rules concerning immunity from suit have been replaced by international agreements over time, customary international law still applies to matters not covered by these agreements. Here, immunity from suit does not mean that the door is completely closed to filing lawsuits against these organizations and institutions under any circumstances. In very narrow circumstances, immunity from suit does not serve as a defense. The detailed implementation of these circumstances is beyond the scope of this book. However, we will generally examine the international agreements issued concerning immunity from suit in various types of relationships, including labor and employment matters.

International Organizations

An international agreement granting immunity from suit to the United Nations was issued in 1946. This agreement, known as the Convention on the Privileges and Immunities of the United Nations, stipulates the Organization’s immunity from suit in Article 2, Section 2, as follows:

“The United Nations, its property and assets wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity. It is, however, understood that no waiver of immunity shall extend to any measure of execution.”

Indeed, even before the issuance of this agreement, the United Nations Charter (UN Charter) recognized the Organization’s immunity from suit and privileges. Article 105 of the Charter, which grants these rights, is general in content (not containing detailed implementation matters) and links immunity from suit with the Organization’s objectives and functions. The international agreement is considered a detailed implementing instrument of Article 105 of the Charter. Various international institutions under the United Nations, like their parent organization, also enjoy immunity from suit, and the Convention on the Privileges and Immunities of the Specialized Agencies, issued in 1947, grants them immunity from being sued in courts in various countries.

Diplomatic Missions

Foreign diplomatic missions include embassies, permanent representative offices, consular offices, honorary consular offices, and similar entities. These are representatives of a sovereign state. The immunity from suit is granted to the state they represent. Customary International Law fully distinguishes between relationships of a purely commercial nature and private acts from national, sovereign, or governmental functions. States (and therefore diplomatic missions) enjoy immunity from suit only in the latter type of functions. The applicable international agreement concerning the immunity from suit of states (and therefore diplomatic missions) is the United Nations Convention on Jurisdictional Immunities of States and Their Property, issued in 2004. In addition to the general provisions it contains concerning immunity from suit, it includes a special provision determining the implementation of the right during employment relationships.

Execution of Judgment

Even if a court hears a case on its merits and renders a decision against international organizations and diplomatic missions, either by their own waiver or in narrow circumstances where their immunity from suit does not apply, the decision does not become immediately enforceable. Immunity from Suit and Immunity from Execution are both considered separately. According to the international agreements mentioned above and the widely accepted principles of customary international law, a judgment rendered against these entities will not be executed unless various preconditions and criteria are met. For example, execution cannot proceed against property essential for the organizations’ purposes. Furthermore, if the judgment was rendered in violation of international laws and agreements concerning immunity from suit, there will be no basis for its enforcement.

In a labor dispute case heard in cassation (Applicant Ato Alemayehu Olana and Respondent United Nations Development Programme (UNDP), November 10, 2007 E.C., S.C. File No. 98541, Vol. 17), a request to enforce a judgment rendered in the respondent’s absence was rejected. The respondent is an international institution under the United Nations. According to Article 3, Sections 3 and 4 of the Convention on the Privileges and Immunities of the Specialized Agencies, these institutions are granted immunity from being sued or subjected to execution in court. Therefore, the denial of the judgment’s enforcement is consistent with the provisions of the agreement.

However, in S.C. File No. 98541, the reason for rejecting the execution request was not the fundamental principle of immunity from execution, but Article 3(3)(a) of the Proclamation. Yet, Article 3(3)(a) merely indicates the possibility that the Labor Proclamation may not apply to international organizations and diplomatic missions; it does not directly or indirectly exclude its applicability. There is no agreement signed by Ethiopia or a regulation issued by the Council of Ministers concerning this. Furthermore, the utility of the provision is before, not after, judgment. While both points are important for understanding the correct content of the provision, they are not necessary for determining the Proclamation’s applicability to the said organizations. Immunity from suit must be addressed before discussing Article 3(3)(a). A labor dispute lawsuit filed under the Proclamation will inevitably be dismissed due to the organizations’ immunity from suit, leaving no issue to be addressed by the provision.

This analysis highlights the complex interplay between domestic labor law and international law, particularly the principles of sovereign immunity and diplomatic immunity. These immunities are designed to protect the functioning of states and international organizations, but they can create a challenge for individuals seeking to enforce their labor rights. The distinction between immunity from suit (preventing a case from being heard) and immunity from execution (preventing a judgment from being enforced) is crucial, as a waiver of one does not automatically imply a waiver of the other. The Cassation Bench’s reasoning in S.C. File No. 98541, while reaching the correct outcome, demonstrates a potential misapplication of the domestic exclusion provision in place of a direct reliance on international immunity principles.

Domestic Workers: A Critical Examination of Their Employment Status Under Ethiopian Law

Introduction

The landscape of employment law often grapples with the unique circumstances of certain labor sectors. Among these, the realm of domestic work presents a particularly complex challenge, often falling outside the traditional scope of labor legislation designed for profit-oriented enterprises. This chapter delves into the specific legal position of domestic workers under Ethiopian employment law, analyzing how the Labour Proclamation No. 1156/2011 addresses their unique employment relationship, and comparing it with international approaches. We will also explore the pervasive challenges faced by domestic workers globally and the limited protections offered by existing legal frameworks.

The Scope of Ethiopian Labour Law and Domestic Workers

Article 3(2)(d) of Labour Proclamation No. 1156/2011 explicitly states that private employment relationships not based on profit-making activities are not fully covered by the Proclamation. Within this category, female domestic workers constitute the largest group. The majority of these workers reside in their employers’ homes, with their duties encompassing cooking, laundry, errands, childcare, and various other tasks assigned by their employers. Private drivers and residential guards are also classified under domestic workers.

Proclamation No. 1156/2011 introduced a new definition for ‘private domestic employment’ that was absent in the previous Proclamation No. 377/96. Accordingly, ‘private domestic employment’ is defined as:

“Work not based on profit-making activity, providing services within a household for the consumption of the employer and their family, including food preparation, cleaning, nannying, security work, driving, gardening, and similar tasks.”

International Context and Challenges Faced by Domestic Workers

Domestic workers in many countries are largely excluded from standard labor laws and receive minimal legal protection. For instance, in South Africa, while standard labor law does not apply to domestic workers, they are included in unemployment insurance coverage and are entitled to benefits related to pregnancy and illness. In the United Kingdom, the average maximum 48-hour work week does not apply to domestic workers, but they are entitled to daily rest periods, weekly rest days, and paid annual leave.

Studies indicate that approximately one hundred million people globally are engaged in domestic work. These workers, including those who have migrated to other countries for employment, face severe and compounding challenges. Low wages, heavy workloads, inadequate living quarters, insufficient food provisions, exclusion from society and social security coverage, sexual harassment (sometimes leading to forced rape), unlimited employer control, lack of legal protection, insufficient attention from governments, inadequate supervision of their working conditions, denial of the right to organize, and similar issues remain widespread and unresolved. While the severity of their working conditions may vary slightly from country to country, their employment relationship often transcends mere employment, reaching a level that can be characterized as servitude.

Limitations of the Ethiopian Civil Code

The four provisions found in the Civil Code (Articles 2601-2604) do not govern all non-profit private service employment relationships, nor are they adequately formulated to provide proper protection for domestic workers. For example, Article 2601 generally advises employers to be reasonable regarding crucial aspects such as living space, food, working hours, and rest periods, but it fails to explicitly define minimum enforceable working conditions. Article 2602, while imposing a responsibility on the employer to provide medical treatment, permits the employer to deduct the cost of such treatment from the worker’s wages.

Conclusion

The legal framework surrounding domestic workers in Ethiopia, while having seen some updates with Proclamation No. 1156/2011, still presents significant gaps in comprehensive protection. The exclusion from the full scope of the Labour Proclamation, coupled with the limited and sometimes unfavorable provisions of the Civil Code, leaves domestic workers vulnerable to exploitation and poor working conditions. The global challenges faced by this workforce underscore the urgent need for more robust legal frameworks that recognize their rights and ensure their dignity and well-being.

References

[1] R. Blanpain, ed., Comparative Labour Law and Industrial Relations, page 326. [2] Paul Benjamin, ‘Beyond The Boundaries: Prospects for Expanding Labour Market Regulation in South Africa’ In G. Davidov and B. Langille, eds., Boundaries and Frontiers of Labour Law: Goals and Means in the Regulation of Work (Portland: Hart Publishing, 2006), page 201. [3] Deborah J. Lockton, Employment Law (4th edn, New York: Palgrave Macmillan, 2003), page 92. [4] Hugh Collins, K. D. Ewing & Aileen McColgan, Labour Law, page 67. [5] International Labour Office, ABC of women workers’ rights and gender equality (2nd edn, Geneva: International Labour Office, 2007). [6] Darcy Du Toit, “Extending the frontiers of employment regulation: The case of domestic employment in South Africa.” Law, Democracy & Development 14 (2010) doi:http://dx.doi.org/10.4314/ldd.v14i1.6, page 3.

Employees Governed by Special Laws in Ethiopia

Introduction

Ethiopian labour law, primarily governed by the Labour Proclamation, sets out general principles for employment relationships. However, not all workers fall uniformly under its purview. A significant segment of the workforce is governed by “special laws,” which carve out specific regulatory frameworks for particular categories of employees. This chapter delves into the intricacies of these special legal regimes, exploring the types of employees they cover, the nature of these laws, and the judicial interpretations that have shaped their application in Ethiopia. Understanding these distinctions is crucial for a comprehensive grasp of the Ethiopian employment landscape.

The Exclusion Under Article 3(2)(e) of the Labour Proclamation

Article 3(2)(e) of the Labour Proclamation specifies that employees governed by “special laws” are excluded from the general application of the Labour Proclamation. This provision aims to recognize that certain employment relationships, due to their unique nature or the public interest they serve, require tailored legal frameworks. The Proclamation provides illustrative examples such as members of the armed forces, police forces, civil servants, court judges, and public prosecutors. The phrase “and others” further broadens this scope, implying that any employee proven to be governed by a special law, even if not explicitly listed, would fall outside the Labour Proclamation’s general application.

It is important to note that the relationship between court judges and public prosecutors, for instance, is established through appointment rather than contract of employment. Therefore, even without explicit exclusion under Article 3(2)(e), the Labour Proclamation would not apply to them.

Types of Laws Governing Employees

The special laws governing these categories of employees are diverse in nature and origin. They can take the form of:

• Proclamations: Laws enacted by the House of Peoples’ Representatives.
• Regulations: Rules issued by the Council of Ministers.
• Directives/Internal Rules: Guidelines issued by the institutions themselves, often approved by a higher body or board.

The proliferation of these special laws has led to a fragmented legal landscape concerning the government’s relationship with its employees, often lacking uniformity. Recently, there has been a trend for individual government institutions to develop their own employer-employee regulations.

Employees Governed by Proclamations

Several categories of employees are primarily governed by specific proclamations.

1. Members of the Defence Force

Members of the Defence Force are governed by the Defence Force Proclamation No. 809/2006. This Proclamation comprehensively regulates their recruitment, training, employment, service delivery, termination of service, and outlines their rights and obligations. Key conditions for joining the force include meeting recruitment criteria and successfully completing military training. Membership rights and obligations commence upon signing an employment contract, which typically lasts for at least seven years. This period can be extended with the member’s consent and the Ministry of Defence’s agreement. Officers are obligated to serve for a minimum of ten years. Upon completion of these service periods, members are entitled to a service payment. If service is terminated prematurely for reasons not attributable to the member’s fault or consent, they are entitled to appropriate compensation. The specific amounts and calculation methods for both types of payments are determined by directives issued by the Ministry of Defence.

2. Federal Court Judges

The appointment and removal system for judges are governed by the Revised Federal Judges Administration Council Establishment Proclamation No. 684/2002. However, matters concerning their assignment, transfer, salary, allowances, medical care, promotion, code of ethics, disciplinary procedures, and performance evaluation are determined by the Judges Administration Council. Furthermore, the Council has the authority to determine the salaries, allowances, and other benefits, including termination conditions, for court officials it appoints (such as the head of the Council’s office, registrars, assistant judges, and other officials). Other court employees, commonly referred to as ‘support staff,’ are employed through the President of the Federal Supreme Court (in consultation with the Presidents of the Federal High Court and Federal First Instance Court), and the standard civil service law applies to them.

3. Federal Civil Servants

Among employees governed by proclamations, federal civil servants constitute the largest group. They are governed by the Federal Civil Servants Proclamation No. 1064/2010, which shares similarities in content with the Labour Proclamation No. 1156/2011. This Proclamation is intended to guide and regulate the relationship between any government institution and its employees.

However, a crucial distinction exists between ‘government institutions’ and ‘administrative institutions’ (or ‘civil service institutions’). While all administrative institutions are government institutions, not all government institutions are administrative institutions. Administrative institutions are those vested with quasi-legislative and judicial powers to effectively and efficiently carry out their legal mandates. Conversely, many government institutions are established to achieve specific goals and policies without such powers (e.g., the Ethiopian Kaizen Institute, Metal Industry Development Institute). ‘Civil servants’ (in English) typically refer to employees hired by administrative institutions, whereas ‘public employees’ or ‘government employees’ refer to all employees hired by any government-established institution.

The Federal Civil Servants Proclamation No. 1064/2010 primarily governs ‘government administrative employees’ rather than all ‘government employees.’ Consequently, many employees in non-administrative government institutions are not governed by this Proclamation; instead, their employment relationships are often determined by internal directives approved by the institution’s board. Furthermore, Proclamation No. 1064/2010 has been fully or partially superseded for certain high-level professionals in some administrative institutions. For instance, employees of the Ethiopian Revenues and Customs Authority are entirely governed by a Council of Ministers Regulation, and some senior experts in administrative bodies are excluded from the Proclamation’s coverage.

Employees Governed by Regulations

Several categories of employees are governed by regulations issued by the Council of Ministers. These include:

• Employees of the Ethiopian Revenues and Customs Authority (Regulation No. 155/2000)
• Employees of the National Bank of Ethiopia (Regulation No. 157/2001)
• Security personnel of Federal Prison Administrations (Regulation No. 137/1999)
• Members of the Federal Police Commission (Regulation No. 86/1995 and partially by Proclamation No. 702/2004)
• Federal Public Prosecutors (Regulation No. 44/1991) and Special Public Prosecutors (Regulation No. 72/1993)

Before the issuance of Regulation No. 155/2000 and No. 157/2001, employees of the Revenues and Customs Authority were governed by the standard Civil Servants Proclamation No. 515/1999, while National Bank employees were covered by the Labour Proclamation No. 1156/2011. The Council of Ministers issued these regulations based on legislative delegation of power received from the House of Peoples’ Representatives through Proclamation No. 587/2000 and No. 591/2000, respectively. There are close similarities in content between Regulation No. 155/2000 and Proclamation No. 515/1999, and between Regulation No. 157/2001 and Proclamation No. 1156/2011. For matters not covered by Regulation No. 155/2000 concerning Revenues and Customs Authority employees, Civil Servants Proclamation No. 515/1999 and Federal Civil Servants Disciplinary and Grievance Procedure Regulation No. 72/1994 apply.

Regulation No. 157/2001 completely excludes the provisions related to collective relations (Articles 123-135) found in Part Eight of Proclamation No. 1156/2011. Parts Nine (Labour Disputes), Eleven (Implementation of the Labour Proclamation), and Twelve (Penalties) of the Proclamation are also not included in the Regulation. While the limitation periods found in Part Ten have been fundamentally altered and included in the Regulation, the provisions on priority rights for debt claims are silently omitted.

Employees Governed by Directives/Internal Rules

A growing trend in government institutions is to determine their relationship with employees through ‘internal directives.’ This approach is particularly common in government research, study, and training centers, and is increasingly extending to administrative institutions. For example, the Ethiopian Civil Aviation Authority, National Educational Assessment and Examinations Agency, Ethiopian Commodity Exchange Authority, Ethiopian Broadcast Authority, Pharmaceutical Supply Agency, and many other authorities manage their employees through their own internal directives, rather than by proclamations issued by the House of Peoples’ Representatives. For these directives to have legal effect, they typically only require approval by a higher body. While some proclamations explicitly state that the institution’s board is the approving body, others vaguely indicate that the directive will be approved by ‘the government.’

The employees governed by directives can be all or some of the employees, depending on the institution. In the examples mentioned above, with the exception of the National Educational Assessment and Examinations Agency, the internal directives issued by each institution apply to all their employees. In contrast, for the Examinations Agency, ‘professionals engaged in fulfilling the Agency’s objectives’ are governed by a ‘government-approved directive,’ while other ‘support staff’ are subject to the standard Federal Civil Servants Proclamation No. 1064/2010.

Government temporary employees are also governed by directives. The Temporary Employees Employment Procedure Directive, issued by the former Civil Service Agency in November 2007 E.C., was intended to apply to all federal government institutions. The overall content of this directive is characterized by provisions that diminish employee rights. For instance, temporary employees working beyond regular hours are not entitled to financial compensation but may receive compensatory leave. Annual leave for the first year is fourteen days, with an additional day for each subsequent year of service. In cases of rights violations, grievances are filed through the standard grievance procedure, and if unresolved, the regular court has appellate jurisdiction. A legal interpretation in Cassation File No. 81963 (Applicant Ato Asfaw Gudeta and Respondent Government Houses Agency, December 3, 2005 E.C., Volume 14) clarified that the Federal High Court has jurisdiction over such appeals.

Teachers

Educational services in Ethiopia are provided by the private sector, the federal government, and regional governments, including the Addis Ababa and Dire Dawa city administrations. The government has not yet engaged in kindergarten education. From primary to higher education, services are offered by both public and private sectors. While the nature of employment for teachers engaged in teaching and research across the country shares more similarities than differences, the legal framework governing their employment relationships lacks uniformity. One source of this disparity is the federal system, and the division of employer roles between government and private sectors has led to the creation of various laws that are employer-centric rather than employee-centric. The detailed content of these laws is beyond the scope of this book, but their general application is as follows:

• Teachers employed in private kindergartens, primary and secondary schools, technical and vocational training institutions, and higher education institutions are covered by the standard Labour Proclamation No. 1156/2011.
• The administration and employment of teachers in public primary to 10th-grade schools are determined by regulations issued by regional government councils and city administration councils accountable to the federal government (e.g., Addis Ababa and Dire Dawa).
• Matters concerning the employment, administration, and disciplinary procedures for all academic staff (including those engaged in teaching and research) and administrative and technical support staff in government universities are determined by internal regulations issued by each university.
• Teachers and trainers employed in federal and regional government technical and vocational training institutions are governed by internal directives issued by the institution and approved by a higher body.

The Necessity of Special Laws: Judicial Interpretations

According to Article 3(2)(e), the primary criterion for limiting the Labour Proclamation’s applicability is the existence of a special law governing the employment relationship. When a dispute arises in this context, courts must first ascertain not only the existence of a special law but also whether it specifically applies to the employment relationship in question. The decision in the case of W/ro Amognech Gebre v. Akaki Spare Parts and Hand Tools Share Company Employees’ Money and Savings Credit PLC (May 16, 2011 E.C., Cassation File No. 59579, Volume 11) illustrates that a special law not governing an employment relationship will not exclude the Labour Proclamation’s applicability.

In this case, the Federal First Instance Court initially concluded that because the respondent was a cooperative society, the applicable laws were Proclamation No. 147/91 and 402/96. It then ruled that disputes should be resolved through conciliation or arbitration, with appeals to the High Court, and consequently dismissed the applicant’s case for lack of subject-matter jurisdiction. The Federal High Court, to which an appeal was lodged, affirmed the lower court’s decision and closed the file by referring the matter to arbitrators.

The Cassation Bench, however, analyzed the provisions of Proclamation No. 147/91 and 402/96 in conjunction with Proclamation No. 1156/2011, correcting the legal errors made by the lower courts. The Cassation Bench determined that the disputes to be resolved by arbitration under the cited proclamations concerned the establishment and operation of a cooperative society or its performance, not labour disputes arising between the cooperative and its employees. Therefore, in the absence of a special law governing the employment relationship between the cooperative and its employees, Proclamation No. 1156/2011 always applies.

Government Employee vs. Government Institution: A Misconception

Taking the identity of the employer institution (e.g., being a government institution) as the decisive factor for applying Article 3(2)(e) can lead to an erroneous conclusion. To understand the gap created by this approach, it is useful to examine the dispute and decision in the Cassation Bench case of Gimbie City Administration Office v. W/ro Merertu Fekadu (October 1, 1998 E.C., Cassation File No. 14414, Volume 2). In this case, the respondent filed a lawsuit in the Gimbie Woreda Court, alleging that the applicant had unlawfully suspended her from work in violation of Proclamation No. 42/85, demanding compensation and reinstatement. The court ruled in her favour, ordering payment of back wages and reinstatement, or alternatively, compensation and severance pay. This decision was upheld by the Wollega High Court, and the Oromia Supreme Court dismissed an appeal, stating it lacked jurisdiction as the High Court’s decision was final. An appeal to the regional Cassation Bench was also unsuccessful.

Finally, the Federal Cassation Bench, presented with an appeal alleging fundamental legal errors in the lower courts’ decisions, addressed the central question of whether the relationship between the applicant and respondent was covered by Proclamation No. 42/85. To answer this, the court examined the applicant’s identity to determine whether it met the definition of an ’employer’ under the law.

According to Article 2(1) of Proclamation No. 42/85, an entity qualifies as an employer if it is an individual or organization employing a worker under the Proclamation. ‘Organization’ is further defined in Article 2(2) of Proclamation No. 42/85 as an establishment formed to carry out commercial, industrial, construction, or other legal activities. Based on this, the court stated that the applicant, being a government institution providing public services, could be understood as such from its very name. It then concluded that since government administrative employees are governed by a special law, Proclamation No. 42/85 does not apply to them, citing Article 3(2)(e) of the same Proclamation.

It is crucial to note that two distinct points were conflated in this decision. The reasons given for concluding that the Proclamation was inapplicable were twofold: first, the applicant, being a government institution, should not be considered an employer under the law; second, the respondent, being a government employee, was not covered by Proclamation No. 42/85. In determining the applicability of the Proclamation, the primary question should be whether the individual who brought the labour dispute is a ‘worker’ or not. If the entity identified as the employer does not meet the definition of an employer, there is no need to proceed to other exclusionary clauses, as an employment contract cannot be established with an institution that does not meet the definition of an employer from the outset.

Article 3(2)(e) should only be considered after it has been established that the individual who brought the labour dispute is a worker who has entered into an employment contract with the employer. This exclusionary clause explicitly refers to ’employees governed by special laws,’ not ‘institutions governed by special laws.’ In other words, whether the applicant is a government institution or not is not the decisive factor. As noted in the Cassation decision, the respondent’s argument was, “Since I am not covered by the Civil Servants Proclamation, the Labour Proclamation should apply.” The applicant’s employees were not covered by the Oromia Regional Government Civil Servants Proclamation No. 63/94 at the time the respondent filed her lawsuit. Although this proclamation later covered employees in the applicant institution as government administrative employees, the respondent argued that the proclamation, being enacted after her lawsuit, should not apply retroactively. While the Cassation Bench did not take a clear stance on whether the respondent was governed by a special law, it concluded that the relationship between the applicant and respondent was not covered by Proclamation No. 42/85 “even if she were not covered by a special law, because the applicant is not an organization or employer.”

The easiest way to determine the existence or non-existence of a special law governing an employment relationship is to identify and specify that particular special law. Conversely, using the institution’s identity, such as being a government institution, as a criterion leads to an erroneous conclusion. The following Cassation files demonstrate that concluding employees of an institution are not covered by the Labour Proclamation merely by looking at the institution’s name or identity is incorrect:

• Applicant Addis Ababa Water and Sewerage Authority and Respondent Ato Admas Demissie, November 8, 2009 E.C., Cassation File No. 41767, Volume 9.
• Applicant Addis Ababa Water and Sewerage Authority and Respondent Fikru Kebede, February 3, 2010 E.C., Cassation File No. 49239 (unpublished).
• Applicant Government Houses Agency and Respondent W/t Almaz Hussein, July 30, 2008 E.C., Cassation File No. 39567 (unpublished).
• Applicant Ethiopian Roads Authority and Respondent Misganu Beyene, July 7, 2008 E.C., Cassation File No. 41694 (unpublished).
• Applicant Ministry of Works and Urban Development, Tendaho Housing Development Project Office, Afar Region and Respondent Usman Hassen, January 19, 2008 E.C., Cassation File No. 38250 (unpublished).

In all these cases, the employer was an administrative institution with titles like Authority, Agency, or Office. Nevertheless, the disputes were adjudicated under the Labour Proclamation. Furthermore, the Cassation Bench, in its legal interpretation in Cassation File No. 46075 (Applicant Ato Nigussie Hadush and Respondent Mekelle University Dean of Students, December 25, 2005 E.C., Volume 11), ruled that if a government employee is not covered by the Civil Servants Proclamation, the Labour Proclamation should apply to fill this gap. Cassation File No. 46075 corrects the error made in Cassation File No. 14414, and given the time difference in their legal interpretations, the later ruling (No. 46075) should be interpreted as superseding the earlier one (No. 14414).

Independent Contractors (Work Contractors)

Article 3(2)(f) of the Labour Proclamation states that a person who performs work for a fee, on their own commercial business or professional responsibility, does not have an employment relationship based on a contract of employment. The key distinction between an employee and an independent contractor is that an employee performs work under the direction of the employer, whereas an independent contractor performs the work on their own responsibility without the employer’s control. The definition of a work contractor in Civil Code Article 2610 also indicates that such an individual acts independently and on their own responsibility to achieve a specific result, thus not having an employment relationship based on a contract of employment as per Article 4(1) of the Labour Proclamation.

Conclusion

The Ethiopian employment law framework, particularly concerning employees governed by special laws, is characterized by its complexity and fragmentation. While the Labour Proclamation provides a general regulatory scheme, numerous categories of workers are subject to distinct legal instruments—be they proclamations, regulations, or internal directives. Judicial interpretations, particularly from the Federal Supreme Court Cassation Bench, have played a crucial role in clarifying the scope and application of these special laws, emphasizing that the existence of a special law, and not merely the identity of the employer institution, is the decisive factor for exclusion from the general Labour Proclamation. This intricate web of regulations necessitates careful consideration to determine the applicable law for any given employment relationship in Ethiopia.

Scope of Labour Proclamation: Defining Employment Beyond Traditional Boundaries

The Labour Proclamation No. 1156/2011 (and its predecessors) in Ethiopia defines the legal framework for the employer-employee relationship. However, the scope of its application is not always straightforward. Certain sectors, such as religious institutions, and particular categories of workers, like civil servants or those engaged by international organizations, often present unique challenges to the general applicability of the Proclamation. The Federal Supreme Court’s Cassation Division has played a crucial role in clarifying these boundaries, ensuring that the appropriate legal framework governs diverse work relationships.

This chapter delves into key cassation decisions that illuminate the nuanced applicability of the Labour Proclamation, particularly focusing on:

• The distinction between spiritual and administrative/secular work within religious institutions.
• The jurisdictional complexities for civil servants in government-funded institutions.
• The concept of diplomatic immunity and its impact on the Labour Proclamation’s reach to international organizations and embassies.
• The distinction between private and collective labour disputes, even in cases involving salary or bonus claims.

These rulings collectively highlight the judiciary’s commitment to respecting constitutional principles of state-religion separation, ensuring proper jurisdiction, and upholding international agreements, while still striving to protect the rights of workers where the Proclamation is applicable.

1. Religious Institutions: Spiritual vs. Secular Work

A primary area of complexity arises within religious institutions, where individuals may perform a range of duties—from purely spiritual to entirely administrative or income-generating. The applicability of the Labour Proclamation hinges on the nature of the work performed.

1. Defining “Spiritual Service”

Ministerial Council Regulation No. 342/2007, which supplements the Labour Proclamation, clarifies that individuals providing “spiritual service” (መንፈሳዊ አገልግሎት) are not covered by the Proclamation. “Spiritual service” is defined as work directly and strictly related to the fundamental teachings and worship practices of the faith, directly fulfilling the institution’s mission.

Conversely, employees engaged in income-generating activities, purely administrative tasks, or charitable work within a religious institution are generally covered by the Labour Proclamation.

The Abba Yishaq Mezgebu Tesema Case (Addis Ababa Archdiocese): The Primacy of Work Type

Cassation File No. 234848, dated November 28, 2015 E.C. (አባ ይስሀቅ መዝገቡ ተሰማ vs. የአዲስ አበባ ከተማ ሀገረ ስብከት ጽ/ቤት), provides a foundational ruling on how the nature of work determines federal court jurisdiction in religious institutions.

Abba Yishaq Mezgebu Tesema, a former employee of the Addis Ababa Archdiocese Office, claimed he worked in the “Good Deeds” (ምግባረ ሰናይ) sector and sought back wages and other payments after his employment was allegedly terminated unlawfully. The Archdiocese argued that his work involved spiritual service, placing the dispute outside the ordinary court’s jurisdiction. The lower courts dismissed the case, agreeing that they lacked jurisdiction.

Key Legal Principles: The Federal Supreme Court found a fundamental error in the lower courts’ dismissal. It emphasized:

• Work Type Determines Jurisdiction: The critical factor for federal courts to have subject-matter jurisdiction (የሥረ ነገር ሥልጣን) over labour disputes within religious institutions is the type of work the individual performs (spiritual, purely administrative, charitable, or a combination).
• Proclamation Applicability: Labour Proclamation No. 1156/2011 and Ministerial Council Regulation No. 342/2007 explicitly state that the Labour Proclamation’s coverage for religious institution employees is determined by their work type.
• Necessity of Evidence: The Cassation Court stressed that the lower courts erred by failing to properly investigate the factual nature of Abba Yishaq’s work through evidence. They relied solely on preliminary arguments without hearing evidence on whether his work truly involved spiritual service or was purely charitable/administrative. A court must examine evidence and identify the correct factual issues (ጭብጥ) to determine jurisdiction accurately.

The case was remanded to the First Instance Court for proper evidentiary hearing to determine the actual nature of Abba Yishaq’s work before deciding on jurisdiction. This decision highlights that courts cannot simply assume the nature of work; they must base their jurisdictional decisions on concrete factual findings.

The Central Gondar Zone Archdiocese Office Case: Mixed Duties and Jurisdictional Split

Cassation File No. 231109, dated December 26, 2015 E.C. (የማዕከላዊ ጎንደር ዞን ሀገረ ስብከት ጽ/ቤት vs. እነ መ/ር መሠረት ታከለ /2 ሰዎች/), illustrates the complexities when employees perform a mix of spiritual and administrative duties, leading to a split in jurisdiction even within the same case.

Four employees of the Central Gondar Zone Archdiocese Office claimed salary increases. The Archdiocese argued that as religious institution employees, they were not covered by the Labour Proclamation. The lower courts had conflicting decisions.

Key Legal Principles: The Federal Supreme Court examined the job descriptions of each employee and determined:

• Work Type is Decisive: Whether religious institution employees are covered by the Labour Proclamation depends solely on the nature of their work. If the work has a direct connection to spiritual service, the Proclamation does not apply.
• Definition of Spiritual Service: The Court reiterated that “spiritual service” means work directly and strictly related to the fundamental teachings and worship practices, directly fulfilling the institution’s mission.
• Judicial Non-Interference: Courts lack subject-matter jurisdiction over disputes concerning spiritual service within religious institutions, adhering to the constitutional principle of state-religion separation (Constitution Article 11). Such matters should be resolved through internal religious channels.
• Administrative/Support Roles Covered: Administrative, financial, property management, or oversight roles (e.g., accountants, property managers) are not directly spiritual and can be covered by the Labour Proclamation.
• Detailed Job Analysis: To determine coverage, a careful examination of each employee’s specific job description and responsibilities is essential.

Applying these principles, the Court ruled:

• The work of the Secretary of the Archdiocese, Head of Evangelism, and Head of Sunday School Department were deemed spiritual due to their direct connection to religious teachings, worship, or the institution’s core mission. For these employees, the courts lacked jurisdiction, and the Labour Proclamation did not apply.
• The work of the Head of the Inspection Department, involving financial and property oversight, was deemed administrative/secular and was covered by the Labour Proclamation. For this employee, the regional court’s decision (ordering salary increase) was affirmed.

This case provides crucial guidance on dissecting job roles within religious institutions to determine Labour Proclamation applicability, potentially leading to varied legal outcomes for different employees within the same organization.

The Kes. Abrahim Bekele Case: Legal Officer in a Religious Institution

Cassation File No. 216261, dated February 30, 2014 E.C. (የምስራቅ ሸዋ ሀገረ ስብከት ጽህፈት ቤት vs. ቀሲስ አብርሃም በቀለ), further illustrates the distinction by focusing on a legal officer within a religious institution.

Kes. Abraham Bekele, a legal officer for the East Shewa Archdiocese, claimed a salary increase and sought an employment experience certificate. The Archdiocese argued that as a religious institution employee, he was not covered by the Labour Proclamation and that he was a “managerial employee” (የሥራ መሪ), placing him outside the Proclamation’s scope.

Key Legal Principles: The Federal Supreme Court affirmed the lower court’s ultimate outcome (dismissing the Labour Proclamation claim) but for different reasons:

• Non-Spiritual Roles Covered by Ordinary Courts: If an employee in a religious institution performs work not directly spiritual (e.g., administration, law, accounting), their labour dispute is heard by ordinary civil courts, not the internal religious judicial bodies. The Court stated that the legal officer’s work was not spiritual.
• Managerial Employee Exclusion: Crucially, the Court found that Kes. Abraham, as the Head of the Legal Department, qualified as a “managerial employee” (የሥራ መሪ) under Labour Proclamation No. 1156/2011 Article 3(2)(c) and 2(10). Managerial employees are explicitly excluded from the scope of the Labour Proclamation. His role involved providing independent legal advice to protect the employer’s interests, meeting the criteria for a managerial employee.
• Jurisdiction for Managerial Employees: Disputes involving managerial employees are heard under ordinary civil law in the regular civil courts, not the specialized labour dispute tribunals under the Labour Proclamation.
• Private vs. Collective (Reiterated): The Court also reiterated that a salary increase claim for an individual is a private labour dispute, which should be heard by the First Instance Court’s Labour Dispute Division, not the Labour Affairs Board (which handles collective disputes).

This decision clarifies that a legal officer’s role in a religious institution is typically secular, but if they qualify as a managerial employee, their dispute falls outside the Labour Proclamation’s scope entirely, requiring recourse to general civil law.

2. Government-Funded Institutions: Civil Servants vs. Labour Proclamation Coverage

Another complex area involves government-funded institutions, where the primary law governing employment is the Civil Servants’ Administration Proclamation, not the Labour Proclamation. However, exceptions and nuances exist.

1. General Rule: Civil Servant Law Applies

Generally, civil servants in government-funded institutions are governed by the Civil Servants’ Administration Proclamation No. 1064/2011 and related directives. Labour disputes involving these employees are typically heard by administrative tribunals, not ordinary civil courts.

The Gambella Regional Finance & Economic Development Bureau Case: The Scope of Civil Service Law

Cassation File No. 233629, dated January 25, 2015 E.C. (የጋምቤላ ክልል ፋይናንስና ኢኮኖሚ ልማት ቢሮ vs. አቶ ተስፋዬ ኤሊያ), illustrates the clear distinction between civil service employment and Labour Proclamation coverage.

Ato Tesfaye Eliya was employed by the Gambella Regional Finance & Economic Development Bureau on a project funded by the World Bank. He claimed unlawful termination and sought various payments under Labour Proclamation No. 1156/2011. The Bureau argued he was a civil servant past retirement age, governed by civil service law, not the Labour Proclamation. The lower regional courts had conflicting decisions on the applicable law.

Key Legal Principles: The Federal Supreme Court reversed the regional courts’ decisions, ruling that they lacked subject-matter jurisdiction.

• Governing Law for Civil Servants: The employment relationship between Ato Tesfaye and the Gambella Bureau, a government entity, should be governed by the Civil Servants’ Administration Proclamation No. 1064/2010 and related directives, not the Labour Proclamation No. 1156/2011. This is because the Labour Proclamation generally excludes civil servants (Article 3(3)).
• Jurisdiction for Civil Servant Disputes: Labour disputes involving civil servants are to be heard by administrative courts or tribunals, not ordinary civil courts. Therefore, the regional courts (First Instance, High Court, and Regional Cassation) erred by entertaining the case, as they lacked the proper subject-matter jurisdiction.
• Project Work for Retired Civil Servants: The Court noted that even retired civil servants can be hired on a contract basis for project work in government institutions (referencing Directive 2000, Article 12(1)), and such engagements are still governed by civil service regulations, including rules on special leave without pay (Directive 2000, Article 11(2)).
• Consequence of Jurisdictional Error: Any decision rendered by a court without subject-matter jurisdiction is fundamentally flawed.

The case was closed, with the Court indicating that the employer could pursue the matter in the appropriate administrative court. This decision firmly establishes that disputes involving government employees, even those on project contracts, generally fall under civil service law and administrative tribunals.

1. Nuances for Government-Administered Entities: The Ethiopian Air Force Case

Cassation File No. 223579, dated October 29, 2015 E.C. (የኢፌዲሪ አየር ኃይል vs. እነ ወ/ሮ አይናለም አቤቤ /9 ሰዎች/), provides a crucial clarification regarding the potential applicability of the Labour Proclamation to civilian employees within government-administered entities like the Ethiopian Air Force.

Nine civilian employees of the Ethiopian Air Force were terminated due to alleged budget cuts. They claimed unlawful dismissal and sought payments under the Labour Proclamation. The Air Force argued that as a government entity, it was not subject to the Labour Proclamation. The lower courts had conflicting rulings.

Key Legal Principles: The Federal Supreme Court remanded the case for further factual investigation, emphasizing:

• Default Civil Servant Rule: As an entity funded by the government budget, the Ethiopian Air Force’s civilian employees are generally governed by the Civil Servants’ Administration Proclamation No. 1064/2011.
• Exception for Specific Relationships: However, Regulation No. 460/2012 (Article 58(2)), which implements the Ethiopian National Defense Force Proclamation No. 1100/2011, explicitly states that for employee recruitment and administration, either the Federal Civil Servants’ Proclamation or the Labour Proclamation may apply as appropriate. This opens a possibility for Labour Proclamation applicability.
• Necessity of Factual Determination: The Court stressed that lower courts must meticulously investigate the specific nature of the employees’ engagement (e.g., whether they were permanent, contractual, or daily laborers) to determine which law (Civil Servant Proclamation or Labour Proclamation) should govern their relationship. Merely stating that the Air Force is a government entity is insufficient to exclude Labour Proclamation applicability if the specific employment type falls within the exceptions.
• Court’s Duty to Determine Applicable Law: Courts have a fundamental responsibility to correctly identify the applicable law based on the facts presented.

The case was remanded to the Woreda Court to investigate the precise employment status of the employees and then apply the correct law. This decision indicates that even within government bodies, the Labour Proclamation can apply to certain civilian employment relationships, requiring careful factual analysis.

3. International Organizations and Diplomatic Missions: Immunity and Exclusions

International organizations and foreign diplomatic missions often enjoy immunity from the jurisdiction of local courts based on international agreements. This immunity directly impacts the applicability of domestic labour laws.

1. Principle of Immunity

Ethiopia’s Labour Proclamation No. 1156/2011 (Article 3(3)(a)) explicitly states that it does not apply to employment relationships between foreign diplomatic missions or international organizations and their Ethiopian employees, when determined by a Ministerial Council Regulation or international agreements Ethiopia is a party to. This reflects a commitment to respecting international law and diplomatic privileges.

The International Livestock Research Institute Case: Exhausting Diplomatic Channels

Cassation File No. 231503, dated March 26, 2015 E.C. (አቶ ሰለሞን ወርቅዬ vs. ዓለም አቀፍ የእንስሳት ምርምር ተቋም), provided key guidance on the non-applicability of the Labour Proclamation to international organizations.

Ato Solomon Workiye sued the International Livestock Research Institute (ILRI) for unpaid allowances and unlawful termination. ILRI argued it had immunity from suit based on international agreements and its host country agreement with Ethiopia, and that the Labour Proclamation did not apply. The lower courts dismissed the case for lack of jurisdiction.

Key Legal Principles: The Federal Supreme Court affirmed the lower courts’ decision.

• Immunity from Jurisdiction: International organizations enjoy immunity from local courts based on international agreements (e.g., UN Convention on Privileges and Immunities, host country agreements). This immunity prevents Ethiopian courts from having jurisdiction over disputes involving these organizations.
• Labour Proclamation Exclusion: The Labour Proclamation itself (Article 3(3)(a)) exempts these entities from its application based on such agreements.
• Constitutional Right to Justice and Diplomatic Channels: While employees have a constitutional right to access justice, for disputes with entities enjoying immunity, this right must first be pursued through alternative, established diplomatic channels, typically via the Ministry of Foreign Affairs (MoFA). The Court emphasized that an employee cannot directly approach a court if they have not exhausted the MoFA’s mediation or negotiation process. The Federation Council’s decisions on immunity also apply in this context.

This decision firmly establishes that the Labour Proclamation does not apply to international organizations with immunity, and employees must first pursue administrative/diplomatic avenues for dispute resolution.

The Qatar Embassy Case: Diplomatic Immunity and Contractual Waiver

Cassation File No. 205879, dated November 30, 2014 E.C. (እነ አቶ ገብረጊዮርጊስ ተስፋዬ /10 ሰዎች/ vs. በኢትዮጵያ የኳታር መንግስት ኤምባሲ), addressed the diplomatic immunity of embassies and whether it can be waived by contract.

Ten former employees sued the Embassy of Qatar for unlawful termination and compensation. The Embassy argued diplomatic immunity under the Vienna Convention. The employees claimed their contract included a clause subjecting disputes to Ethiopian law, implying a waiver of immunity. The lower courts dismissed the case, accepting the immunity defense.

Key Legal Principles: The Federal Supreme Court affirmed the lower courts’ decision, upholding the Embassy’s immunity.

• Diplomatic Immunity: Diplomatic missions enjoy immunity from the jurisdiction of receiving state courts under Article 31 of the 1961 Vienna Convention on Diplomatic Relations, which Ethiopia has ratified. This immunity prevents Ethiopian courts from hearing cases against embassies.
• Labour Proclamation Exclusion (Reiterated): Labour Proclamation No. 1156/2011 Article 3(3)(a) explicitly excludes diplomatic missions from its scope, reinforcing the respect for diplomatic privileges.
• Waiver of Immunity: While Article 32 of the Vienna Convention allows for waiver of immunity, it must be express and explicit. The Court found that the contract clause stating “disputes shall be resolved under Ethiopian law” was not an explicit waiver of immunity from suit; rather, it merely referred to the substantive law applicable if a dispute were to be heard. It did not explicitly state that the Embassy renounced its right to immunity from the jurisdiction of Ethiopian courts.

This decision clarifies that diplomatic immunity is a strong protection, and any waiver must be clearly and unambiguously expressed to be legally effective, preventing implied waivers from general contractual clauses.

4. General vs. Specific Labour Dispute Categories

While discussed in previous chapters on jurisdiction, it’s worth re-emphasizing that the distinction between private and collective labour disputes also impacts the applicability of certain provisions and the proper forum, even for seemingly simple claims like salary increments.

The Edget BeHibiret Consumers Cooperative Case: Individual vs. Collective Salary Claims

Cassation File No. 234857, dated April 25, 2015 E.C. (እድገት በህብረት የወረዳ 08 ሸማቾች ኃ/የተ/የህ/ስ/ማህበር መሰረታዊ የሰራተኛ ማህበር vs. እድገት በህብረት የወረዳ 08 ሸማቾች ኃ/የተ/የህ/ስ/ማህበር), addressed whether a salary and bonus claim from a workers’ union was a collective dispute for the Board or a private one for the courts.

A workers’ union demanded salary increments and bonuses for its members from a consumer cooperative, citing a collective agreement and the cooperative’s profitability. The Labour Affairs Board ruled in favor of the union. The Federal High Court reversed, stating the Board lacked jurisdiction as it was a private dispute. The union appealed.

Key Legal Principles: The Federal Supreme Court affirmed the High Court’s decision, finding the Board lacked jurisdiction because the claim was a private labour dispute.

• Private vs. Collective (Reiterated): A dispute is “collective” if its outcome affects the common rights and benefits of a group of workers (e.g., challenging a general salary policy). It is “private” if the outcome is confined to the individual(s) bringing the claim, even if multiple individuals bring similar individual claims. The Court reasoned that a decision on the specific salary and bonus demands of the applicants would not automatically change the terms for all other workers not party to the suit.
• Jurisdiction for Salary/Bonus Claims: Claims for salary increases and bonuses, when not challenging a systemic policy affecting all employees generally, fall under the jurisdiction of the First Instance Court’s Labour Dispute Division (Labour Proclamation Article 139(1)(c)). The Labour Affairs Board has jurisdiction only over collective labour disputes.
• Court’s Duty to Check Jurisdiction: Courts have an inherent duty to check their own subject-matter jurisdiction, even if the parties do not raise the issue.

This decision underscores that a claim brought by a union on behalf of its members, even if involving salary, can still be a private dispute if the outcome is not systemic or universally applicable to all employees beyond the claimants.

Conclusion: A Multi-Layered Applicability

The jurisprudence of the Federal Supreme Court’s Cassation Division reveals that the applicability of the Labour Proclamation in Ethiopia is a multi-layered concept, influenced by the nature of the work, the type of employer, and international legal obligations.

Key takeaways from this chapter include:

• Work Type Dictates Coverage: For religious institutions, the distinction between purely “spiritual service” (excluded from the Proclamation) and secular/administrative/income-generating work (covered by the Proclamation) is paramount. Courts must conduct factual inquiries to determine the true nature of the work.
• Civil Servant Exclusion with Exceptions: Government employees are generally governed by civil service laws and fall outside the Labour Proclamation. However, specific regulations (e.g., for civilian staff in military-administered entities) may allow for Labour Proclamation applicability based on the specific employment nature.
• Immunity for International Entities: International organizations and diplomatic missions with immunity are generally excluded from the Labour Proclamation’s jurisdiction, based on international agreements. Employees must exhaust diplomatic channels before seeking judicial recourse. Waiver of such immunity must be explicit.
• Private vs. Collective Distinction for Claims: Even claims for salary or bonus, when impacting only the individual claimants (rather than a systemic policy for all employees), are categorized as private labour disputes, falling under the ordinary courts’ jurisdiction, not specialized Boards.
• Courts’ Jurisdictional Duty: Courts have an inherent responsibility to ascertain their own subject-matter jurisdiction and the correct applicable law, even if parties do not explicitly raise these issues.

This comprehensive understanding of the Labour Proclamation’s scope is essential for legal professionals and all stakeholders in Ethiopia’s dynamic labour landscape, ensuring that disputes are properly channeled and resolved within the appropriate legal framework.