Note
The Original Document is in Amharic. This is an Unofficial Translation.
Cassation Case No. No. 253160
January 27, 2016 E.C.
Judges: – Teferi Gebru (Dr.)
Endashaw Adane
Teshome Shiferaw
Wazimo Wasira
Senayit Adnew
Applicant: – Ato Getahun Balcha Appeared
Respondent: – Tike Hotel and Resort Representative Dilyab Jebesa Appeared
Having examined the file, we have rendered the following judgment.
Judgment
The case concerns an labour dispute, initiated at the Bishoftu Town Woreda Court with the current Applicant as Plaintiff and the current Respondent as Defendant. In the claim filed by the Applicant, he stated that he was employed by the Respondent’s organization as Head of Human Resources Administration and Training Section starting from 16/01/2015 E.C., serving and being paid Birr 20,000.00 per month, when on 10/04/2015 E.C., the Respondent illegally dismissed him from work without any fault and without warning. Therefore, pursuant to Labour Proclamation No. 1156/2011, he requested judgment for severance pay, payment in lieu of notice, payment for delayed payments, job security compensation, compensation payment, and his unpaid 24 days’ salary, totaling Birr 296,000.00, plus costs and damages including attorney’s fee; and that they be given a work experience certificate.
The Respondent, in its response, stated that the Applicant is a managerial employee and not a worker, and therefore the relationship between them should be adjudicated under the Civil Code, not the Labour Proclamation. It further stated that the Applicant was employed for a three-month probation period and was legally dismissed before the probation period expired because he was unfit for the position, and thus requested that the Applicant’s claim be dismissed and that he be ordered to pay costs and damages.
The Court, after hearing the arguments and evidence of both parties, found that the respondent failed to prove that the applicant had the authority to hire, dismiss employees, or issue and implement the respondent’s policy as a manager. The respondent also failed to present to the Court the document showing the job description of the Head of Human Resources and Training, which the Court had requested. Since a decision given by the respondent organization’s Board on 16/12/2014 E.C. stated that Human Resources staff cannot hire, and that employees are hired, dismissed, and transferred by the respondent’s decision; and since the contract between the parties did not specify that the work performed falls under what is listed in Article 2(10) of Proclamation No. 1156/11, the objection raised claiming that the applicant is a manager has been rejected. As the applicant served beyond the 60-day probation period stipulated in the Proclamation and is considered a permanent employee, and in a situation where the respondent failed to present evidence proving that the applicant lacked competence or was given competence improvement training, dismissing the applicant without warning is an illegal act. Therefore, the decision ordering the respondent to pay the applicant payment in lieu of notice, service pay, compensation payment, 24 days’ unpaid salary, and payment for three months of delayed salary, totaling Birr 221,000.00, plus costs and damages including lawyer’s fees, has been upheld by a majority vote in the Zonal High Court.
Being dissatisfied with this decision, the respondent submitted Cassation application to the Regional Supreme Court Cassation Bench to have it reversed. The Regional Cassation Bench, after hearing arguments from both parties, and stating that based on the board’s decision which aimed to create work comfort and a stable work environment by making employee hiring and dismissal subject to discussion, but did not limit the applicant’s job description from being that of a manager, and the fact that the applicant signed employee termination letters as confirmed by witness testimony, and in a situation where the respondent proved through documentary and testimonial evidence that the applicant’s job description was that of a manager, the case should be adjudicated under civil law and not the Labour proclamation, upheld the argument It raised and overturned the decision given by the lower courts which had stated that the applicant is an employee and not a manager. It ruled that since the applicant is a manager, the case should not be considered under Proclamation No. 1156/2011.
The cassation petition was submitted to the Federal Supreme Court Cassation Division due to dissatisfaction with the decision of the Regional Cassation Division and seeking its reversal. The content of the grievance is that although the applicant was appointed as Head of Human Resources Administration and Training, he did not in practice perform the duties of a manager but only managed a specific work section. Furthermore, according to the directive issued by the respondent’s board, employee recruitment, promotion, transfer, and other matters are carried out by a committee established by the board, and the applicant, being merely a member of this committee, could not make any decision alone. Despite this being decided and implemented accordingly, the Regional Cassation Division’s decision stating that the applicant is a managerial employee (ሥራ መሪ) and therefore should not be judged under labor law constitutes a fundamental error of law. Thus, the applicant requests that this decision be annulled and the decisions rendered by the Regional Woreda and High Courts be upheld.
The Federal Supreme Court Cassation Division, in order to determine whether the Regional Supreme Court Cassation Division’s decision to overturn the lower courts’ decisions was based on weighing evidence, and if a decision based on weighing evidence was rendered, whether it falls under the legal jurisdiction of the cassation division, framed an issue for determination and ordered the respondent to provide a reply.
The respondent, in its reply, stated that the applicant, was dismissed during probation as Head of Human Resources Administration for failing to perform his duties properly. Citing the definition of managerial employee provided by the Federal Supreme Court Cassation Division in Cassation Case numbers 21329 and 92466, the dispute between them should be judged under civil law, not labor law. It further stated that the board, based in Addis Ababa, organizes properties located in various places, examines their business operations, and assists the companies by following government business policy, but it does not have the role of directly going down to each company level to hire, train, or dismiss employees. Therefore, it requested that the applicant’s Cassation petition be dismissed and the Regional Cassation Division’s decision be upheld.
The applicant, in his reply to the response, argued by reinforcing his grievance.
The background of the case is briefly as stated, and we have examined the application and response of the parties in light of the issue of the case and the relevant legal provisions. As we have examined, the regional Woreda and High Courts, by evaluating the evidence presented by the parties, decided that according to the law, since the respondent failed to prove that the applicant was performing the duties of a manager, the applicant is an employee; and since they were dismissed without any fault and warning, the dismissal is unlawful, and therefore the respondent should pay the payments due according to Labour Proclamation No. 1156/2011. It can be understood from the copy of the decision presented that the Regional Cassation Court overturned the decision of the lower courts by stating that it is not appropriate to say that the applicant is an employee when it was proven through the oral and documentary evidence presented by the respondent that the applicant is a manager. This shows that although the respondent argued in their objection to the applicant’s claim that the applicant is a manager, the Woreda and High Courts, which have the power to evaluate evidence and ascertain factual matters, confirmed that they failed to prove according to their arguments and rendered a decision.
As stated in Article 80 (3/b) of the FDRE Constitution, the Cassation Division of the Regional Supreme Court is limited to correcting decisions in which a fundamental error of law has been committed. It is known that a fundamental error of law does not include evaluating evidence, ascertaining factual matters, and rendering a decision. As stated in Article 26 (1) of Oromia Regional State Courts Reorganization, Powers and Functions Proclamation No. 216/2011, the Cassation Division of the Regional Supreme Court can accept and hear a case only if it believes that there is a fundamental error of law committed in cases where a final decision has been rendered by the regional courts. While this Proclamation, in sub-article 2 of the same article, lists the circumstances under which it can be said that a fundamental error of law has been committed, in sub-article 3 (d), which specifically stipulates cases that should not be submitted to the Cassation Court, it is stipulated that any decision in which an error of factual matter or evidence admission or evidence evaluation has been committed shall not be submitted to the Regional Cassation. Similarly, the Cassation Division of the Federal Supreme Court has also given a binding legal interpretation in Cassation File No. 231695 that the Cassation Division of the Regional Cassation does not have the power to render a decision by evaluating evidence.
Now, returning to the case at hand, the Regional Cassation Bench based its decision to overturn the Regional Woreda and High Courts’ decisions on the witness testimony and documentary evidence presented by the parties. This clearly shows that the Regional Supreme Court Cassation Bench went beyond the authority granted to it, which is limited by the Constitution and the law, by weighing evidence and rendering the decision that is the basis for this cassation application. Furthermore, regarding the issue the court took up to ascertain whether the Regional Cassation Bench has the authority to weigh evidence, the respondent did not provide a clear answer.
Therefore, the decision rendered by the Regional Cassation Bench, without considering the binding legal interpretation given by the Federal Supreme Court Cassation Bench, which must be applied mandatorily by courts at all levels, stating that the Regional Cassation Bench does not have the authority to weigh evidence, has been found to contain a fundamental error of law that must be corrected by this court, pursuant to Federal Courts Proclamation No. 1234/2013, Article 2(4)(a)(h), 10(1)(c), and 26(3). Accordingly, the following is decided.
Decision
- The decision rendered by the Oromia Regional Supreme Court Cassation Bench under file no. 423872 on July 04, 2015 E.C. is hereby overturned pursuant to Article 348(1) of the Civil Procedure Code.
- The decisions rendered by the Regional Bishoftu Town Woreda Court under file no. 23043 on March 19, 2015 E.C. and the East Shewa Zone High Court under file no. 71770 on May 07, 2015 E.C. are hereby affirmed pursuant to Article 348(1) of the Civil Procedure Code.
Order
- As the file has received a decision, a copy shall be given to the parties.
- The parties shall bear their own costs and expenses incurred in this court.
- We have closed the file and returned it to the registry.
Bears the illegible signature of five judges
F/D