Cassation Case No. 249846
December 31, 2023
Judges: – Dr. Teferi Gebru
Endashaw Adane
Teshome Shiferaw
Wazimo Wasira
Senait Adnew
Applicant: – Seni Steel Pipe Manufacturing PLC: – Advocate Abnet Mandefro
Respondent: – Ato Sendaba Chala Bulela: – Present
The file is adjourned for examination and judgment. Accordingly, we have examined and rendered the following judgment.
Judgment
This cassation application was filed by the Applicant on Sene (June) 27, 2015 E.C., stating that the judgment rendered by the Federal First Instance Court under File No. 188140 on Megabit (March) 29, 2015 E.C, was affirmed by the Federal High Court under Appeal File No. 296510 on Ginbot (May) 23, 2015 E.C, and requesting that it be reviewed and corrected in cassation as an error was committed.
The case concerns termination of employment and was submitted along with additional evidence. The dispute began in the Federal First Instance Court, where the Applicant was the defendant and the Respondent was the plaintiff.
The content of the claim filed by the Respondent on Tir (January) 04, 2015 E.C., is that he had been working in the Applicant’s company as a Security Shift Leader since Ginbot (May) 16, 2009 E,C., with a monthly salary of Birr 3,530.00 (Three Thousand Five Hundred Thirty), and that the company’s property was stolen by an individual who was a security guard of the company, and that he was dismissed from work on Tikimt 29, 2015 E.C., on the grounds that he caused damage to the Applicant despite having no connection with the theft. Therefore, he sought judgment requesting that the dismissal be declared unlawful and that he be reinstated to work with payment of arrears of salary, or if he is not reinstated, that payments related to the unlawful dismissal be ordered.
The Applicant, in its statement of defense submitted on Tir (January 18), 2015 E,C,, in response to the claim, raised a preliminary objection stating that the court lacks jurisdiction to hear the claim as the Respondent was employed as a Security Shift Leader in the Applicant’s company and was a supervisor. On the merits of the case, the Applicant argued that the Respondent was a worker who had been on final warning due to repeated oral warnings for failing to be present at the workplace, leaving early during working hours, and failing to supervise the workers he was supposed to supervise, but had not corrected his behavior. Furthermore, although he had the obligation to ensure the timely entry and exit of security guards and perform handover work, the company had been facing problems due to his failure to properly perform his duties; that on October 19, 2022, the day he was on duty and stayed overnight, he and 4 other security members, including himself, did not wait until 1:00 AM to hand over to the next shift and were not present, resulting in a theft committed by one member of the shift who was caught red-handed; that damage was caused to the company’s property due to the Respondent’s failure to properly perform his duties, and although he admitted this and requested to return to work by apologizing, the dismissal was lawful as it is a ground for dismissal without prior warning according to Proclamation No. 1156/2019 Article 27(1)(d) and (i) and the collective agreement, and therefore the various payments requested should not be paid.
The Respondent requested that the collective agreement and a clearance form be attached as additional evidence, and although the Applicant responded that it lacks legal basis, the court stated that it took into consideration the significance of the submitted evidence for true justice and the fact that it was not available in the Respondent’s possession at the time and was not submitted for a sufficient reason, and ordered it to be submitted and attached.
Finally, after reviewing the arguments and evidence of both parties, the Federal First Instance Court found that the Respondent did not commit the theft and was not connected with the theft, however, the Respondent contributed to the theft occurring due to negligence by leaving his workplace early on the day the theft was committed; that while the law stipulates that it is possible to dismiss without warning when such an act of negligence is committed, the collective agreement under Item No. 31 states that leaving the security post without another worker to replace entails a 3-day salary penalty and a written warning for the first time, a 5-day salary penalty and a written warning for the second time, and dismissal for the third time, and that the Applicant did not prove with evidence that warnings were given and salary penalties were imposed on the Respondent in this manner; that it is also not found in his personnel file. Furthermore, according to Proclamation No. 1156/2019 Article 135(2), when a collective agreement provides greater benefit to the worker than what is stipulated by law on a similar matter, the agreement should be applicable. Therefore, since the Applicant failed to prove that the Respondent was involved in the theft, and even if he left his security duty early, causing the termination of the employment contract directly without following the procedure and imposing the appropriate penalty according to the collective agreement is unlawful. Regarding the outcome, reinstating the Respondent to work would undermine the high trust that should exist between the parties, and thus rendered a decision that he be dismissed with compensation.
Being dissatisfied with this decision, the Applicant appealed to the Federal High Court, but the court affirmed the decision of the lower court, stating that it was confirmed that the Respondent is not a supervisor; regarding additional evidence, the court may order it to be submitted when it finds it necessary for justice.
The Applicant filed this cassation application on June 27, 2023, to reverse this decision, stating that the lower court confirmed that the Respondent left his work station and left early before his scheduled departure time, and whether intentionally or negligently, by not being present, he enabled the security guard he supervised to steal from the company, and stated in its reasoning that this is a ground for dismissal without warning under Article 27 of the Proclamation, but rendered a decision based on this evidence (collective agreement) which was not attached as evidence by the Respondent when it was in his possession, and where he did not request it to be submitted to him according to Civil Procedure Code Article 145, and was not submitted as additional evidence before the hearing of the arguments, but was requested to be attached after the hearing of the arguments, and the court rendered a decision based on this evidence without ruling on our objection; that the judgment encourages illegality; that the ruling given on the preliminary objection that the Respondent should not be called a supervisor despite admitting that he is a supervisor and admitting and specifying the number and quantity of employees he supervised should be corrected; and requesting that the decision be reversed as we did not commit unlawful termination.
The Applicant’s cassation application was examined by the cassation investigator and guided, and the cassation bench held the issue of examining whether calling the dismissal unlawful, while the alleged misconduct committed by the Respondent was confirmed, is in light of Proclamation No. 1156/2019 Article 27(1)(i), and the Respondent was made to give a response.
The content of the response given by the Respondent on August 02, 2023, is that even if it is said that he left the workplace early, it is not an act that directly leads to dismissal according to Item No. 31 of the collective agreement and that this agreement should be implemented, that this court should not consider the issue of evidence and that the lower court’s decision to allow it to be seen is legally acceptable, and stating that the claim that the Respondent admitted and argued that he was a supervisor in the lower court is false and that he does not have the role of a supervisor, and argued that the lower court’s decision should be upheld as there is no error of law committed.
The Applicant also submitted a reply to response, strengthening their cassation application, and it is attached to the file.
The origin of the case is briefly described above, and this bench has examined the arguments of both parties by correlating them with the decision that served as the basis for the cassation application, the provisions relevant to the case, and the point raised as grounds for cassation, as follows.
Basically, proclamation No. 1156/2011 Article 23/1 stipulates that the employer-employee work relationship is terminated either at the initiative of the employer or the employee, or in accordance with the law, or by collective agreement, or by agreement between the contracting parties. Accordingly, any termination of a work contract outside of these provisions is illegal and entails the responsibilities stipulated by the law.
Regarding the circumstances under which an employer can dismiss an employee without warning, strict requirements are detailed in Proclamation No. 1156/2011, Article 27(1). Furthermore, Collective Agreement No. 31 states that when an employee leaves a guard post without a replacement present: the first instance results in a penalty of 3 days’ salary and a written warning; the second instance results in a penalty of 5 days’ salary and a written warning; and the third instance results in dismissal. Respecting work regulations, guidelines, and procedures is an obligation imposed on the employee by law, as stipulated in Article 13/7 of the Proclamation. Similarly, Article 12/9 of the Proclamation stipulates that the employer has the obligation to respect the provisions of this Proclamation, the collective agreement, work regulations, and directives and orders legally issued. Therefore, before taking dismissal action against an employee, the employer has the duty to ascertain whether the employee committed an offense that could lead to dismissal from this perspective, to identify what gives the employee more benefits as stated in proclamation 1156/2011 Article 135/2, and to verify that the employee has passed through the process. The court is also expected to examine based on the underlying purpose of the provision and reach a conclusion.
In the present case, although the Respondent was the shift leader on duty when the alleged theft occurred at the Applicant organization, the lower court affirmed that the Respondent was not directly involved in the theft. Even if it is argued that it was committed due to the Respondent’s absence from the workplace and negligence, it has not been proven that the Applicant previously issued a penalty and warning in this regard. Article 31 of their collective agreement also outlines the cautionary and penalty measures that must be taken before dismissal, but the applicant, in addition to stating that the dismissal was carried out unconditionally in accordance with Article 27/1/ (d) and (f) of the Proclamation and the collective agreement, it is not proven that the Respondent had previously been penalized with a 3-day salary deduction and a written warning for the first time, a 5-day salary deduction and a written warning for the second time, and that the act that caused the dispute was committed for the third time, which resulted in the dismissal decision.
Since what is stated regarding dismissal in the collective agreement gives the respondent a better procedural right, the court must fully implement this in the decision-making process, which guarantees not only the employee’s procedural right but also a fundamental right in terms of obtaining job security. Also, these proclamations, regulations, directives, collective agreements, etc., are not to be submitted as additional evidence; they are legal documents that the court can obtain and examine at any time and are not necessarily considered to be submitted by one of the opposing parties.
Therefore, the lower courts’ decision that the Applicant terminated the Respondent’s employment contract illegally because it did not follow what was stated in the collective agreement, and the order for the Applicant to pay various compensations to the Respondent, and the confirmation of the decision by the appellate court, is not found to contain an error that can be corrected at this level. Accordingly, the following is decided.
Decision
1. The decision of the Federal High Court in Case No. 1296510, dated May 31, 2023 (Ethiopian Calendar: Ginbot 23, 2015), affirming the judgment of the Federal First Instance Court in Case No. 188140, dated April 7, 2023 (Ethiopian Calendar: Megabit 29, 2015), is upheld.
2. The Applicant and Respondent shall bear their own costs and expenses incurred for the argument before this chamber.
Order
The stay of execution order issued on July 14, 2023 (Ethiopian Calendar: Hamle 07, 2015) in Case No. 190467, commenced in the lower court, is lifted. Let it be written.
The case is closed.
[Illegible signatures of five judges]