Effect of continuity of employment after expiry of resignation notice

 Unlike the limitations imposed on the power of the employer to terminate the employment contract, a worker can at any time, put an end to the employment relationship with or without a valid ground. When resignation is voluntary, the law only requires 30 days prior notice be served on the employer. Non-compliance with notice entails liability for payment of up to one-month salary by way compensation to the employer.

The worker is relieved from giving 30 days prior notice to his employer in two instances.  First, a worker on probation is free to resign without notice. /Article 11/6/ and 31 of the labour proclamation no. 1156/2011/. The second case relates to involuntary resignation. This is somewhat similar to what is known as ‘constructive dismissal’ in common law regimes. However, close reading of article 32 of the labour proclamation, which lays down valid grounds for involuntary resignation or resignation without notice, leads us to the conclusion that the concept of constructive dismissal is unknown to the Ethiopian labour law. Irrespective the degree of infringement of right of the worker by the employer leading to involuntary resignation, the law treats such termination as ‘termination by initiation of the worker’. On the other hand, constructive dismissal is considered as ‘dismissal by employer’, and the effect is similar with unfair/unlawful dismissal.

When notice is given by the worker with the intention of resigning, expiry of the notice period terminates the employment contract by operation of law, meaning termination is automatic. This being the case, what will happen to the employment relationship, if the worker continue working after the expiry of the notice period? This usually happens due to the long held practice of employer’s refusal to ‘release’ the worker. As a matter of law and principle employment contract by nature is consensual, meaning it is freely formed and is based on the consent of the parties. Its continuity is also dependent upon the free consent of the worker (though not of the employer) A worker may at any time unilaterally terminate his contract even without a valid ground. He may even disregard the notice requirement if he chose to be liable to pay compensation. Resignation does not require the consent or approval of the employer. It is the sole discretion of the worker.

The practice of ‘release’ is borrowed from civil servants laws. The Federal Civil Servants Proclamation No. 1064-2017 lays down stringent requirements on a civil servant wishing to resign. The law in principle recognizes the right of the civil servant to resign at any time by giving one month notice. Nevertheless, this depends on his ‘indispensability.’ Article 83/3/ of proclamation no. 1064 in this regard reads:

“Where the service of the civil servant is indispensable and he could not be replaced easily, his release may, in agreement with his future employer, be delayed for a period not exceeding three months counted from the date of application.”

There is no similar provision in the labour proclamation 1156. Even if the resigning worker is the only one in the country with a special skill and professional competence, no employer is authorized to ‘delay’ him simply because he is ‘indispensable.’ Against the express position of the law, there are still few instances of this practice of [refusal] ‘release.’  From labour law point of view, the basic question will be this: when the ‘unreleased’ worker continues working as a result of employer’s refusal, can he be legally dismissed on ground of his previous resignation?

In w/t Shewit Hailu Vs. Defense Construction Enterprise CFN 104465 Vol 18 (አመልካች ወ/ት ሸዊት ኃይሉ እና ተጠሪ መከላከያ ኮንስትራክሽን ኢንተርፕራይዝ መጋቢት 30 ቀን 2007 ዓ.ም. ቅጽ 18) the Cassation Bench held If there is continuity of employment after expiry of notice period, the relationship maintains its normalcy and could not be terminated by the employer. According to the facts of the case, the worker (applicant) gave 30 days resignation notice to the employer (respondent) However, respondent delayed her release for seven months. During these seven months, the ordinary employment relationship continued without any variation on the terms and conditions or the obligation of the parties. After seven moths respondent told applicant to leave (terminated her employment contract) citing her resignation letter. She challenged this decision in the lower courts. However, was not successful. Lastly, she took the matter to the Cassation Bench of Federal Supreme Court alleging a fundamental mistake of law made by lower courts. And, the bench agreed ultimately reversing lower courts decisions.