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.
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