Addis Ababa Restaurant -v.- Yewubdar T.- Variation of Employment Contract-changing the job position of an employee-Cassation File No. 37256 V8

 Addis Ababa Restaurant -v.- Yewubdar T.

Federal Supreme Court Cassation

File No. 37256 (November 13, 2008)

Holding of the Court

In spite of an employee’s acquittal in a criminal charge, he/she may be transferred to a different job assignment as long as the employer’s level of trust on the employee is adversely affected. This measure does not conflict with the object and purpose of the law.

Proclamation No. 377/2003, Article 15

______________

Cassation File No. 37256

Hidar 4, 2001 E.C. (November 13, 2008)

Federal Supreme Court Cassation Division

Justices: Abdulkadir Mohammed, Teffesse Yirga, Tsegaye Asmamaw,

Almaw Wolie, Ali Mohammed

Petitioner: Addis Ababa Restaurant

Respondent: Yewubdar T.

The Court has examined the case and rendered the following judgment.

Judgement

The suit initially submitted to the Federal First Instance Court involved the effect of subsequent criminal acquittal on previous disciplinary dismissal. The case was initiated by the present respondent with a view to obtaining reinstatement and back pay for alleged unlawful termination of her contract of employment by petitioner.

The following facts were proved. The respondent was an employee of the petitioner in a job position of a cashier. But her employment was terminated due to a criminal action instituted against her in connection with an alleged misappropriation of money. However, the public prosecutor withdrew the criminal charge against her and the petitioner reinstated her to employment but assigned her to another position. She then filed a suit at the Federal First Instance Court to obtain an order requiring the petitioner to reinstate her as a cashier and for back pay.

In its reply, the petitioner argued that the reason for her termination was misappropriation of cash which she has partly repaid, and noted that it is difficult to assign her as a cashier again. The petitioner stated that the respondent would have deserved termination but she was reinstated taking her family responsibilities into consideration. The petitioner (defendant at the lower court) also contested the respondent’s claim for back pay as she did not render service to the employer while her employment was terminated.

The First Instance Court held that the employer’s measure in changing the respondent’s job position was modification of contract and that the employer cannot unilaterally modify a contract of employment. It thus ordered the petitioner to reinstate her to a position of a cashier with four months salary in the form of back pay. Although the petitioner lodged an appeal before the Federal High Court, the appellate court also affirmed the lower ruling.

Finally, the petitioner filed a petition to the Federal Supreme Court Cassation Division stating that the lower courts have committed a fundamental error of law in interpreting the provisions of the labour law.

The Cassation Division has examined the case. The lower court’s record shows that the respondent was employed in 1991 in a job position of a cashier at the petitioner’s enterprise. She was alleged to have misappropriated Birr 4,219 (four thousand two hundred nineteen) out of which she has paid back Birr 1,950 (one thousand nine hundred fifty) but failed to pay the remaining balance. She was thus suspended from job and a criminal action was brought against her. However, she was acquitted from the criminal proceedings. It was as a result of the acquittal that she claimed reinstatement and back pay.

The Cassation Division framed the issue whether an employee entitled to reinstatement and back pay where misappropriation of money was verified but criminal prosecution was dropped by the public prosecutor.

This Cassation Division observed that a criminal charge and legal actions based on the labour law have different contents and goals. While criminal liability addresses state and societal concerns, a disciplinary measure is an internal and administrative measure. In addition to their differences in purpose and goal, the level of evidence required to prove a criminal charge is different from the standard of proof required under labour law. Conviction under criminal charge requires evidence that proves the case ‘beyond reasonable doubt’. However, less convincing evidence is sufficient to succeed in a disciplinary action based on the labour law. Thus it is highly likely that a person who is acquitted from a criminal charge may still be held liable for breach of discipline.

In the case at hand, the lower court has verified that the respondent admitted to have repaid a certain amount of money. Although the petitioner did not assign her in her previous job position, it has reinstated her in another job position. The reason why the lower courts nullified the petitioner’s measure was that such a change in the contract of employment does not meet the requirements of Art.15 of Proclamation No. 377/2003. Nevertheless, the cause for the change of job position is that the respondent has breached the trust placed in her while she was serving in the previous position. It should be borne in mind that it is a managerial prerogative to assign employees in a position that fits them. Hence, the petitioner’s measure in the present case is not in conflict with the object and purpose of the law.

The respondent did not contest the allegation of misappropriation, but rather argued that she was acquitted from the criminal charge. Hence the allegation that the petitioner’s property was misappropriated is [impliedly] admitted. Thus, the petitioner should not be compelled to reinstate the respondent to her previous job position under these circumstances as long as it does not have trust on the employee.

Therefore, the holding of the lower court that regarded the petitioner’s measure as unlawful emanated from the failure to examine the litigation of the parties and by unduly citing Article 15 of Proclamation No. 377/2003. As the ruling of the lower courts was against the sprit and purpose of the law, it is held that it contains a fundamental error of law.

Decree

1.The decision of the Federal First Instance Court and the Federal High Court are reversed pursuant to Article 348(1) of the Civil Procedure Code.

2.The respondent shall not be reinstated in the job position of a cashier.

...

Signature of five justices

__________________________________________________
Source: Federal Supreme Court Cassation Division Decisions Volume 8, pp. 116-118

Abridged translation: Mehari Redae