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
No comments:
Post a Comment