Wesene Medical Service PLC -v.- Kibrewesen A.
Federal
Supreme Court Cassation File No. 77134 (October 18, 2012)
Holding of the
Court:
When an employee endangers the goodwill, profit and survival of
the employer, the measure that should be taken must be examined in light of the
specific demands and features of the profession of the employee and the spirit
and objectives of the Labour Law.
Article 27(1)(f) and (h) of Labour Proclamation No. 377/2003
______________
Cassation File No. 77134 Tikimt 8, 2005 E.C. (October 18, 2012)
Federal
Supreme Court Cassation Division
Justices: Tegene Getaneh,
Teshager G/Selassie, Almaw Wolie,
Ali Mohammed, Adane Negussie
Petitioner: Wesen Medical Services PLC
Respondent: K.A.
Judgment
The respondent, Dr. K. A., was the plaintiff at the Federal First
Instance Court and claimed that his contract of employment was unlawfully
terminated by the petitioner and he sought compensation. The petitioner, on the
other hand, argued that the contract was terminated on lawful grounds as the
respondent was repeatedly tardy and constantly in disagreement with patients.
The Federal First Instance Court heard both parties and witnesses who testified
that the respondent has divulged confidential information of patients to third
parties. The witnesses also stated that he is not in good terms with patients
and that patients usually ask for a refund because he comes in late. The
respondent did not rebut these testimonies. So, the court decided that the
termination was lawful.
The respondent, then, appealed to the Federal High Court. The
court heard both sides and decided that the decision of the lower court based
on the interpretation of sub-Articles (a) and (b) of Article 27(1) of the
Labour Proclamation No. 377/2003 that deal with damages caused due to an
employee’s tardiness was wrong. Furthermore, it reversed the decision of the
lower court stating that the termination of the contract of employment was
unlawful because violation of discipline in the medical profession is not a
ground for terminating that contract under the proclamation.
This petition submitted to the Cassation Division of the Federal
Supreme Court on February 9, 2012 states that the respondent has caused damage
to the goodwill and profit of the organization. The respondent has the
responsibility to abide by professional ethics. However, even though it was
proven that he was violating these ethical rules, it was decided by the lower
courts that the termination of the contract of employment was unlawful. Thus,
the petitioner argued that there is a fundamental error of law in this
decision.
The respondent in his response submitted on 27 June 2012 argued
that the grounds raised by the petitioner are not sufficient for termination of
the contract of employment without notice.
This court has examined whether the decision rendered by the
Federal High Court has a fundamental error of law. This court has found that it
has been proven in the lower courts that the respondent has gone against the
ethics of the medical profession by revealing confidential information of
patients to third parties. Moreover, there were testimonies that the respondent
has verbally abused patients and had conflicts with them.
A colleague of the respondent testified that he divulged
confidential information of patients to unauthorized third parties. She added
that around the time of the termination of his contract of employment, she
heard him telling third parties that a certain lady was living with HIV/AIDS
and he was even calling her name. Patients of the respondent, while he was an
employee of the petitioner, also testified that he mistreated and insulted
them. They also added that they stopped going to the petitioner’s medical
services. The credibility and weight of these testimonies were examined by the
lower court.
In spite of such testimony, the appellate court found the decision
of the lower court to be wrong, stating that the lower court’s finding about
the damage caused by the respondent on the goodwill and profit of the
petitioner was based on insufficient evidence. The appellate court did not
question the credibility and weight of these testimonies. However, it overruled
the decision of the lower court stating that these testimonies were not
sufficient to show that the termination of the contract of employment was
lawful.
The fact that the respondent has not contested the credibility and
weight of the testimonies given against his misconduct, and whether these
faults are sufficient grounds to terminate the contract of employment must be
evaluated in light of the type of services the petitioner provides and its
responsibilities along with the damages caused by the respondent.
According to Article 13(1) and (2) of the Proclamation No
377/2003, every worker has the obligation to perform in person the work
specified in the contract of employment and to follow instructions given by the
employer based on the terms of the contract and work rules. It can also be
understood from Article 11(1) of Regulation No. 174/1986 E.C. of the Council of
Ministers that the respondent should perform his duties in accordance with
rules of professional ethics, respecting patients and keeping confidential
information. If he does not do so and if he continues to work for the
petitioner, the petitioner’s license may be suspended or revoked. In addition
to these, it can be gathered from Articles 399 and 400 of the Criminal Code
that the respondent’s act of disclosing patients’ confidential information to
third parties results in criminal liability.
It can be understood from the above mentioned Regulation No.
174/1986 E.C. that the acts of the respondent which are proven have negatively
affected the goodwill of the petitioner, made it less competitive in the market
and it could have resulted in the suspension or cancellation of its license.
Therefore, according to Article 27 (1)(f) of the Labour Proclamation, the
respondent is responsible for causing quarrels with his patients at the work
place, violating the medical profession’s ethical code and jeopardizing the
goodwill, profit and survival of the petitioner’s medical services.
Article 27 (1)(h) of Proclamation No 377/2003, the respondent’s
disregard of his professional ethical responsibilities, the utmost ethical
expectations and unique features of the medical profession and the damages
caused or that could have been caused on the petitioner must be carefully
examined. The case must be examined in light of the objective of the Labour
Law, its contents and all other legislation enacted to regulate licensing of
medical services.
This court has found that the respondent’s violations fall under
Article 27(1)(f)&(h) of Proclamation No 377/2003 and the contract of employment
can be terminated without notice. In spite of this, however, the Federal High
Court decided that the respondent’s violations are not sufficient to cause the
termination of the contract based on this provision. This court has thus found
that the decision of the Federal High Court has a fundamental error of law.
Decree
1.The decision of the Federal High Court is reversed.
2.The decision of the Federal First Instance Court is affirmed.
3.The court has decided that the petitioner’s termination of the
contract of employment of the respondent is lawful.
….
Signatures of five justices _______________________
Source: Federal Supreme Court Cassation Division Decisions
Volume: 14, pp 5-7.
Abridged translation: Selam Abraham
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