MUGANGA v HOPITAL LA CROIX DU SUD

# MUGANGA v HOPITAL LA CROIX DU SUD

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2024-12-30 - Case/document no.: RS/INJUST/RSOC00002/2021/CA - Collection: Court of Appeal

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MUGANGA v HOPITAL LA CROIX DU SUD [Rwanda COURT OF APPEAL – RS/INJUST/RSOC00002/2021/CA (Munyangeri, P.J., Kamere and Rutazana, J.) December 30, 2024] Labour procedure– Employment contract – Suspension of employment contract – The fact that an employee is provisionally detained by a competent authority for a period not exceeding six months, and fails to notify his/her employer, but notifies him/her as soon as s/he is released, is not considered a gross misconduct for job desertion, instead, a reasonable ground for the temporary suspension of the employment contract. Facts: Muganga was a nurse at Hôpital La Croix du Sud, under an indefinite employment contract that started on 01/10/2019. She was later fired for the gross misconduct for job desertion, where she claims that she was detained by the Police when she was summoned for the fourth time, because his employer (Hôpital La Croix du Sud) did not allow her to respond to the first three summons. She contends that she was detained on 07/11/2014 and the employer dismissed her on 24/11/2014 despite being aware that her absence was caused by her detention. Hôpital La Croix du Sud contended that the claimant was not unlawfully dismissed, because she was dismissed for the gross misconduct for job desertion,

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especially that when she was dismissed, it was unaware that she was detained. In the judgment rendered by the Intermediate Court of Nyarugenge, the Court declared the claimant's claim founded in part, that she was unlawfully dismissed, and ordered the defendant to pay her various dismissal- related damages. The respondent appealed to the High Court, arguing that in the appealed case, the Court held that the claimant was unlawfully dismissed only based on her submissions, yet she was dismissed for the gross misconduct for job desertion, and that it was unaware that she was detained. The claimant defended by insisting that her employer dismissed her being aware that she was detained, as her child told to the court bailiff who brought the letter dismissing her. In the judgment rendered by the High Court, the Court declared the appeal of Hôpital La Croix du Sud founded, the judgment of the appealed judgment was overturned, and ordered Muganga to pay them the costs incurred in the case. The claimant requested that the judgment be reviewed on grounds of injustice, and the Supreme Court ruled that the case be tried by this Court of Appeal, where she explained that the injustice she was subjected to was based on the fact that the High Court ignored the law and elements of evidence by upholding that she was lawfully dismissed from work, alleging that when the respondent dismissed her for job desertion, it did not know her whereabouts, and the fact that she was not granted the

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claimed damages including unfair dismissal-related damages, for unpaid leave for 2014, for not being given work certificate as well as damages for procedural and advocate fees. The claimant explains that she was unlawfully dismissed because her former employer knew that she was detained for failing to respond to three summons sent by the Police after being denied an authorized absence, so that the Police came to take her at the workplace as if she had disappeared. She also claims that upon her release, she personally informed her employer that she had not been to work because she was detained and presented to it a proof despite the employer ignored her statement and continued to treat her as if she had deserted her job. In this injustice related case, the respondent explains that apart from claiming that it was aware that she was detained but ignored it and dismissed her, the claimant failed to provide conclusive elements of evidence. It also states that it only learnt about her detention when the claimant resumed to work and mentioned it, but she had already been dismissed. Held: The fact that an employee is provisionally detained by a competent authority for a period not exceeding six months, and fails to notify his/her employer, but notifies as soon as s/he is released, is not considered a gross misconduct that leads to dismissal, but instead a ground for the temporary suspension of the employment contract.

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The claim for review of the judgment on grounds of injustice is partially founded. Statutes referred to: Law no 30/2018 of 02/06/2018 determining the jurisdiction of courts, article 55. Law no 22/2018 of 29/04/2018 relating to the civil, commercial, labour and administrative procedure, article 12 and 111. Law n0 13/2009 of 27/05/2009 regulating labour in Rwanda, article 25, 29, 32, 33 and 60. Cases referred to: GAHIRE ATHANASE v MUKARUSHAKIRO GLORIOSE, RS/INJUST/RC00008/2019/SC, decided by the Supreme Court on 12/11/2021. CITY OF KIGALI v NDAKENGERWA GASANA AIMABLE, RS/REV/INJUST/RAD00005/2018/SC, decided by the Supreme Court on 15/03/2019. Judgment I. BACKGROUND OF THE CASE [1] Muganga Eugénie worked for Hôpital La Croix du Sud from 01/10/2009 to 24/11/2014 when she was dismissed from her job as a nurse under an indefinite duration contract. She states that she was summoned to the Police Station three times but each time her employer denied her permission to appear before the Police

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Station, until on 17/11/2014 when she honoured the fourth summons, and the Police immediately arrested and detained her because she had not honoured the three previous summons. [2] She explains that as soon as the management of Hôpital La Croix du Sud learnt that she was detained, it immediately terminated the employment contract, because two (2) weeks after she was released, she found at home a letter of 24/11/2014 terminating the contract on the grounds that she had deserted her job, yet she never deserted it because she was detained and her employer was aware of it, such fact prompted her to file a case before the Intermediate Court of Nyarugenge seeking various damages resulting from that dismissal. [3] Hôpital La Croix du Sud contended that Muganga Eugénie was not unlawfully dismissed, because she was dismissed for the gross misconduct of job desertion, especially since by the time she was dismissed, Hôpital La Croix du Sud never knew that she was detained. [4] In the case RSOC00318/2017/TGI/NYGE decided by the Intermediate Court of Nyarugenge on 25/05/2018, the Court, based on articles 29, 32, and 33 of Law No 13/2009 of 27/05/2009 regulating labour in Rwanda (the law which was in force at the time when Muganga Eugénie was dismissed), and article 12 of Law No 22/2018 of 29/04/2018 relating to the civil, commercial, labour, and administrative procedure, declared that the case of Muganga Eugénie was partially well-founded, and ordered Hôpital La Croix du Sud to

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pay to Muganga Eugénie 2,326,780 Frw for various damages and to refund her 50,000 Frw for deposited court fee. [5] Hôpital La Croix du Sud appealed against that judgment before the High Court, alleging that the Intermediate Court had ruled that Muganga Eugénie was unlawfully dismissed as a result of job desertion while she had been detained, and Hôpital La Croix du Sud was aware of that fact, but it proceeded to dismiss her. The judgment was based on the arguments of Muganga Eugénie, in which she stated that when the court bailiff came to her home to notify her the gross misconduct for job desertion and the letter terminating the employment contract, her child informed the court bailiff that her mother had been detained. [6] It submits that, in making that decision, the Court ignored the fact that there was no evidence proving that the court bailiff had informed Hôpital La Croix du Sud that Muganga Eugénie was detained and therefore, the Court would not have based on unsubstantiated submissions to conclude that Hôpital La Croix du Sud dismissed Muganga Eugénie while being fully aware of her detention, or declared that she did not desert her job but instead, the Court would have upheld its arguments that Muganga Eugénie was dismissed for gross misconduct for job desertion since she had been absent from work for more than two (2) days without informing the employer of her whereabouts while according to Hôpital La Croix du Sud internal regulations, being

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absent from work for two days without permission constitutes gross misconduct. [7] In her defense, Muganga Eugénie reiterated that Hôpital La Croix du Sud dismissed her while fully aware that she had been detained, since her child had informed the court bailiff of her detention. [8] In the case RSOCA00157/2018/HC/KIG decided by the High Court on 26/04/2019, the Court, basing on article 25 and 60 of Law n0 13/2009 of 27/05/2009 mentioned above, and articles 83(b) and 84(b) of the internal regulations governing the functioning of Hôpital La Croix du Sud, declared the appeal of Hôpital La Croix du Sud founded, overturned the judgment of the lower Court and held that Muganga Eugénie was not unlawfully dismissed. The Court ordered to Muganga Eugénie to pay Hôpital to La Croix du Sud 1,000,000 Frw for advocate and procedural fees. [9] Muganga Eugénie applied for the review of the judgment RSOCA00157/2018/HC/KIG on grounds of injustice. In decision n0 231/CJ/2021 of 30/09/2023, the President of the Supreme Court granted the request and referred the case to the Court of Appeal for hearing. The case was registered under n0 RS/INJUST/RSOC00002/2021/CA. [10] The case was heard in public on 04/12/2024, Muganga Eugénie was assisted by Counsel Niyibizi Diogène, while Hôpital La Croix du Sud was represented by Counsel Muhozi Paulin; the hearing was closed, and

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its pronouncement was scheduled for 20/12/2024 but was postponed on 30/12/2024. [11] In their pleadings and submissions, Muganga Eugénie and her counsel argued that the judgment under review denotes injustice based on the fact that the High Court ignored the law and the evidence and held that her dismissal was lawful stating that when Hôpital La Croix du Sud dismissed her on grounds of job desertion, the Hospital actually did not knew her whereabouts and the fact that the High Court did not grant her the damages she had claimed, including damages for unlawful dismissal, unpaid annual leave for the year 2014, damages for failure to issue her a work certificate, as well as procedural and advocate fees. Counsel for Hôpital La Croix du Sud states that no injustice was committed against Muganga Eugénie, as she had been absent from work without providing any justification. Upon realizing that she was not reporting to work, Hôpital La Croix du Sud decided on 24/11/2014 to terminate her employment contract. At the time of her dismissal, the employer had not been informed that she was detained and therefore should not be entitled to claimed damages, instead, Hôpital La Croix du Sud should be entitled to procedural and advocate fees. [12] Based on these arguments, the legal issues to be analysed are the following: - Whether Muganga Eugénie was unlawfully dismissed;

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- Whether Muganga Eugénie is entitled to various claimed damages arising from unlawful dismissal; - Matters relating to the procedural and counsel’s fees claimed by both parties. II. ANALYSIS OF LEGAL ISSUES i. Whether Muganga Eugénie was unlawfully dismissed [13] Muganga Eugénie and her Counsel argue that she was unlawfully dismissed as a result of job desertion, yet she never did, instead she was detained and her employer was fully aware of it, because, when she was denied the permissions to honour the summons three times at the Police station, Police officers in their work uniforms visited her workplace as if she was absent and told them that she would have to appear the following morning after work. Consequently, on the morning of November 17, 2014, she honoured the summons and was immediately detained, which means that her employer was also fully aware of her whereabouts. [14] They also state that an employee named Antoinette, who had spent the night with Muganga Eugénie the day before her detention, talked to the Police officers who came to see her and even visited her at the detention facility, she told her that a staff meeting had taken place, after which Hôpital La Croix du Sud sent someone to verify whether she was indeed detained. Consequently, the dismissal letters were sent to her home

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by a court bailiff after Hôpital La Croix du Sud had confirmed that she would not report to work due to her detention and her child, who was at her home, informed the court bailiff that her mother was detained. They argue that, there is no clear evidence to prove that the child informed the court bailiff, but in the discretionary power of the Court, it should determine that it is unlikely that an employee would be absent from work while his/her employer is unware of his/her situation or does not attempt to find out the reason for absence. [15] They further state that as soon as Muganga Eugénie was released, she herself informed her employer that she would not be reporting to work because she had been detained, and she presented supporting elements of evidence, however, her employer disregarded such fact and continued to treat her as if she had deserted her job. [16] They also argue that although Muganga Eugénie was dismissed while she was detained, and the fact that the dismissal letter was written on 21/11/2014 shows that the decision was taken before the two (2) days provided by the internal regulations of Hôpital La Croix du Sud for an employee to be considered having deserted his/her job, because the days from 17 to 21 November 2014 were considered as days off, and they do not understand how the employee could be considered having deserted her job while she was also on leave during those days prior to the decision terminating her employment contract. During the hearing, the Court asked to Counsel Niyibizi Diogène and her client whether the issue of Muganga Eugénie being dismissed while on days off had been raised in this case

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in previous courts, and they responded that they did not raise such issue. [17] The Counsel for Hôpital La Croix du Sud argues that apart from the fact that Muganga Eugénie claims that her employer knew that she was detained but also ignored it and dismissed her, she does not provide any conclusive elements of evidence, and the information provided by her child to the court bailiff, the latter did not report it to Hôpital La Croix du Sud. He avers that Hôpital La Croix du Sud only learned about her imprisonment after the release of Muganga Eugénie, she returned to work and indicated that she was detained, but she realized that she had already been dismissed. [18] Regarding the claim that Muganga Eugénie was unlawfully dismissed while she was on days off, the Counsel argues that she should not raise this issue for the first time during the hearing of the case under review on grounds of injustice, since she never presented it for consideration either before the Office of Ombudsman or in any of the lower Courts. [19] Article 55, paragraph 2° of Law n0 30/2018 of 02/06/2018 determining the jurisdiction of courts provides the grounds on which a case may be reviewed on grounds of injustice, including whether the judgment was rendered in disregard of laws or elements of evidence that are clear to everyone. This means that, in explaining the basis of their alleged injustice, the parties present elements of evidence or legal provisions that were presented before the court in the case under review but were disregarded which would have been beneficial to

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them. This means that as regards the issues not considered, viz the issues not raised by a party before the judge for consideration, a party cannot later pretend that he/she wronged him/her1. [20] The Court finds that, in the case sought for review on grounds of injustice, the issue concerning the dismissal of Muganga Eugénie while she was on days off was never raised by the parties. This is further confirmed by the submissions of both parties before this Court, where Hôpital La Croix du Sud stated that Muganga Eugénie never raised that issue before the lower Courts, and Muganga Eugénie and her Counsel also acknowledged it. Therefore, Muganga Eugénie cannot claim to have been subjected to injustice on the issue that was never raised before the Court for consideration based on article 55 mentioned above; for that reason, this ground of injustice should not be considered. ii. Regarding the issue that Muganga Eugénie was dismissed on ground of job desertion while she was detained [21] Article 25, paragraph 7, of Law n0 13/2009 of 27/05/2009 regulating labour in Rwanda (the law which was in force at the time Muganga Eugénie was dismissed) provides that an employment contract shall be suspended when the employee is held under

1This was explained by the Supreme Court in the case RS/INJUST/RC00008/2019/SC, decided on November 12, 2021, Gahire Athanase vs. Mukarushakiro Gloriose.

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provisional detention for a period not exceeding six (6) months. [22] Whether an employee may be dismissed for job desertion while the employer claims that during the period of alleged job desertion, the employee was in detention and unable to inform the employer, rather he/she informed the employer just after his/her release, the Supreme Court, basing on the legal provision mentioned above, analysed and addressed this issue in the case RS/REV/INJUST/RAD00005/2018/SC decided on 15/03/2019, in the City of Kigali v. Ndakengerwa Gasana Aimable, especially in paragraph 24 of that judgment, the Court found that the seven-day period during which Ndakengerwa Gasana Aimable was absent from work (from 4/09/2015 to 11/09/2015) corresponded to the time he was detained by the Police and he immediately informed his employer just after his release, the Court concluded that the fault of job desertion, which was among the grounds for his dismissal, could not be upheld against him “because he could not report to work while being detained by a competent authority”. [23] The case file contains a statement of 17/11/2014 indicating that, as of that date, Muganga Eugénie was detained at Remera Police Station. A letter from Hôpital La Croix du Sud of 21/11/2014 indicates that Muganga Eugénie was accused of committing a gross misconduct for job desertion starting from 17/11/2014, which was the reason for her dismissal. The dismissal letter was delivered to her residence by a court bailiff on 24/11/2014, while she was absent.

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[24] In the judgment RSOCA00157/2018/HC/KIG under review on grounds of injustice, the High Court found that Hôpital La Croix du Sud did not deny that during the entire period Muganga Eugénie was absent from work, she was detained. However, the Court noted that the issue was that the employer terminated the employment contract without having been informed that she was detained. Therefore, in paragraph 12 of that judgment, basing on the fact that Muganga Eugénie did not provide any evidence to prove that, while she was detained, she had informed her employer that her absence from work was due to her detention, or any evidence proving that she was unable to find someone to inform her employer on her behalf, the High Court concluded that her employer lawfully dismissed her since the termination occurred before the employer was informed of her detention. [25] The Court finds that, regardless of the various arguments presented by Muganga Eugénie that her employer was informed during her detention, and considering only that both parties agree that upon her release, Muganga Eugénie immediately reported to work and informed her employer that she had been absent from work because due to detention, the circumstances of Muganga Eugénie are exactly similar to those of Ndakengerwa Gasana Aimable in the aforementioned case against the City of Kigali. [26] The Court finds that, as in the case of Ndakengerwa Gasana Aimable, the undisputed issue is that the absence of Muganga Eugénie from work

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occurred while she was detained, and that she informed her employer, Hôpital La Croix du Sud, just after her release. Therefore, just as the Supreme Court held in the case of Ndakengerwa Gasana Aimable that the fault for job desertion for which he had been dismissed could not be attributed to him during the period of his detention he could not inform his employer of the circumstances, the Court similarly finds that, in this case, the High Court should not have held Muganga Eugénie responsible for the gross misconduct for job desertion during the period she was absent from work, as her absence was due to detention and she was only able to inform her employer after her release. [27] The Court finds that, however Hôpital La Croix du Sud argues that it dismissed Muganga Eugénie without knowing that she was detained, and the High Court relied on this to declare that she was lawfully dismissed for job desertion, by the time she informed her employer that she was under provisional detention pending investigation for the offences by the competent authority which is also a ground for the suspension of an employment contract as provided under the provision of law mentioned above, the employer should no longer have treated her as having deserted her job as it was aware that she was detained. Therefore, by continuing to treat her in that manner, instead of complying with the law applicable to a person under detention, and persisting with the decision to dismiss her for the gross misconduct for job desertion, the Court finds that it is clear that Muganga Eugénie was unlawfully dismissed based on the above-mentioned position set by the

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Supreme Court in a similar case; therefore, such constitutes injustice that occurred in the judgment under review. iii. Whether Muganga Eugénie is entitled to the various claimed damages resulting from the alleged unfair dismissal [28] The Counsel for Muganga Eugénie argues that, as she was unfairly dismissed, she seeks damages equivalent to six (6) months of her salary, explaining that she was paid 285,000 Frw per month, meaning that the claimed damages amount to 1,710,000 Frw (285,000 Frw x 6 months). [29] He also states that in 2014 when Muganga Eugénie was dismissed, she was not granted the leave she was entitled to, and therefore, she is seeking damages equal to her one-month salary of 285,000 Frw. He explains that although Hôpital La Croix du Sud included in the case file a final settlement and a cheque to prove that the funds were received, the cheque was never delivered to Muganga Eugénie, and the money was not deposited on her account. Hôpital La Croix du Sud should provide evidence proving that the money actually reached her, and that if it could provide evidence, such as a bank statement showing where the money was transferred from Hôpital La Croix du Sud to Muganga Eugénie, which would be admitted without reopening the case for examining that evidence. [30] In his submissions, the Counsel for Muganga Eugénie also stated that she was seeking damages for

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failure of Hôpital La Croix du Sud to issue a work certificate. [31] The Counsel for Hôpital la Croix du Sud argues that the damages for unlawful dismissal is unfounded, because Muganga Eugénie was dismissed for her gross misconduct for job desertion. [32] He argues that the damages for the 2014 annual leave is unfounded, as Muganga Eugénie received it as indicated in her final statement and the cheque for payment attached to the case file in IECMS. He adds that he believes that there is no longer any issue with regard to this amount because in previous courts, Muganga Eugénie never contended that she did not receive it. [33] He argues that, regarding the damages arising from the failure to issue a work certificate, constitutes a new claim and, therefore it should not be examined for the first time at the first level in the hearing of the judgment on grounds of injustice. DETERMINATION OF THE COURT a. Regarding damages resulting from unlawful dismissal [34] Article 33 of Law n0 13/2009 of 27/05/2009 mentioned above provides as follows: any unlawful termination of contract may give rise to damages. The damages paid to the unlawfully dismissed worker cannot

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go below his/her three months’ salary but they cannot exceed the six (6) - month salary. [35] The Court finds that the damages arising from unlawful dismissal requested by Muganga Eugénie should be granted as requested, which means that she is entitled to damages of Frw 285,000 x 6 months = 1,710,000 Frw, based on the provisions of the Law mentioned above and upon which this Court relied in many other similar cases, the amount of damages requested is appropriate for an employee who was dismissed from a job she had held for about five (5) years. b. Annual leave compensation indemnity [36] As mentioned above, article 55, 2o of Law No 30/2018 of 02/06/2018 determining the jurisdiction of the courts provides that in explaining the grounds of their injustice, the parties may refer to evidence or laws that were presented to the court in the judgment under review and disregarded and that would have been beneficial to them. This means that as regards the issues not considered, viz the issues not raised by a party before the judge for consideration, a party cannot later pretend that he/she wronged him/her. [37] The case file indicates that before the Intermediate Court of Nyarugenge, Muganga Eugénie sought various damages arising from her unlawful dismissal, including compensation for unpaid leave that she had not been granted in 2014. Noting that the case file contained a final settlement and a cheque showing

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that Muganga Eugénie had already received the payment, the Intermediate Court held that she had indeed received it and should not be compensated for it again. [38] The case file indicates that, when Hôpital La Croix du Sud appealed against the judgment before the High Court, requesting that the judgment be overturned on the grounds that Muganga Eugénie had been lawfully dismissed, Muganga Eugénie responded that the appeal was unfounded and she also filed a cross-appeal, requesting only to be awarded advocate and procedural fees, she concluded by requesting the High Court to only overturn the appealed judgment with respect to advocate and procedural fees. [39] Basing on the foregoing elements contained in the case file, the Court finds that the Intermediate Court, in ruling that Muganga Eugénie was not entitled to damages of her 2014 annual leave, based on the fact that the case file contained evidence proving that she had already received that payment, namely the final settlement and the cheque. [40] The Court finds that Muganga Eugénie did not appeal against that decision before the High Court contending that the money had neither been deposited on her account nor received the cheque. Instead, she only requested that the judgment of the Intermediate Court be modified with respect to advocate and procedural fees. Therefore, the Court finds that, since she did not raise those issues in the previous proceedings, she should not claim to have been wronged and seek their reconsideration at this stage.

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a. Regarding damages resulting from failure to issue work certificate [41] Regarding the damages resulting from work certificate that Muganga Eugénie alleges to have not been granted, the Court finds that during the hearing, both parties agreed with the Court that this issue had never been raised in the previous courts, as Muganga Eugénie had never raised it. It was therefore agreed that this matter would not be examined at this level. b. Regarding the advocate and procedural fees claimed by both parties [42] Muganga Eugénie and her counsel argue that she was dragged into unnecessary lawsuits and therefore requests 1,500,000 Frw for advocate fee for all instances, and 200,000 Frw for procedural fee. [43] The Counsel for Hôpital La Croix du Sud contends that it was Muganga Eugénie herself who dragged herself into unnecessary lawsuits, fully aware that she had been lawfully dismissed and therefore she is not entitled to the damages she is claiming, instead, he requests that Muganga Eugénie should be ordered to pay 1,500,000 Frw for advocate fee and 200,000 for procedural fee, in addition to the damages granted by the High Court. DETERMINATION OF THE COURT

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[44] Article 111 of Law Nº 22/2018 of 29/04/2018 relating to the civil, commercial, labour, and administrative procedure provides as follows: the claim for representation fees is an incidental claim to the principal claim aiming to repay expenses incurred during judicial proceedings. The claim for legal costs is adjudicated at the same time with the principal claim. It can also be admitted and adjudicated even if the principal claim has not been admitted. [45] The Court finds that the advocate and procedural fees claimed by Muganga Eugénie are justified, since this case required her to hire a lawyer to assist her at this level as well as the previous two instances. The Court also finds that the advocate fee of 1,500,000 Frw claimed for the three levels are appropriate, calculated at 500,000 Frw for each level, and that 200,000 Frw claimed as procedural fee for all three levels are justified. [46] Regarding the advocate and procedural fees claimed by Hôpital La Croix du Sud, the Court finds that they are unfounded, as Hôpital La Croix du Sud has lost the case on the principal claim. III. DECISION OF THE COURT [47] Holds that the claim filed by Muganga Eugénie seeking the review of the judgment RSOCA00157/2018/HC/KIG on grounds of injustice, which was rendered by the High Court on 26/04/2019, is partially founded.

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[48] Holds that Hôpital La Croix du Sud unlawfully dismissed Muganga Eugénie. [49] Orders to Hôpital La Croix du Sud to pay to Muganga Eugénie a total amount of three million four hundred ten thousand Rwandan francs (Frw 3,410,000), including 1,710,000 Frw as damages for unlawful dismissal, 1,500,000 Frw as advocate fee, and 200,000 Frw as procedural fee at all levels.