NIYONAGIZE v. DUHUZUMURIMO WA KAROTI

# NIYONAGIZE v. DUHUZUMURIMO WA KAROTI

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2023-02-17 - Case/document no.: RS/INJUST/RSOC 00012/2022/SC - Collection: Supreme Court

## Text

## Page 1

NIYONAGIZE v. DUHUZUMURIMO WA KAROTI [Rwanda SUPREME COURT – RS/INJUST/RSOC 00012/2022/SC – (Mukamulisa, P.J., Nyirinkwaya and Muhumuza, J.) 17 February 2023] Labour procedure – Employment contract – Termination of employment contract – Burden of proof – In the event of a dispute, the employer who terminated the contract is the one who provides evidence that the employee committed a mistake or engaged in misconduct. Labour procedure – Employment contract – Termination of fixed-term employment contract – Unlawful termination of employment contract is subject to various damages. Procedure governing the judgment review on grounds of injustice – Objection that can preclude the hearing of the case on the merits – If the President of the Supreme Court decides that a case should be retried on grounds of injustice, no other inadmissibility objection should be accepted, unless the party can demonstrate exceptional reasons, such as an error in the time limit for filing a claim. Facts: Niyonagize sued Duhuzumurimo wa Karoti Cooperative in the Intermediate Court of Nyarugenge, seeking for various damages for his alleged unlawfully dismissal from work, where he worked as the cooperative's accountant and secretary. He further adds that after a disagreement with the Cooperative’s new manager, he was transferred from working in the office, which was his job, to the field without any other contract with his employer, yet he continues to be held accountable for the work he used to perform in the office. Subsequently, the manager terminated his employment contract without providing any justification or any serious misconduct. The Cooperative defended itself by stating that the Plaintiff was dismissed for incompetence and failure to meet the performance expectations, and disrespecting the management structure. It also submits that in the original contract that governed them, the Plaintiff altered the starting hours of work and the duration of the contract. Regarding the change of duties, it states that only the responsibilities have been changed, while the position, salary and the nature of the work remained unchanged, except that he was moved from the office to the field. It concludes by requesting that the Plaintiff's claim should be dismissed, and that he should instead be ordered to pay them damages for being dragged into unnecessary lawsuits and counsel fee. The Intermediate Court upheld that the Plaintiff's claim is founded in parts and the Cooperative appealed to the High Court, stating that the lower Court ruled that the agreement was signed by both competent parties while there was other original agreement that the Plaintiff had altered. Niyonagize also filed a cross-appeal seeking for various damages. This instant Court ruled that the Cooperative had lawfully dismissed Niyonagize, and overturned the damages awarded to him at first instance. This prompted Niyonagize to request for review of the case on grounds of injustice, arguing that the decision had deliberately disregarded the law and the elements of evidence which indicated that he had been unlawfully dismissed, consequently, it was decided that the case would be reviewed. After deciding the dismissal of inadmissibilty objection raised by the Cooperative seeking for inadmissibility of the Plaintiff's claim for consideration, the Supreme Court first examined the grounds of injustice and whether damages should be awarded in this case.

## Page 2

On this issue, the Plaintiff explains that the High Court ruled that he was legally dismissed without any element of evidence, ignoring various elements of evidence including the the statement of the handover ceremony between him as the financial secretary of the Cooperative and the management of the Cooperative. He further requests this instant Court to examine the alleged disobedience which was considered as serious misconducts, because in the document drawn up when he was hired, they had stated that what was done before being hired, he would not be held accountable. He also states that he never received a letter informing him of the termination of his employment contract within forty-eight (48) hours, and that even the meeting in which the defendant claims to have been talking about his dismissal from work, was never informed to him. The Respondent explains that the elements of evidence proving that the Plaintiff did not prepare the report while he was supposed to prepare the minutes of the meeting, and that the person who was humiliated was making a statement. Regarding the issue that the Plaintiff had allegedly altered the employment contract, they argue that they are no longer considering it as a ground for the termination of the contract because they do not have evidence for it, he requests that those issues should not be examined in this present case. On the issue of whether there are damages that should be awarded in this present case, the Plaintiff requests to examine those he had claimed in the Intermediate Court which include those for unlawful dismissal, unpaid salaries, procedural fees and counsel's fees; while the Defendant argues that they would not be awarded, stating that it is the one who must explain his claim and provide evidence. Held: 1. If the President of the Supreme Court decides that a case should be retried on grounds of injustice, no other inadmissibility objection should be accepted, unless the party can demonstrate exceptional reasons, such as an error in the time limit for filing a claim. 2. In the event of a dispute, the employer who terminated the contract is the one who provides elements of evidence that the employee committed a mistake or engaged in misconduct. Therefore, Koperative Duhuzumurimo wa Karoti unlawfully dismissed Niyonagize Augustave, as it failed to provide any proof of misconduct or failure to fulfill his responsibilities, other than verbally stating such alleged fact. 3. Unlawful termination of employment contract is subject to various damages. Therefore, Koperative Duhuzumurimo wa Karoti has unlawfully terminated the employment contract concluded with Niyonagize Augustave, and it must pay to him various damages. Application for judgment review on grounds of injustice is founded in parts. Statutes and statutory referred to: Law N° 66/2018 of 30/08/2018 regulating labour in Rwanda, article 3. Law Nº 30/2018 of 02/06/2018 determining the jurisdiction of courts, article 55. Law N°22/2018 of 29/04/2018 relating to the civil, commercial, labour and administrative procedure, article 111. Law N° 13/2009 of 27/05/2009 regulating labour in Rwanda, article 28. Law N°15/2004 of 12/06/2004 relating to evidence and its production. Case laws referred to:

## Page 3

Niwemugeni Jeannette v KCB Bank Rwanda Ltd, RS/INJUST/RSOC 00001/2019/SC decided by the Supreme Court on 31/01/2019. Busoro Gervais v Busoro Mugunga Desire et Al., RS/INJUST/RC 00022/2018/SC decided by the Supreme Court on 21/06/2021. Judgment I. BACKGROUND OF THE CASE

Niyonagize Augustave sued Koperative Duhuzumurimo wa Karoti (Cooperative) before the Intermediate Court of Nyarugenge, seeking for various damages for unlawful dismissal, his claim was registered under RSOC 00274/2017/TGI/NYGE. He states that on 31/03/2016, he was hired by the Cooperative, with a 2-year employment contract, and was appointed as Secretary- Accountant, receiving a gross salary of 97,223 Frw and the net salary was 80,869 Frw. He further claims that although the gross salary of 97,223 Frw was stipulated, he was never paid this amount. Instead, his take-home salary was only 70,000 Frw per month.

He further states that after starting the job, a new manager of the Cooperative called Kubitiro K. Audace was recruited and he expressed dislike for him, allegedly because he resisted the manager's attempts to misuse the Cooperative's funds. As a result, the manager constantly requested written explanations from him for mistakes he was unaware of, to the extent that on 08/12/2016 he changed his duties and sent him to work on the field in an unspecified position.

Niyonagize Augustave further states that he was removed from working in the office, which was his job, and was transferred to the field without any other contract with his employer, yet he continues being held accountable for his office work. He state that on 23/01/2017, the manager terminated his employment contract without giving him any reason or any gross misconduct, and requests to the Court to declare his dismissal unlawful and to order that he shold be paid all his claimed damages as set out in his claim.

The Cooperative, on behalf of its Manager, defended that the plaintiff was dismissed for incompetence, failure to perform as expected, and disrespect for the Cooperative's management structure. It also argued that in the original contract between them, the plaintiff altered the starting hours and the duration of the contract.

Regarding salary, the Cooperative states that Niyonagize Augustave was paid 97,223 Frw and received it in full, especially since he was responsible for preparing salaries as the Cooperative's accountant and secretary, and that if he miscalculated, the Cooperative would not be held responsible. Regarding the change of duties, the Cooperative says that only the responsibilities have changed, while the position and salary and the nature of the work remained the same, except that he was reassigned from the office work to field work. It concludes by stating that Niyonagize Augustave's claim is unfounded, and that he should instead be ordered to pay to them damages for dragging the Cooperative into unnecessary lawsuits and counsel's fee.

In the case RSOC 00274/2017/TGI/NYGE, decided on 03/05/2018, the Intermediate Court of Nyarugenge declared Niyonagize Augustave's claim founded in parts; declared that there was

## Page 4

no evidence to prove that the contract signed on 31/03/2016 between Niyonagize Augustave and the representative of the Cooperative, Niyoyita Jean Claude was not original; ruled that Niyonagize Augustave was unlawfully dismissed; ruled that Niyonagize Augustave's net salary should have been 80,869 Frw; ordered to Cooperative, on behalf of its Manager, to pay to Niyonagize Augustave damages for unlawful dismissal amounting to 1,361,262 Frw; 2 months' unpaid salary: 80,869 Frw x 2 = 161,739 Frw; balance of unpaid salary for 8 months is 86,952 Frw; procedural fee amounting to 200,000 Frw, 500,000 Frw for counsel's fees and 50,000 Frw for court fee deposited by the plaintiff.

The Cooperative appealed against the judgment before the High Court, arguing that the Intermediate Court of Nyarugenge had ruled that the agreement which was signed by both competent parties despite there was other original agreement that Niyonagize Augustave had altered.

Niyonagize Augustave also filed a cross-appeal against the Cooperative requesting the following : payment of notice, 7,000,000 Frw of moral damages of being dragged into unnecessary lawsuits, 500,000 Frw for procedural fee and 700,000 Frw for the counsel's fee in the appeal.

In the case RSOCA 00003/2019/HC/KIG, decided on 27/02/2020, the High Court ruled that the Cooperative had lawfully dismissed Niyonagize Augustave, that the damages awarded at first instance amounted to 1,361,262 Frw, as well as counsel’s and the procedural fee are dismissed. It also ruled that the Cooperative must pay to Niyonagize Augustave damages of 86,952 Frw for the difference in salary and 161,739 Frw for unpaid 2 months.

In making its decision, the High Court based its decision on the fact that Niyonagize Augustave had been repeatedly requested to provide explanations and that not only the President of the Cooperative had questioned about him but also the entire Cooperative Committee questioned about him, and therefore he should have been dismissed. The Court stated that there was evidence proving that Niyonagize Augustave had not filled out the book he was responsible for filling out, that the Committee had initially requested to provisionally suspend him however, his subsequent disrespect towards them ultimately led to his dismissal.

On 18/03/2020, Niyonagize Augustave wrote to the President of the Court of Appeal requesting that the case RSOCA 00003/2019/HC/KIG decided by the High Court on 27/02/2020 be reviewed on grounds of injustice, because in its decision there was a deliberate disregard of the law and evidence indicating that he was unlawfully dismissed. After considering his request, the President of the Court of Appeal in turn wrote to the President of the Supreme Court requesting that the aforementioned case should be reviewed on grounds of injustice.

The President of the Supreme Court, after examining the report prepared on the case, on 30/08/2022, took decision number 162/CJ/2022 that the case RSOCA 00003/2019/HC/KIG should be retried, the case was registered under number RS/INJUST/RSOC 00012/2022/SC.

The hearing of this case was scheduled on 24/01/2023, held in public, Niyonagize Augustave was assisted by Counsel Ruberwa Pierre, the Cooperative was represented by Counsel Ntihemuka Clément.

## Page 5

Before the hearing the case on the merits, the Court first examined the arguments of the Counsel for the Cooperative who raised the objection, where on 4/11/2022 they attached a document in the system stating that the Plaintiff does not demonstrate how the grounds on which he bases his request for a review of the case are consistent with the provisions of article 55 of Law n0 30/2018 of 02/06/2018 determining the jurisdiction of courts, which provides for grounds of injustice that justify a review of the case; that therefore, the claim of Niyonagize Augustave should not be admitted for consideration. The Court immediately ruled on this, stating that it had set position on this in various cases, in the event that President of the Supreme Court decides that a case should be retried on grounds of injustice, no other inadmissibility objection should be accepted, unless the party can demonstrate exceptional reasons, such as an error in the time limit for filing a case.1

In this instant case, issues to be examined are whether the High Court ignored the evidence proving that Niyonagize Augustave was unlawfully dismissed and whether any damages should be awarded. II. ANALYSIS OF LEGAL ISSUES i. Determine whether Niyonagize Augustave was unlawfully dismissed from his job

Counsel Ruberwa Pierre, Counsel for Niyonagize Augustave, argues that the injustice in this case is based on the fact that the High Court Judge, declared that his client was lawfully dismissed without any supporting evidence. He contends that while the Cooperative stated that his client failed to prepare a report, they also acknowledged that on the day his job responsibilities were changed, a handover ceremony took place between him, as the Cooperative's Financial Secretary, and the Cooperative's management.

He further states that he requests to the Court to examine the alleged disobedience of his client which was considered as serious misconducts, because in the document drawn up when he was hired, they had stated that what was done before being hired, he would not be held accountable. He also states that he never received a letter informing him of the termination of his employment contract within forty-eight (48) hours, and that he was not informed of the meeting mentioned by the applicant in which the issue of his dismissal was discussed. He concludes by stating that the High Court wronged him, as his dismissal was unlawful, and he should therefore be compensated as provided for by law.

Counsel Ruberwa Pierre also states that the High Court ignored various elements of evidence including the handover ceremony document prepared on 29/11/2016 following Niyonagize Augustave’s placement on a layoff of fifteen-day on 28/11/2016, and the letter of 08/12/2016 changing his duties from Secretary-Accountant to a field worker.

He also argues that the High Court ignored the fact that Niyonagize Augustave was dismissed on 24/01/2017 without first receiving a letter of explanation for the serious misconduct he was informed of when he was given a letter of unlawful dismissal as stated in paragraph 13 of

1 See for exemple the judgment n0 RS/INJUST/RC 00022/2018/SC between Busoro Gervais v. Busoro Mugunga Desire et Al.

## Page 6

the judgment sought for review on grounds of injustice. He explains that in that paragraph, the High Court held that Niyonagize Augustave should be dismissed because he had been repeatedly requested to provide explanations and had been disrespectful to the President and the Committee, but there was no evidence to substantiate these claims.

Niyonagize Augustave avers that he had no contact with the Committee because he did not receive a letter inviting him or which can be identified as evidence of Cooperative in the case, and that he does not understand how the Court found him guilty of contempt as a serious misconduct without any supporting evidence.

He further states that he disagrees with the respondent’s claim that he disrespected the management, because he was doing his job well, but that caused the misunderstanding with his manager, was that he mismanaged the Cooperative's funds, that this is why after he prepared a six- month report, he submitted it but the Manager of the Cooperative refused to receive it, consequently he submitted it to RCA (Rwanda Cooperative Agency), which caused them to plan firing him for alleged disobedience and other unreasonable things, which pushed him seeking justice to the Court. He also states that the document he submitted to the RCA was intended to highlight the source of the Cooperative's losses before they occurred as provided for in article 14 of the employment contract.

Counsel Ntihemuka Clement, representing the Cooperative, argues that Niyonagize Augustave's claim that the Court found him guilty of failing to prepare a report without any evidence from the Cooperative is unfounded, but rather he was the one who had to prove that all the reports he was supposed to prepare were correctly drafted and on time as stipulated in the employment contract and work instructions. He also states that up to now, the registers in which he was supposed to prepare some of these reports exist, and that they show that they were not prepared as instructed. Additionally, he asserts that although Niyonagize Augustave relies on a handover document, that document does not qualify as a report.

He further states that with regard to Niyonagize Augustave's claim that he was not given a letter of explanation within 48 hours, he finds that he deliberately ignores the fact that the article he relies on concerns the indefinite term employment contract. He explains that fixed-term employment contracts are governed by paragraph 2 of article 28 of Law n° 13/2009 of 27/05/2009 regulating labour in Rwanda, which provides that the decision to terminate the contract due to serious misconduct must be notified to the employee within 48 hours, and that this was respected, especially since Niyonagize Augustave, after having disobeyed the Committee and told it that he had nothing to respond, he was notified of the decision to terminate his contract within the time limit set by law.

Counsel Ntihemuka Clement adds that the matter of disobedience of the Committee occurred repeatedly: that firstly, Niyonagize Augustave's manager informed him in writing that he had to prepare a report filling out the registers, and recorded them in one register where he had found that there was excessive delay, Niyonagize Augustave instead of responding that he had heard the instructions reprimanded him, instead, he wrote reprimanding his manager, stating that he should have written to him somewhere other than in the register, as if he was the one who determined how the registers would be used. He says that secondly, the Committee summoned him to explain his behavior of disobeying his manager, to which he replied that he would first

## Page 7

prepare for it but did not say when he would be ready, and it was at that time he was temporarily suspended from work, which were followed by a change of responsibilities when he was assigned to the field work.

He further states that for the third time, Niyonagize Augustave was requested by the Committee to explain the reasons for being late for work and disrespecting his manager, and replied that he did not have time for this, and that these were added to many other times disrespecting his manager to the point that it was difficult to continue working with him. He also states that he finds that Niyonagize Augustave was dismissed for his mistakes of not fulfilling his duties properly, disrespecting working hours and disrespecting management, and therefore he does not deserve any damage.

Counsel Ntihemuka Clément was asked if there was any evidence to prove that Niyonagize did not prepare the reports he was supposed to prepare, and the time he would have supposed to prepare them, and if there was any evidence proving disobedience over the Committee and the time it happened, Counsel Ntihemuka Clément replied that the evidence was the minutes of the meeting. When asked if there was any other evidence proving that he was being asked for a report and disrespected the management, he replied that disobedience is legal fact not a legal act, so as they can find another evidence for it, but instead, the disrespected person was making a statement. As for the allegation that Niyonagize had altered the employment contract, Counsel Ntihemuka Clément stated that this was not being considered as a reason for terminating the contract because there was no evidence to support the claim, and he requests that those issues should not be considered in this instant case. DETERMINATION OF THE COURT

Paragraph 2 of article 28, of Law n° 13/2009 of 27/05/2009 regulating labour in Rwanda, which was also into force at that time of the alleged contract, states that: However, the contract of employment for a determined period or for a well defined work can be terminated before the fixed term in case of gross negligence or agreement between the parties. Where the contract for a determined period is terminated due to gross negligence, the party causing the contract to be terminated shall notify the same to the other party within fourty eight (48) hours.

Article 3 of Law n°15/2004 of 12/06/2004 relating to evidence and its production states that each party has the burden of proving the facts he/she alleges.

The case file contains an employment contract signed on 31/3/2016 between Niyonagize Augustave and the Cooperative, where he was hired to work as the Cooperative's Secretary- Accountant.

Article 9 of the indicatd agreement provides for a period of two (2) years, renewable from the date of its signature ; such agreement also provides for its termination, stating that if the Employer wishes to dismiss the Employee, he must provide written notice one month in advance and shall pay him/her for that month. Both parties also agreed that the same agreement is based on the provisions of the Rwandan labour law.

## Page 8

Law n° 13/2009 of 27/05/2009 mentioned above does not provide a definition of serious misconduct that would lead to the dismissal of an employee as it is the case in the current Law n° 66/2018 of 30/08/2018 regulating labour in Rwanda. The new law defines serious misconduct as a misconduct by an employee based on the severity of the action, omission, conduct, its circumstances or consequences such as the employer can no longer continue to employ him/her.2

The case file also includes the minutes of the meeting of 15/01/2017 between the Executive Committee and the Supervisory Committee of the Cooperative, where among the issues discussed at that meeting was the issue concerning the conduct of Niyonagize Augustave ; which confirmed that he should be dismissed because it is clear that he has disobedience and misbehaviour, and that he is not properly doing his job.

The case file also indicates that on 23/1/2017, the President of the Cooperative, named Kubitiro Kayonde Audace, wrote a letter terminating the employment contract of Niyonagize Augustave with the Cooperative. The letter states that the reasons for terminating the contract are that Niyonagize Augustave is incompetent to the job, does not perform as expected, and disrespects his Employer and all the Committees of the Cooperative. Another reason mentioned in the letter as a reason for terminating the contract is that the employee fraudulently altered the contract, to the extent that he refused to provide his original copy of employment contract to be compared with the provisions of the contracts of some other employees. However, this last point, the representative of Cooperative stated during the hearing that they no longer rely on it.

The case file even indicates that on 23/11/2016 and 17/01/2017, Niyonagize Augustave provided explanations in response to letters from the Cooperative management of 21/11/2016 and 12/01/2017 which requested explanations. However, the management did not express satisfaction with the explanations provided.

In the decision of the case seeking for review on grounds of injustice, in paragraph 13, the Court explained that the reason why Niyonagize Augustave should be dismissed was that he had been repeatedly requested by his manager to provide explanations regarding his performance, his disrespect toward the Committee, and his failure to complete the register for which he was responsible. Based on this fact, the Court ruled to overturn the damages awarded for unlawful dismissal, as well as the procedural fee and counsel's fee granted at the first instance.

In his defence, Niyonagize Augustave explains that from the time his duties were changed on 08/12/2016 until his dismissal, he never received a letter requesting him to provide explanations, nor invited by the Committee so as he refused to appear. Therefore, he argued that the High Court's ruling that his dismissal was in accordance with the law was unfair to him.

As mentioned above, the Law provides that in the event of termination of a contract due to gross misconduct, the party terminating the contract must notify the other party within forty-eight (48) hours. The fact that Niyonagize Augustave was notified of the termination of his employment contract in a letter dated 23/01/2017, seven days after the decision to dismiss him was taken at the meeting of 15/01/2017, but the Cooperative did not first notify him within the period provided for

2 See article 3,7º of that Law

## Page 9

by the Law, the gross misconduct he committed warrants his dismissal, shows that the management of the Cooperative did not comply with the provisions of the law.

Furthermore, the Court finds that the reasons stated by the Cooperative in its letter of 23/01/2017 as the reasons for terminating the employment contract with Niyonagize Augustave, as well as those stated by the Executive Committee and the Inspection Committee during the meeting of 15/01/2017 regarding his behavior, are unfounded. The Cooperative failed to provide any evidence of misconduct or failure to fulfill his duties, only relying on verbal statements.

The Court therefore finds that in the case under review on grounds of injustice, the High Court held that Niyonagize Augustave’s dismissal was lawful, regardless of whether the procedures required by law prior to terminating the contract were properly observed. ii. Determine whether any damages should be awarded in this case

Counsel Ruberwa Pierre, assisting Niyonagize Augustave, argues that the defendant must pay the following damages : - 2,500,000 Frw for unlawful dismissal ; - 1,000,000 Frw for compensation for pecuniary loss resulting from unpaid two months’ salaries ; - 2,000,000 Frw for procedural fees and counsel's fees.

Regarding other explanations of the damages requested by Niyonagize Augustave, Counsel Ruberwa Pierre states that those filed in the Intermediate Court of Nyarugenge will be considered, which consist of the following : - Damages for unfair dismissal : 97,223 Frw x14=1,361,262 Frw ; - Unpaid two months : 80,869x2=161,739Frw - Difference of unpaid 8 months :(80,869-70,000) x8=86, 952 Frw ; - Paid leaves of two years : 97,233 Frw x2=192,466 Frw ; - Vacation allowance :97, 233 Frw x 2=194, 466 Frw ; - 7 days worked on public holidays : 97,233 Frw x7/2=30,934 Frw ; - Notice period provided for in the contract : 97,233 Frw ; - Damages for not being provided with a properly issued work certificate : 97,233 Frw x 6=583, 398 Frw; - Moral damages : 2,000,000 Frw ; - Counsel’s fee : 500,000 Frw ; - Procedural fee : 500,000 Frw ; - Court fee : 50,000 Frw.

Counsel Ntihemuka Clément, representing Cooperative, argues that Niyonagize Augustave does not explain the damages and their basis, and therefore should not be awarded them because

## Page 10

he is the one who must explain his claim and presents its evidence. He argues that no procedural and counsel’s fees that Niyonagize Augustave should be awarded because he has not truth, that instead, based on article 111 of the Law relating to the civil, commercial, labor and administrative procedure, since Niyonagize Augustave initiated unnecessary lawsuits against Cooperative, he should be held liable for the following amounts: - 1,200,000 Frw for the procedural and counsel's fees at the first and second levels; - 1,300,000 Frw for the procedural and counsel's fees at this level, for a total of 2,500,000 Frw. DETERMINATION OF THE COURT

Paragraph 1 of article 28 of Law n° 13/2009 of 27/05/2009 regulating labour in Rwanda mentioned above, provides that any dismissal which is not done basing on the reasons provided for the law or resignation made before the expiry of a contract for a determined period compels the party that takes initiative of termination to pay an indemnity equivalent to the remuneration for the remaining contract period without prejudice to other compensation which may be paid.

Paragraph 1 of article 33 of the aforementioned Labour Law provides that any unlawful termination of contract may result in damages. Damages paid to the unlawfully dismissed worker cannot go below his/her three months’ salary but they cannot exeed the six (6) month salary.

The Court finds that, as mentioned above, Cooperative unlawfully terminated the employment contract with Niyonagize Augustave, and therefore, based on the aforementioned provision of the law, the damages claimed by Niyonagize Augustave are justified, and it must pay damages.

As explained above, Niyonagize Augustave's employment contract with the Cooperative was for a period of two (2) years from 31/03/2016, means that it should expire on 31/03/2018. The Cooperative terminated the contract on 23/01/2017, 14 months before its expiration.

The case file also indicates that Niyonagize Augustave's gross salary was 97,233 Frw, deducting taxes and other things, and was paid 80,869 Frw as upheld by the previous courts. However, as reiterated in this instant case, Niyonagize Augustave was only paid 70,000 Frw as evidenced by the receipt dated 03/08/2016 from which he received his salary for the month of 07/2016 which is included in the case file.

The Court finds that in awarding damages to Niyonagize Augustave, the Intermediate Court calculated it based on a gross salary of 97,233 Frw, but based on the position set by this instant Court in the case of Niwemugeni Jeannette v. KCB Bank Rwanda Ltd3 that an employee who is dismissed from work is entitled to a net salary rather than a gross salary, Niyonagize Augustave should be paid damages for the remaining 14 months of her employment contract, calculated on the basis of the net salary he was paid, and therefore he should be paid 80,869 Frw x 14 = 1,132,166 Frw.

3 See judgment n0 RS/INJUST/RSOC 00001/2019/SC decided by the Supreme Court on 31/01/2019 paragraph 36.

## Page 11

Regarding the moral damages Niyonagize Augustave claims to have resulted from his dismissal from work amounting to 2,000,000 Frw, which he had requested in the Intermediate Court but was not awarded, the Court finds that they should not be considered in this case for judgment review on grounds of injustice because he did not appeal them to the High Court to have them denied, and now he claims that he was wronged. The same applies to 7,000,000 Frw for moral damages of being drugged into unnecessary lawsuits which he first requested in that Court, but had not been submitted to the previous Court.

The Court also finds that the economic damages of 1,000,000 Frw, which Niyonagize Augustave first requested in this instant Court, claiming that it results from unpaid two months’salaries and their interests, should not also be considered in this instant case in accordance with the position set by the Supreme Court in various cases, which states that a party who is allowed to review a case on grounds of injustice and being retried, cannot use this procedure to bring new claims that were not part of the initial case or issues that were not examined in the case under review, because he/she should have gone beyond the scope of that case.4

The Court finds that there was a notice period fee that Niyonagize Augustave had requested in the Intermediate Court of Nyarugenge, it found that he should be awarded 48,611 Frw, but such amount was not included in its decision, and therefore he should be awarded such amount.

Regarding the procedural fee and counsel’s fee that Niyonagize Augustave is claiming at this level, which amount to 2,000,000 Frw, the Court finds that he should be awarded some money because it was necessary to pursue the case, and to hire a lawyer for assisting him, and that he has won some in the case, but because the amount requested is excessive, the Court finds that it should award him, in its discretion, 300,000 Frw for procedural fee, and 500,000 Frw for counsel's fee, totaling 800,000 Frw.

The Court also finds that Niyonagize Augustave should be awarded procedural fee and counsel’s fee in the High Court because it was necessary to pursue the case and to hire a lawyer to assist him as a result of the Cooperative's appeal which was granted while it should not have been granted. However, the Court notes that he requested a total of 1,200,000 Frw without presenting evidence to justify the amount. Therefore, in its discretion, the Court awards him 500,000 Frw for counsel’s fees and 300,000 Frw for procedural fees, totaling 800,000 Frw.

The Court also finds that he should be awarded 200,000 Frw for procedural fee and 500,000 Frw for counsel's fee that was awarded in the Intermediate Court of Nyarugenge, and that he should also be refunded 50,000 Frw of court fee when he was logding the claim in that Court, as it had previously declared, because the case was dismissed without reason.

The Court finds that the damages requested by the Cooperrative should not be awarded as it lost this case. III. DECISION OF THE COURT

4 See judgment no RS/INJUST/RSOC 00001/2018/SC, decided on 25/09/2020 between Banque Populaire du Rwanda v. Ukwibishaka Alexis; and judgment no RS/INJUST/RC 00024/2018/SC, decided on 21/02/2020 between Ngizweninshuti Albert v. Muhima Giovani

## Page 12

Declares Niyonagize Augustave’s claim requesting for review on grounds of injustice of the case RSOCA 00003/2019/HC/KIG decided by the High Court on 27/02/2020 founded in parts.

Declares that Niyonagize Augustave was unlawfully dismissed from his job.

Orders that the Cooperative Duhuzumurimo wa Karoti, on behalf of its manager, to pay the following damages to Niyonagize Augustave: - Damages for unlawful termination of employment contract amounting to 1,132,166 Frw; - Unpaid salaries of 2 months: 161,739 Frw; - The difference of unpaid salaries for 8 months: 86,952 Frw; - Notice period equals to 15 days: 48,611 Frw; - 200,000 Frw for procedural fee and 500,000 Frw for counsel’s fee that was awarded in the Intermediate Court of Nyarugenge; - 50,000 Frw of court fee in the Intermediate Court of Nyarugenge - 300,000 Frw for procedural fee and 500,000 Frw for counsel’s fee in the High Court; - 300,000 Frw for procedural fee and 500,000 Frw for counsel’s fee at this instance; The total is 3,779,468 Frw.