NSENGIYUMVA v. KIBIRIRA CHILDREN CENTER

# NSENGIYUMVA v. KIBIRIRA CHILDREN CENTER

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2014-07-18 - Case/document no.: RSOCA 002613HC - Collection: High Court

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NSENGIYUMVA v. KIBIRIRA CHILDREN CENTER [Rwanda HIGH COURT – RSOCA 002613HC (Kayisire, P.J.,) July 18’ 2014] Laws regulating labour – Unfair dismissal – Its unfair dismissal for the employer to dismiss the employee without precisely notifying him/her of the dismissal and its ground. Labour procedure – Prescription of the labour claim – The prescription period ceases to be computed when the workers’ delegate and the Labour Inspector have requested for amicable settlement or when the claim has been referred to a court – Law n° 13/2009 of 27/05/2009 regulating labour in rwanda, article 142. Fact: Nsengiyumva concluded an employment contract of a fixed period of five years with Kibirira Children Center for working as a watchman, unfortunately he was dismissed before the lapse of that period, on the allegation that he stole windows of that center. After seeking redress from the Labour Inspector, Nsengiyumva sued Kibirira Chidren Center in the Intermediate Court claiming that he was unfairly dismissed. The Court found the case without merit. He appealed in the High Court claiming that the previous court held that he commited a gross fault of the theft of the windows, when he was never prosecuted for the theft charges or penalized for it and seeks various The case was heard in absentia of Kibirira Children Center. Held: 1. Its unfair dismissal for the employer to dismiss the employee without precisely notifying him/her of the dismissal and its ground2. The prescription period for the labour claims ceases to be computed when the workers’ delegate and the Labour Inspector have requested for amicable settlement or when the claim has been referred to a court a Appeal has merit in part; Nsengiyumva was unfairly dismissed; Kibirira Children Center has to pay to Nsengiyumva damages; The appealed judgment overturned; Court fees on the respondent. . Statutes and statutory instruments referred to: Law n° 13/2009 of 27/05/2009 regulating labour in Rwanda, article 142 No cases referred to Judgment BACKGROUND OF THE CASE [1] NSENGIYUMVA Emmanuel appealed against judgment R.Soc 0001/13/TGI/RBV rendered by the Intermediate Court of Rubavu on 20/06/2013, in which NSENGIYUMVA brought the case against Kibirira Children Center for unfairly dismissing him. The Court held that his claim has no merit, hence he appealed before this

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Court. The case was heard in the absentia of Kibirira Children Center since it was summoned, and did appear before the court. [2] The legal issue to be analyzed is whether the appeal of NSENGIYUMVA Emmanuel is founded. THE LEGAL ISSUE ♦ whether the appeal of NSENGIYUMVA Emmanuel has merit. [3] At the first instance, NSENGIYUMVA Emmanuel sued Kibirira Children Center for unfairly dismissing him. In the judgment R.Soc 0001/13/TGI/RBV, the Court held that his claim has no merit , he was not unfairly dismissed, the Court demonstrated that NSENGIYUMVA committed a gross misconduct of stealing the window of the Kibirira Children Center of which he was an employee. At the appellate, NDEREYIMANA Sylvestre the council for NSENGIYUMVA argued that the document of 25/02/2013 should be analyzed with much discretion, for the Court to rule that it has no value , because NSENGIYUMVA has never been prosecuted and be punished for the crime of theft, he also argues that on 07/05/2012, was the date on which he presented the assets he kept and for the document stating that he stole the windows was written on 25/02/2013, one year after his dismissal of which they based on to dismiss him, therefore, it is an evidence that was got after and has to be rendered null . NSENGIYUMVA argued that he was dismissed on 07/05/2012 and he was immediately taken to the police station, where he never confessed that he stole windows; he requests that the document of 25/02/2013 be invalidated , and the Court hold that he was unfairly dismissed. * determining whether NSENGIYUMVA Emmanuel was unfairly dismissed. [4] In the judgment appealed against, in its paragraph 8, the Court demonstrated that NSENGIYUMVA committed gross misconduct towards the institution he worked for and it was not necessary to notify him of his dismissal as he argues. The court also showed in that paragraph that Kibirira Children Center was not the one that dismissed him because after realising that he had stolen he opted for abandoning his employment. In the appeal the Court finds that there are contradictions in the ruling on the first instance that NSENGIYUMVA committed gross misconduct, on the other side that he was not dismissed Kibirira Children Center, and it is not clear how the gross misconduct should the based on in ruling that NSENGIYUMVA was fairly dismissed while the employer did not dismiss him as the Court demonstrated in paragraph 8 of the appealed appealed judgment [5] NSENGIYUMVA Emmanuel argues that he was unfairly dismissed on 07/05/2012. The statements of case, at the first instance, on 24/05/2013, at page 4, NSENGIYUMVA was asked how he was dismissed and stated that they accused him of theft upon their arrival at the police station, then released after realizing that he was not guilty, they forged that cause so that he could be dismissed. At page 2 of the hearing statement of this case, at the first instance KAMPAYANA Martin, who was representing Kibirira Children Center demonstrated that NSENGIYUMVA was not dismissed, after the released he was not willing to come back at the work place, but he was more concerned with seizing the labour inspection. Moreover, at the fourth page,

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KAMPAYANA Martin demonstrated that NSENGIYUMVA himself abandoned the work, he also stated it at the sixth page, where he argued that NSENGIYUMVA dismissed himself, he also argued this at the seventh page where he argued that it was not Kibirira Children Center that dismissed him, NSENGIYUMVA felt ashamed and did not come back at the work place because of the theft he committed. [6] The court finds that what KAMPAYANA Martin representing Kibirira Children Center submitted argued in the hearing of this case at the first instance show that Kibirira Children Center did not dismiss NSENGIYUMVA, but rather he himself who abandoned the employment, however, this should not be considered, because at the appellate level the Court rather finds that NSENGIYUMVA was unfairly dismissed, as he argues that he was dismissed on 07/05/2012, alleging that he has stolen, as he explained at the first instance. The dismissal of NSENGIYUMVA is underpinned by the argument of KAMPAYANA Martin, who was representing Kibirira Children Center, he argued in the hearing of this case at the first instance on 24/05/2013, at the fourth page, he argued that after NSENGIYUMVA confessed that he removed the window on the building due the ground of security, teachers decided that they cannot continue to have him as their guard, he went immediately to the labor inspector without notifying them. The Court finds that the fact that they said that they cannot continue to have NSENGIYUMVA as their watchman, yet his job was that of a watchman can be construed as he was dismissed without a just cause as he was not clearly notified that he is dismissed and he was not notified of the cause of his dismissal, especially he had an employment contract of fixed period of five years with Kibirira Children Center . [7] Again, regarding the unfair dismissal of NSENGIYUMVA, the Court finds that it is backed by the statement of 25/02/2013, where the leaders of Rusumo village which states that after NSENGIYUMVA took back three windows the administration of Kibirira Children Center decided to dismiss him and hired another watchman which took place on 07/05/2012. Pursuant to what was explained above, the Court finds that NSENGIYUMVA was dismissed, his dismissal was unfair, since he was not notified of the cause of his dismissal, he was dismissed on 07/05/2012 as he argues, it is also proven by the statement of leaders of Rusumo Village of 25/02/2013 stated above and it is proven by the inventory statement of the property that NSENGIYUMVA left when leaving the work on 07/05/2012, on that writing, it can be seen that it was sealed by the stamp of Kibirira Children Center, but as for the fact that he abandoned the employment as argued at the first instance by Counsel KAMPAYANA Martin representing Kibirira Children Center, this should not be considered as explained above as they never proved that they requested NSENGIYUMVA to come back on duty, in order to demostrate that he really abandoned the work , therefore the fact that NSENGIYUMVA realised that he was dismissed, led him to referring the matter to the labour inspector. * With regard to determining whether NSENGIYUMVA Emmanuel should be awarded the damages he claims due to unfair dismissal. [8] Counsel NDEREYIMANA Sylvestre the counsel for NSENGIYUMVA argued that at the first instance, NSENGIYUMVA claimed the social security contributions, the Court ruled that there has been prescription, and he does not find any basis for that and request that NSENGIYUMVA be awarded damages of 1.075.000 Rwf, because his monthly salary was 25.000 Rwf, since he was dismissed before the

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termination of his employment contract, 25.000 Rwf of notice compensation, 150.000 Rwf of proceedings’ expenses and 150.000 Rwf of the council’s honorary. [9] In the appealed judgment, on the sixth paragraph 9, the Court demonstrated that with regard to social security contribution NSENGIYUMVA should not claim that because they were there was prescription, the Court based on article 142 of the law n◦ 13/2009 of 27/05/2009 governing labour in Rwanda. At the appellate level the Court finds that, that article should not be interpreted as the first instance Court did because in its first paragraph it provides that prescription for all claims arising from disagreement on employment contract between two parties shall be of two (2) years as of the beginning of the disagreement. second paragraph states that the prescription period shall cease to be computed when the workers’ delegate and the Labour Inspector have requested for amicable settlement or when the claim has been referred to a court, therefore pursuant to the provisions of that article, the Court find that there is no prescription period on the action of NSENGIYUMVA, since he was dismissed on 07/05/2012 as explained above, and referred his complaint to the labour inspector of Ngororero district on 06/07/2012 as proven by the affidavit of 26/09/2012 of non- conciliation between NSENGIYUMVA and Kibirira Children Center, therefore NSENGIYUMVA had the right to claim the contributions his former employer (Kibirira Children Center), should have paid for him in Rwanda Social Security Board, and request that it be done in case they were not paid. [10] Counsel NDEREYIMANA Sylvestre, for NSENGIYUMVA request that he be awarded damages equal to 1.075.000 Rwf because his salary was 25.000 Rwf and he was dismissed before the termination of the contract. The Court finds that NSENGIYUMVA had with his employer Kibirira Children Center a contract of employment with a determined period, as it had to last five years, it was signed on 12/01/2011, NSENGIYUMVA was dismissed on 07/05/2012 as explained above. Moreover, the Court finds that NSENGIYUMVA had the salary of 25.000frw per month as proven by the salary certificate of 12/01/2011. Article 28 of the law n◦ 13/2009 of 27/05/2009 cited above provides that in case of dismissal not due to causes provided for by the law, before the termination of the contract with a determined period, the party that terminated the contract pays damages equal to the salary of the remaining period of the contract, therefore Kibirira Children Center has to pay NSENGIYUMVA damages because it terminated the employment contract not in accordance with the law, it has to pay him damages calculated as follow: 2.5000 Rwf (Monthly salary) x 44 (the remaining months the period of 5 years since he was dismissed after working 16 months) therefore he has to be awarded damages of 1.100.000 Rwf. [11] NDEREYIMANA Sylvestre the counsel for NSENGIYUMVA requested that Kibirira Children Center award NSENGIYUMVA the amount of 25.000 Rwf of the notice compensation, claims 150.000 Rwf due to the abuse of proceedings and 150.000 Rwf of the council’s honorary. With regard to the notice compensation, the Court finds that NSENGIYUMVA should not be awarded it because it was a contract with a determined period and as for the proceedings’ fees and the council’s fee, the Court finds that he should be awarded it all as requested since it is not excessive, therefore Kibirira Children Center must pay 300.000 Rwf in addition to 1.100.000 Rwf explained above which in total equals 1.400.000 Rwf.

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III. COURT DECISION [12] It rules that the appeal of NSENGIYUMVA Emmanuel, has merit in parts. [13] It rules that NSENGIYUMVA Emmanuel was unfairly dismissed. [14] 14. It orders Kibirira Children Center to pay NSENGIYUMVA Emmanuel damages in total equal to 1.400.000 Rwf. [15] It rules that the judgment R.Soc 0001/13/TGI/RBV rendered on 20/06/2013 by the Intermediate Court of Rubavu, is overturned. [16] It orders Kibirira Children Center to pay the court fees equal to 14.600 Rwf.