NSHIMIYIMANA et.al v. KOMISIYO Y’IGIHUGU YO KURWANYA SIDA (C.N.L.S)

# NSHIMIYIMANA et.al v. KOMISIYO Y’IGIHUGU YO KURWANYA SIDA (C.N.L.S)

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2014-05-09 - Case/document no.: RADA 0029/12/CS - Collection: Supreme Court

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NSHIMIYIMANA et.al v. KOMISIYO Y’IGIHUGU YO KURWANYA SIDA (C.N.L.S) [Rwanda SUPREME COURT– RADA 0029/12/CS (Mutashya, P.J., Rugabirwa, Gakwaya, J.) 9 May , 2014] Administrative law – Employment contract – Termination of the fixed term contract –The employment of fixed term contract is terminated upon the lapse of that period, but in any case that contract of employment terminate before the lapse of that period due to the faults of the employer (unfair dismissal) the employee is entitled to his entire salary of the remaining contract period, except in case there has been force majeure, gross misconduct or the agreement between both parties – law n° 51/2001 of 30/12/2001 governing labor in Rwanda, article 19, 20, 26. Contract law – Contract – Its effects for the performers – The contracts concluded in accordance with laws becomes a law between the parties and it has to be performed in good faith – Law n° 45/2011 of 25/11/2011 governing contracts, article 64. Civil procedure – Damages – Dragged into lawsuits – Any person who has been a litigant at the first instance may appeal aginst it when they are interested, unless the law provides otherwise – Law n° 21/2012 of 14/6/2012 relating to civil, commercial and administrative procedure,article 162(1). fact : Nshimiyimana et. Al concluded an employment contract to drive with CNLS of three years and agreed that in case the contract would be terminated the employee will continue to have rights of his salary until the lapse of the period in the contract. After five months, on 1/12/2005 CNLS gave them a notice that they contract will be terminated by December because cars of the State were about to be stopped, in addition to requesting the amount that was given for each employee as a motivation Nshimiyimana et.al were not satisfied with that decision of CNLS and referred to the labour inspector, who failed to conciliate them which led them to file case before the High Court and then it held that it has no merit. Nshimiyimana et. Al appealed before the Supreme Court arguing that the High Court did not comply with the clauses of the employment contract and did not ruling on some points including unfair dismissal, accompanying allowance, work certificate, the leave compensation, proceedings‘ expenses and the council’s honorary. They also argue that the High Court ruled that they must not award the damages and also that they claimed the payment of motivation yet this claim was filed by the CNLS. CNLS filed cross appeal praying to the Court to order the appellants to pay the motivation fees they owe to it and each one pay to it the damages for being dragged into unnecessary lawsuit . Held : 1. The employment of fixed term contract is terminated upon the lapse of that period, but in any case that contract of employment terminate before the lapse of that period due to the faults of the employer (unfair dismissal) the employee is entitled to his entire salary of the remaining contract period, except in case there has been force majeure, gross misconduct or

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the agreement between both parties; the termination of the contract of the appellant is based on force majeure. 2. In case the employee fails to produce the evidence which prove that he did not get leave therefore he could not be awarded the compensation leave. 3. The contracts concluded in accordance with laws becomes a law between the parties. It can be resolved upon their mutual agreement or due to any legal grounds. It has to be performed in good faith therefore the employee were given that amount in accordance with the law because employer as did that in compliance of the stipulations of the employment contract, therefore, the argument of employer that they have to restitute that amount as they are no longer its employees is not founded. 4. Any person who has been a litigant at the first instance may appeal aginst it when they are interested, unless the law provides otherwise. Appeal has merit in part. Cross appeal has no merit. With the court fees to all parties. Statutes and statutory instruments referred to:

Law n° 51/2001 of 30/12/2001 governing labor in Rwanda, article 19, 20, 26(1) and182(2). Law n° 45/2011 of 25/11/2011 governing contracts, article 64. Law n° 21/2012 of 14/6/2012 relating to civil, commercial and administrative procedure, article 9(1) and162(1). No case referred to. Doctrines: Francis LEFEBVRE, Social, droit du travail et sécurité sociale, éditions Francis LEFEBVRE, Paris, 1999, P. 285. Jean PELISSIER, Alain SUPIOT et Antoine JEAMMAUD, droit du travail, 22e édition, Dalloz, Paris, 2004, P. 516. Judgment BACKGROUND OF THE CASE [1] Nshimiyimana Sammy, Ndayamabaje Emmanuel and Rwikangura Vincent concluded an employment contract to drive with CNLS of three years that was due to start on 1/7/2005 and end ends on 1/7/2008, and agreed that in case the contract would be terminated the employee will continue to have rights of his salary until the lapse of the period in the contract. After five months, on 1/12/2005 CNLS gave them a notice that they contract will be

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terminated by December because cars of the State were about to be stopped, in addition to requesting 1.500.000 Rwf that was given to them as a motivation. [2] Nshimiyimana Sammy, Ndayambaje Emmanuel and Rwikangura Vincent were not contended with that decision of CNLS and reffered to the labaor insepctor, who failed to concisaliate them and they filed their cases before the High Court. [3] The High Court ruled rendered the judgment RAD 0002-0003-0004/10/HC/Kig on 18/5/2012, and ruled that their claims are no founded. [4] Nshimiyimana Sammy, Ndayambaje Emmanuel and Rwikangura Vincent were not satisfied with the decision, and before the Supreme Court arguing that the High Court did not comply with the clauses of the employment contract and made a wrong interpretation of that contract, without ruling on some points including unfair dismissal, accompanying allowance, work certificate, the leave compensation, proceedings‘expenses and the council’s honorary. They also argue that the High Court ruled that they must get damages and that they claimed the payment of 1.500.000 Rwf yet this claim was filed by the CNLS. On the other side, CNLS filed cross appeal requesting the court to order the appellants to pay it 1500.000 they owe to it and 1.000.000 Rwf for each because of abuse of procedure. [5] The public hearing was conducted on 1/4/2014, Nshimiyimana Sammy, Ndayambaje Emmanuel and Rwikangura Vincent, represented y Counsel Semuhunga Silas, and CNLS represented by Counsel Ntaganda Felix, State Attorney. II. Analysis of Legal Issues To know whether the High Court erroneously interpreted article VI of employment contract concluded between litigants [6] Counsel Semuhunga Silas who represented the appellants, argues that the High Court ignored articles 7, 19, 20, 26 and 182 of the law n° 51/2001 of 30/12/2001 governing labour in Rwanda and article 7 and 8 of the law relating to civil, commercial and administrative procedure since CNLS and the appellants and which led the court to ruling against them as it did not rule on all claims including unfair dismissal, accompanying allowance, work certificate, the leave compensation, proceedings‘ expenses and the council’s honorary. He elucidates that under paragraph 4 of the judgment appealed against, the High Court, basing on article VI of that contract, held that salaries of the remaining period of 31 months should not be paid because the CNLS had agreed that when the contract is terminated, the employee will withhold his rights on his salary until the lapse of the period in the contract, however, that article further stipulates that two causes that may lead to the early termination of the contract include the force majeure and in case one of the parties failed to respect on the articles of the contract. [7] Counsel Semuhunga Silas argues that the cause that led the CNLS to terminate the contract, was that the State took the decision up charroi up to charroi zéro, however it never used cars of teh State and continued to use those cars of the project with other drivers after the termination of the contract , he therefore finds that the fact that the termination of the contract was not due to one the causes stipulated in the contract and the fact that there has been no charroi zéro , as those cars remained in CNLS, one was sold in 2010, the fact that the

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contract was not terminated on reasonable grounds (Unjustified motives), this must lead to the payment of 31 months that were remaining for their contract to come to an end. [8] Counsel Semuhunga Silas concludes arguing that except those, during the dismissal of the appellants, CNLS did not notify them that it has terminated the contract, but rather sent them a letter signed per proxy by an anonymous person and his position, there has been the notification of the notice period, therefore, basing on the explanations under article of the law ° 13/2009 of 27/5/2009 governing labour in Rwanda, he finds that the fact that the appellants were unfairly dismissed, the appellants have to be paid the amount equal to the remainder of the contract. [9] Counsel Ntaganda Félix, who represents CNLS argues that article VI, paragraph 3 of the employment contract, on which the appellants base claiming salaries of 31 months that were remaining before the termination of their contract, does not mean what they argue. He further argues that that article stipulates that each party is allowed to terminate the contract and in case of termination, the employee is entitled to his salary until the termination of the contract, therefore as indicated by letters addressed to them on 1/12/2005, the contract was terminated on 31/12/2005 and they were paid up to that date and they can be paid the salaries up to the time that the contract was supposed to last., should it have been terminated. [10] With regard to unfair dismissal, Counsel Ntaganda Félix argues that except that in different summons sent to CNLS, there is nowhere mentioned unfair dismissasl and it did not occur as the appellants were dismissed due the poloicy of charroi zéro that concerned all public institutions. He further argues that even before the inspector of labor the appellants did not put forward issues relating to the unjustified termination of the employment contract, this therefore shows that they know that it did not occur. COURT FINDINGS [11] Article VI, paragraph 3 of the employment contract between litigants on 2/1/2005 stipulates that, to quote in the event of termination of this contract, the employee will be entitled to payment of his salary until the date of termination of the contract ‘‘en cas de résiliation du présent contrat, l’employé aura droit au paiement de sa rémunération jusqu’à la date de la résiliation du contrat‘‘. Its paragraph 4 stipulates that, to quote again the termination is justified particularly in the following cases: 1. the period of inability to perform the contractual duties due to a force majeure more than 30 days after notification, 2. one or the other party n 'one or not honor the terms of this contract ‘‘ la résiliation est justifiée notamment dans les cas ci-après: 1. la période d’empêchement d’exercer les fonctions contractuelles due à un cas de force majeure excèdant 30 jours après sa notification, 2. l’une ou l’autre partie n’honore pas une ou les clauses du présent contrat‘‘ [12] Article VII, paragraph 2 of the employment contract stipulates that, to quote in case of force majeure, preventing either party to fulfill its contractual obligations, it was agreed that they be suspended during the period of incapacity due to this situation, as long as the force majeure has was reported to the other party within fifteen days of the event by registered letter with acknowledgment of receipt ‘‘ en cas de force majeure, empêchant l’une ou l’autre partie de remplir ses obligations contractuelles, il est convenu que celles-ci soient suspendues pendant la période d’incapacité due à telle situation, à condition que le cas de force majeure ait été signalé à l’autre partie dans les quinze jours suivant l’événement par

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lettre recommandée avec accusé de réception‘‘. The paragraph 3 of that article stipulates that orce majeure means an event whose nature is unpredictable and unavoidable, the consequences of totally prevent the execution of the employee's obligations such as prolonged strikes, war and acts of war, earthquakes, accidents, civil unrest, etc ... .. ‘‘force majeure signifie tout événement dont la nature est imprévisible et inéluctable, dont les conséquences empêchent totalement l’exécution des obligations de l’employé tels que les grèves prolongées, la guerre et les faits de guerre, les tremblements de terre, les accidents, les troubles civiles, etc…..‘‘. [13] Article 19 of the law n° 51/2001 of 30/12/2001 governing labor in Rwanda provides that when the employment contract that meets the provisions of article 7 of this law is terminated before the time it was due to end, the employer must notify the labor inspector of that district within 15 days. [14] Article 26, paragraph 1 of the law n° 51/2001 of 30/12/2001 governing labor in Rwanda provides that any termination of the employment without a just cause may led to the award of damages. Damages awarded to an unfairly dismissed employee shall not exceed their salary of six months, in addition to indemnities and other benefits the employee was entitled to every month. [15] Article 182, paragraph 2 of the law n° 51/2001 of 30/12/2001 cited above provides that when the employees’ representatives failed to settle individual lanbor disputes, any interested part refers the matter to the inspector of labor requesting to settle it amicably. [16] With regard to the interpretation of article VI of the employment contract, the Supreme Court finds that that article means that in case the contract is terminated due to force majeure or due gross misconduct (non-performance of the contract), or due to the agreement of both parties, the employee is entitled to his salary up to the date of its termination, to mean up to the day one of these causes occurs, therefore if the principle is that the employment of fixed term contract is terminated upon the lapse of that period, but in any case the contract of employment with determined is terminated before the lapse of that period due to the faults of the employer (unfair dismissal) the employee is entitled to his entire salary of the remaining contract period, except in case there has been force majeure, gross misconduct or the agreement between the parties. [17] Due to all those grounds, as for the arguments of the appellants that basing on 19 and 20 of the law n° 51/2001 of 30/12/2001 cited above, the legislator meant that the contract with a determined period cannot be terminated, but if it occurred, all salaries have to be paid along with damages provided under article 26 of that law, the Supreme Court finds that these are not founded because is was realized that in case the termination of that contract was due to force majeure, or due to gross misconduct or due to the agreement between the parties, the employee is not entitled to his entire salary of the remaining period of the contract. [18] With regard to the cause that led CNLS to terminate the employment contract concluded between it and the appellants, the Supreme Court finds that the decision of the State to reduce its cars (politique de charroi zéro) aiming at reducing unnecessary budgetary expenses and efficient use of its resources, was known by all (notoriété de la décision) and it was implemented in all public institutions and in affiliated projects. It also finds that in the notification of the notice period and termination of the contract on 1/12/2005, CNLS explains

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to the litigants that due to the State policy of ‘‘Charroi zéro‘‘, cars used in their employment, the project Unité de Gestion des Projets Global Fund‘‘ cannot remain with them from 31/12/2005 and that their contract will be terminated on that date and that their notice period shall start on 1/12/2005. [19] In accordance all those stated above, the Supreme Court of the view except the mere argument that those cars were not sold, the policy of ‘‘charroi zéro‘‘ does not mean that in any case cars of the State and other affiliated projects had to be sold because there are some services of the State and some affiliated projects that needed necessary cars to help them in discharge their duties successfully. It also finds that arguing that cars they used were not sold and therefore the appellants had to continue their employment, it is not founded because in that case laws relating to experience and employees evaluation that had to be based on, therefore the arguments of appellants that there has been an unfair dismissal are not founded because the policy of ‘‘charroi zéro‘‘ was a force majeure as the administrative decision was unexpected and had to be complied with, even the project ‘‘Unité de Gestion des Projets Global Fund‘‘ affiliated with CNLS had no other alternative1. [20] With regard to the argument of the appellants that there was an unfair dismissal because the signatory of the letter of 1/12/2005 that gave them the notice period and notified them the termination of employment contract was anonymous and that his quality was not mentioned , the Supreme Court finds that it is obvious beyond any doubt that the appellants knew that the decision to terminate the employment contract due to force majeure was taken by the the Senior Management of CNLS, because on 27/5/2008, they wrote a letter adressed to the Executive Secretary Dr Agnès BINAGWAHO requesting her to annul that decision and allow them to come back on their employment, and as it can be seen from the employment contract they have signed on 11/8/2005 that it is her whom represents the administration of projects financed by Global Fund therefore appelalnts allegations are not founded. [21] With respect to the prayers of appellants, except the fact that they had the right to request the High Court to order CNLS to give them teh accompanying allowances and damages even in case they did not put forward that before the labor inspector as the law does not prohibit that, the Supreme Court is of the view that the should not be awarded them even damages equal to the salary of 31 months of the remaining contract period because pursuant the motivation stated above the termination of their employment contract was not in violation of the law2. 1 Selon la jurisprudence, constitue notamment un cas de force majeure entraînant la rupture du contrat de travail, le fait du prince, acte de la puissance publique rendant impossible l’exécution du contrat de travail, in Mémento pratique Francis LEFEBVRE, Social, droit du travail et sécurité sociale, éditions Francis LEFEBVRE, Paris, 1999, P. 285. 2 ‘’Lorsque la force majeure rompt le contrat de travail, l’employeur n’a pas à respecter la procédure de licenciement et ne peut être condamné au paiement de dommages et intérêts pour rupture abusive. Par ailleurs, il est libéré de l’obligation de respecter le délai-congé, donc de verser l’indemnité compensatrice de préavis, et ne doit pas l’indemnité de licenciement’’, in Mémento pratique Francis LEFEBVRE, Social, droit du travail et sécurité sociale, éditions Francis LEFEBVRE, Paris, 1999, P. 285. Dans le même sens, Jean PELISSIER, Alain SUPIOT et Antoine JEAMMAUD, droit du travail, 22e édition, Dalloz, Paris, 2004, P. 516.

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[22] With regard to the leave compensation claimed by NDAYAMBAJE Emmanuel equal to 114.297 Rw, the Supreme Court finds that this amount was requested before the High Court but it held that it cannot admit this claim because it was not among what the plaintiffs referred to the labor inspector. It also finds that except that only NDAYAMBAJE claim that amount, the High Court should have not dismissed that claims because it was among claims assessed by the labor inspector because the law does not prohibit that. However, in the case file, there is no single evidence that proves that NDAYAMBAJE Emmanuel did not got his annual leave of 2005, therefore pursuant to article 9, paragraph 1 of the law n° 21/2012 of 14/6/2012 relating to civil, commercial and administrative procedure which provides that the plaintiff has to produce the evidence of his allegations, they failure to do so, the defendant wins the case. The Supreme Court finds that NDAYAMABAJE Emmanuel should not be awarded this amount. [23] Due to all those grounds, the Supreme Court finds that point of appeal raised by NSHIMIYIMANA Sammy and NDAYAMBAJE Emmanuel and RWIKANGURA Vincent is not founded. To know whether 1.500.000 Rwf that CNLS requests its restitution, should be awarded it. [24] Counsel Semuhunga Silas argues that 1.500.000 Rwf that CNLS requests, was a motivation stipulated under article 5.3 of its contract with the appellants, that it was given without anybody requested it, and it is acquired as a donation to be used by the appellants. He further argues that that motivation can be considered as a gratification paid as a lump sum in order to execute the stipulations of article 5.3 of employment contract, therefore he finds that the restitution of that donations is in contravention of the provisions of articles 25,26,28,29,33 and 37 of the civil code book III. [25] Counsel Ntaganda Felix argues that CNLS gave NSHIMIYIMANA Sammy, NDAYAMBAJE Emmanuel and RWIKANGURA Vincent 15.00.000 Rwf each as it gave it to other employees in order to help them for their transport, but it request it because they are no longer its employees. COURT FINDINGS [26] Article 5.3 of the employment contract stipulates that gross motivation is granted to the employee under the terms defined by CCM at its meeting of December 14, 2004 ‘‘une motivation brute est accordée à l’employé selon les modalités définies par CCM lors de sa réunion du 14 décembre 2004‘‘. [27] Article 64 of the law n° 45/2011 of 25/11/2011 governing contracts provides that the contracts concluded in accordance with laws becomes a law between the parties. It can be resolved upon their mutual agreement or due to any legal grounds. It has to be performed in good faith. [28] Pursuant to article 5.3 of the employment contract and article 64 of the law n° 45/2011 of 25/11/2011 stated above, the Supreme Court finds that the plaintiffs were given that amount in accordance with the law because CNLS as did that in compliance of the

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stipulations of the employment contract, therefore, the argument of CNLS that they have to restitute that amount as they are no longer its employees is not founded. [29] Due to all those grounds, finds that that point of appeal of NSHIMIYIMANA Sammy, NDAYAMBAJE Emmanuel and RWIKANGURA Vincent is founded and therefore the appellants do not have to restitute CNLS that amount. C. To know whether CNLS should be awarded damages equal to 3.000.000 Rwf of abuse of procedure [30] Counsel Ntaganda Félix argues that CNLS request the court to order the applicants to give it 1.000.000 Rwf due to the abuse of procedure. [31] Counsel Semuhunga Silas argues that the requests of CNLS are no founded as they are not based on the law and it does not prove the loss it incurred. COURT FINDINGS [32] Article 162, paragraph 1 of the law n° 21/2012 of 14/6/2012 relating to civil, commercial and administrative procedure provides that any person who has been a litigant at the first instance may appeal aginst it when they are interested, unless the law provides otherwise. [33] Pursuant to article 162, paragraph 1, of the law n° 21/2012 of 14/6/2012, cited above, the Supreme Court finds that NSHIMIYIMANA Sammy, NDAYAMBAJE Emmanuel and RWIKANGURA Vincent had the right to appeal against the judgment rendered at the first instance by the high court, although the appeal is founded on some points as they were interested, therefore the requests of CNLS are not founded. III. COURT DECISION [34] It rules that the appeal of NSHIMIYIMANA Sammy, NDAYAMBAJE Emmanuel and RWIKANGURA Vincent is founded on some points [35] It rules that the appeal of (C.N.L.S.) is founded on some points [36] It rules that the cross appeal of CNLS is not founded. [37] It rules that court decision in the judgment RAD 0002-0003-0004/10/HC/KIG rendered by the High Court on 18/5/2012 is modified as to the restitution of 15.00.000 Rwf to CNLS by the appellants only. [38] It ordered NSHIMIYIMANA Sammy, NDAYAMBAJE Emmanuel, RWIKANGURA Vincent and CNLS to pay the court fees equal to 45.050 Rwf.