NYIRABWIZA v UNGUKA BANK Plc

# NYIRABWIZA v UNGUKA BANK Plc

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2023-04-20 - Case/document no.: RS/INJUST/RSOC 00011/2022/CA - Collection: Court of Appeal

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NYIRABWIZA v UNGUKA BANK Plc [Rwanda COURT OF APPEAL – RS/INJUST/RSOC 00011/2022/CA – (Nyirandabaruta, P.J., Ngagi and Kamere, J.) 20 April 2023] Labor procedure – Employment contract – Dismissal for economic reasons – Notifying the labour inspector –Timing of notification to the labour inspector – The labour inspector must be notified of the list of employees to be dismissed for economic reasons prior to the dismissal of employees. The inspector must be given the opportunity to verify that the individuals on the list are indeed those to be dismissed and that the dismissal is being carried out in accordance with the law. Law regulating labour – Employment contract – Termination of indefinite term employment contract – The notice – If the employer opts to convert the notice period into a monetary payment, it is considered that the notice has been given, and therefore no additional compensation is required. Facts: This case began before the Intermediate Court of Nyarugenge, Nyirabwiza states that she had an indefinite employment contract with UNGUKA BANK Plc, where she had worked for over ten (10) years. On 30/07/2018, she was surprised to receive a letter terminating her employment contract due to economic reasons. She asserts that her dismissal was in violation of Article 34 of Law No 13/2009 of 27/05/2009 regulating labour into force at that time. Nyirabwiza further avers that she was not given notice and she is seeking damages for unlawful dismissal, compensation for lack of notice, terminal benefits, and reimbursement of counsel and procedural fees. The Intermediate Court of Nyarugenge found that Nyirabwiza was unlawfully dismissed and awarded her various damages. At the appeal instance, however, the High Court ruled that UNGUKA BANK Plc had complied with the law, confirming that the notice had been issued. Nyirabwiza applied for the case to be reviewed on the grounds of injustice, her request was granted. She argued that the injustice arose from the fact that the High Court confirmed compliance with the provisions of Article 34 of Law No 13/2009 of 27/05/2009 regulating labour in Rwanda, while it was untrue. She added that the provisions regarding notice and other matters related to unlawful dismissal had not been observed. Nyirabwiza further stated that the Court erroneously ruled that notifying the Labour Inspector of the list of dismissed employees from UNGUKA BANK Plc was sufficient, regardless of the timing of the notifications to both the Labour Inspector and the employees, such stance contradicted the precedents set by the Court in similar cases. Additionally, she claimed that the Court failed to recognize her right to be notified of the list before it was submitted to the Labour Inspector, which was not done. The defendant argues that the key issue to be analysed in this case is whether the conditions for notifying the Labour Inspector were met, as this was the focus of the High Court's decision. It further contends that no laws were violated because the legislator did not set a specific time limit for notifying the Labour Inspector. Therefore, by notifying the Labour Inspector at the same time as the plaintiff, no law was breached. Additionally, the plaintiff was not dismissed on the day the Labour Inspector was notified of the dismissal for economic reasons, but rather on the day the one- month notice period was given, during which she remained legally employed by the defendant. As

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such, the issue of advance notice of the list of dismissed workers is not relevant to the issues that need to be considered in this case. Held: 1. The labour inspector must be notified of the list of employees to be dismissed for economic reasons prior to the dismissal of employees. The inspector must be given the opportunity to verify that the individuals on the list are indeed those to be dismissed and that the dismissal is being carried out in accordance with the law. Therefore, the fact that Unguka Bank Plc notified the Labor Inspectorate of the list of employees to be dismissed for economic reasons on the same day that Nyirabwiza Justine was dismissed suggests that Unguka Bank Plc treated the notification as a mere formality, which is contrary to the provisions of the law. 2. If the employer opts to convert the notice period into a monetary payment, it is considered that the notice has been given, and therefore no additional compensation is required. Therefore, since Unguka Bank Plc did not provide the notice period but instead compensated Nyirabwiza Justine with an amount equivalent to the salary and other benefits she would have received during the notice period, and she does not deny that she received them, Unguka Bank Plc has complied with the provisions of the law. Application for the review of the judgment on grounds of being vitiated by injustice has merit in part. Court fees are borne by the defendant. Statutes and statutory instruments referred to: Law No 66/2018 of 30/08/2018 regulating labour in Rwanda, article 29; Law Nº30/2018 of 02/06/2018 determining the jurisdiction of courts, article 55; Law Nº22/2018 of 29/04/2018 relating to the civil, commercial, labour and administrative procedure, article 111; Law Nº 45/2011 of 25/11/2011 governing contracts, articles 64 and 70; Law N° 13/2009 of 27/05/2009 regulating labour in Rwanda, articles 21, 27, 29, 30, 32, 33 and 34. Cases referred to: Niwemugeni Jeannette v. KCB Bank Rwanda Plc, RS/INJUST/RSOC 00001/2019/SC rendered by the Supreme Court on 31/01/2020; Ngizweninshuti v. Muhima, RS/INJUST/RC 00024/2018/CS rendered by the Supreme Court on 21/02/2020; Rugenera Marc v. Soras Assurances Générales Ltd (SORAS AG), RSOCAA 0003/15/CS rendered by the Supreme Court on 05/05/2016; Ntukamazina Jean Baptiste v. Prime Insurance Ltd (PRIME), RSOCAA 0001&0002/16/CS rendered by the Supreme Court on 14/10/2016; Musoni wa Rwihimba Désiré v. Bank of Kigali Ltd, RSOCAA 0014/12/CS rendered by the Supreme Court on 18/01/2013; Coopérative de Développement des Anciens Chauffeurs de l’Etat (CODACE) v. Ntaganda, RS/INJUST/RCOM 00006/2021/CA rendered by the Supreme Court on 17/06/2022; Urwego Opportunity Bank Ltd v. Niyonsaba Clémentine, RSOCA 00206/2018/HC/KIG rendered by the High Court on 24/05/2019;

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Uwimana Marie Paul et al. v. Urwego Opportunity Bank Ltd, RSOCA 00224/2018/HC/KIG rendered by the High Court on 24/05/2019; Banque Populaire du Rwanda Ltd v. Sekamana Naason et al. RSOCA 00017/2018/HC/KIG rendered by the High Court on 30/11/2018. Authors quoted: François Gaudu et Raymonde Vatinet, Droit du travail, 5e édition, Dalloz, 2013, p. 213-214. Gilles Auzero et Emmanuel Dockes; Droit du travail, 30e édition, Dalloz, 2016, p. 610, 619. Judgment I. BACKGROUND OF THE CASE

This case began before the Intermediate Court of Nyarugenge, Nyirabwiza Justine stated that she had an indefinite employment contract with UNGUKA BANK Plc, where she had worked for over ten (10) years. She submitted that on 30/07/2018, she was unexpectedly presented with a letter terminating her contract due to alleged economic reasons. Nyirabwiza argued that her dismissal violated Article 34 of Law No 13/2009 of 27/05/2009 regulating labour at the time and that she had not been given notice prior to her dismissal. Consequently, she sought damages for unlawful dismissal, compensation in lieu of notice, as well as procedural and counsel fees.

UNGUKA BANK Plc submitted that Nyirabwiza Justine was employed by the Bank from 31/01/2008 to 30/07/2018. The Bank stated that her employment contract was terminated on 30/07/2018 due to economic reasons, asserting that the dismissal was carried out in full compliance with the law. It further claimed that Nyirabwiza was provided with compensation in lieu of notice and, therefore, should not be awarded the damages she is requesting.

In the judgment RSOC 00012/2019/TGI/NYGE rendered by the Intermediate Court of Nyarugenge on 28/02/2020, the Court ruled that Nyirabwiza Justine's claim was partially valid, and that she had been unlawfully dismissed from her job. The Court ordered to UNGUKA BANK Plc to pay her 4,556,052 Frw as damages for the illegal dismissal, 500,000 Frw for counsel fees, and to refund her the 20,000 Frw court fee she had deposited.

UNGUKA BANK Plc was not satisfied with the judgment and appealed to the High Court, arguing that the Intermediate Court of Nyarugenge had ruled that the employment contract was unlawfully terminated, but did not consider the reasons for the termination. Additionally, the Bank argued that the damages had been calculated based on the employee's gross salary instead of her net salary.

On 17/11/2020, the High Court delivered the judgment RSOCA 00079/2020/HC/KIG, ruling that the appeal of UNGUKA BANK Plc was justified, while Nyirabwiza Justine's appeal lacked merit, and thus the judgment under appeal was reversed. The Court held that the amount of 4,556,052 Frw as damages for unlawful dismissal, as well as the court fees that UNGUKA BANK Plc had been ordered to pay to Nyirabwiza Justine, should not be awarded to her. Instead, Nyirabwiza Justine was ordered to pay to UNGUKA BANK Plc 500,000 Frw for counsel fees,

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100,000 Frw as procedural fees, and to refund the amount of 40,000 Frw that the Bank had deposited as court fees.

Nyirabwiza Justine appealed to the President of the Court of Appeal, requesting that the judgment RSOCA 00079/2020/HC/KIG should be reviewed on the grounds of injustice. After considering her request, the President of the Court of Appeal wrote to the President of the Supreme Court, requesting confirmation that the judgment should be reviewed on the grounds of injustice. By the decision 207/CJ/2022, the President of the Supreme Court decided that the judgment should be reviewed on the grounds of injustice and transferred it to the Court of Appeal to be reheard, and the case was registered under the number RS/INJUST/RSOC 00011/2022/CA.

The case was heard in public on 11/04/2023, Nyirabwiza Justine was represented by Counsel Munyandatwa Nkuba Milton and Counsel Ntaganda Rwamulima Anicet, while UNGUKA BANK Plc was represented by Counsel Nkeza Sempundu Clément.

Nyirabwiza Justine's legal counsel argued that the injustice their client suffered stems from the High Court's ruling, which confirmed that the provisions of Article 34 of Law No 13/2009 of 27/05/2009 regulating labour in Rwanda were respected, they aver that such is untrue. They also argued that the notice requirements were not respected, and raised other issues related to the consequences of illegal dismissal. UNGUKA BANK Plc's legal counsel submitted that the key issue in this case is whether the conditions for notifying the Labour Inspector were respected, as this was the focus of the High Court's consideration. I. ANALYSIS OF LEGAL ISSUES OF THE CASE

The debate in this case is based on the following issues, which must be analysed: - Whether Nyirabwiza Justine was unlawfully dismissed from her employment and the consequences thereof; - Whether Nyirabwiza Justine was given proper notice when UNGUKA BANK Plc terminated her employment contract; - Whether Nyirabwiza Justine should be reimbursed the money ordered by the Court to be paid to UNGUKA BANK Plc; - Whether the procedural fees, counsel fees, court fees, and damages for being dragged into unnecessary lawsuits are justified.  Whether Nyirabwiza Justine was unlawfully dismissed from her employment and the consequences thereof

The legal counsel of Nyirabwiza Justine contend that the High Court, in the judgment RSOCA 00109/2020/HC/KIG, under review on grounds of injustice, stated that UNGUKA BANK Plc notified the Labour Inspector of the list of dismissed workers on 30/07/2018 because the law so provides. They argue that the fact that the list was notified to the Labour Inspector on the same day as the letters of dismissal were sent to the dismissed employees was not an error because the law does not specify when the Labour Inspector must be notified, especially since there was nothing which precludes to do so. However, they assert that this reasoning does not take into

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account the provisions of Article 34 of Law No 13/2009 of 27/05/2009 regulating labour, which was into force by the time of Nyirabwiza Justine's dismissal. This article states that before dismissing workers for economic reasons, the ranking of dismissals shall be done in accordance with the performance, professional qualifications, time spent in the enterprise, and social charges of each worker, those elements should be taken into consideration as listed. The employer informs the competent labour inspector in a written form.

They argue that the Court's ruling that there was no breach of the law in UNGUKA BANK Plc's notification of the list of employees to be dismissed to the Labour Inspector because such notification was sufficient regardless of the timing, contradicts the stance provided by the Supreme Court in the judgment RSOCAA 0014/12/CS of Musoni wa Rwihimba Désiré vs. Bank of Kigali Ltd, particularly in paragraphs 27-29. In paragraph 28, the Court decided that: "Notifying the labour inspector is not only a formality but also a necessity. The legislator has not merely provided for it. The reason why the legislator provided for it was to enable the labour inspector to verify whether those on the list were indeed the ones to be dismissed and whether the dismissal was carried out in accordance with the requirements of the law."

They also contend that these explanations are reflected in the labour judgments rendered by the High Court, including the judgment RSOCA 00206/2018/HC/KIG, Urwego Opportunity Bank Ltd v. Niyonsaba Clémentine, where paragraphs 13-17 clarify how the article should be interpreted. Additionally, the judgment RSOCA 00224/2018/HC/KIG, Uwimana Marie Paul et al. v. Urwego Opportunity Bank Ltd, provides further elucidations in paragraphs 14-21, and the judgment RSOCA 00017/2018/HC/KIG, Banque Populaire du Rwanda Ltd v. Sekamana Naason et al., highlights the relevant points in paragraphs 18 and 22. However, in rendering the judgment under review on the grounds of injustice, the High Court overlooked these precedents and failed to recognize that Nyirabwiza Justine had the right to be notified of the list even before it was submitted to the Labour Inspector, and this was not done.

They also add that Nyirabwiza Justine challenges the economic reasons given by UNGUKA BANK Plc in the dismissal letter, arguing that there is no evidence that these reasons existed at the time of her dismissal. This contention is supported by evidence provided by UNGUKA BANK Plc itself, which shows that on 31/08/2018, it requested authorisation from BNR to close some of its branches, and BNR responded on 15/10/2018, three months after Nyirabwiza Justine's dismissal. Furthermore, she was not employed in the branches that were to be closed and therefore could not be affected by this decision. They claim that another reason for their client's criticism of the economic rationale given by UNGUKA BANK Plc is that in the same month of October, the Bank opened a new branch. They argue that if the Bank was really facing the financial difficulties, it would not have opened additional branches and hired new staff after dismissing existing staff.

They further contend that the statements made by UNGUKA BANK Plc that the termination of Nyirabwiza Justine's contract was based on her performance evaluation, which resulted in placing on the list of dismissed employees, are unfounded. They argue that the evaluation was conducted in a manner contrary to the procedures outlined in the employment contract she signed with the Bank, specifically the "performance contract" and the "Human Resource Manual." This is evident in the "performance contract" dated 05/09/2018, between Nyirabwiza Justine and UNGUKA BANK Plc, where Article 4 regarding "performance evaluation

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procedures" states that: “Before submission of the self-assessment as per set deadline, the supervisor has the responsibility to discuss and arbitrate such performance self-assessment together with the employee in 2 days after and have such the evaluation closed and filled with HR on the 5th day without fail.”

They explain that Article 6 of the performance contract clearly stipulates that if an employee scores less than 50% in two consecutive terms, the employment contract will be terminated. This is also stated in clause 9.5.2 of UNGUKA BANK Plc's "Manuel de Procédure" in its penultimate paragraph, where both documents indicate that an employee who scores below 50% in two consecutive terms will have the contract terminated, but only after being warned in advance. They assert that UNGUKA BANK Plc's claim that one of the grounds for terminating Nyirabwiza Justine's employment was her performance score of less than 50% is unfounded and contrary to what was agreed upon. They argue that this justification is baseless as it contradicts the provisions of the labour law into force at that time, as well as Articles 64 and 70 of Law No 45/2011 of 25/11/2011 governing contracts, which emphasize that contracts made in accordance with the law are binding between the parties and must be performed in good faith.

The legal counsel of UNGUKA BANK Plc submits that, in the judgment RSOCA 00079/2020/HC/KIG, Nyirabwiza Justine v. UNGUKA BANK Plc, there was no breach of law because the legislator did not set a specific time limit for notifying the labour inspector. Therefore, by notifying the labour inspector at the same time as Nyirabwiza Justine, no legal provision was violated. Additionally, Nyirabwiza Justine was not dismissed on the day on which the labour inspector was informed about the dismissal of employees of UNGUKA BANK Plc for economic reasons. Instead, the labour inspector was notified on the same day on which Nyirabwiza Justine was given a month's notice, and at that time, she was still an employee of UNGUKA BANK Plc. This was in accordance with the provisions of Article 27, paragraph 2, of Law No 13/2009 regulating labour, which was into force at that time, as well as the current Article 29 of Law No 66/2018 of 30/08/2018 regulating labour in Rwanda. Her employment contract with UNGUKA BANK Plc was officially terminated on 30/08/2018.

He further submits that, regarding Nyirabwiza Justine's claim that she had the right to be notified of the list of dismissed workers before it was submitted to the labour inspector, the High Court clearly explained in the judgment RSOCA 00079/2020/HC/KIG, in paragraph 9, that this procedure is not stipulated by the law, and therefore, failure to comply with it would not constitute a violation of the provisions of Article 34 of Law No 13/2009 of 27/05/2009 regulating labour. Additionally, Nyirabwiza Justine did not challenge the explanation (motivation) provided by the High Court. Since the review of a judgment on grounds of injustice is a special appeal, the scope of the case is determined by the specific criticisms raised by the applicant regarding the judgment under review, as explained in the manual outlining the procedure for such cases, on page 45. Therefore, Nyirabwiza Justine did not raise any criticism regarding her right to be notified in advance of the list of dismissed employees by UNGUKA BANK Plc on 30/07/2018 since this issue does not fall within the scope of what should be considered in this case.

He further states that regarding Nyirabwiza Justine's criticism of the economic reasons cited by UNGUKA BANK Plc for her dismissal, the representative of UNGUKA BANK Plc argues that this issue should not be considered because it was not raised at either the first instance or appeal level. In the first instance, three issues were raised: determining the consequences of

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non-compliance with the mandatory procedure for reducing employees for economic reasons; the issue of other compensations arising from the mistakes of UNGUKA BANK Plc and the consequences they caused; and determining whether all the formalities required in the event of a reduction of workers for economic reasons were observed. Thus, it is understood that Nyirabwiza Justine agreed with UNGUKA BANK Plc regarding the existence of economic reasons, but only criticized the failure to follow the proper procedure.

The legal counsel further asserts that in the judgment No RSOCA 00079/2020/HC/KIG, UNGUKA BANK Plc appealed the issue of whether the Labour Inspector had been notified in accordance with the law, as well as the basis of the damages ordered at the first instance. In the cross-appeal, Nyirabwiza Justine requested an increase in the calculated damages. Therefore, the legal counsel argues that she cannot request that the judgment No RSOCA 00079/2020/HC/KIG should be reviewed on the grounds of injustice based on issues that were not examined in that judgment. This confirms that the case she challenges is different from the one she originally had against UNGUKA BANK Plc. The Supreme Court, in the judgment RS/INJUST/RC 00024/2018/CS rendered on 21/02/2020, in paragraphs 20 and 21, ruled that the party must indicate the injustice contained in the judgment under criticism, specifically what the Court did wrongly or omitted to do. This is also the stance relied on by the Court of Appeal in the judgment RS/INJUST/RCOM 00006/2021/CA rendered on 17/06/2022, where the Court found that the claimed damages had not been adjudicated at the level of the judgment review on grounds of injustice and, therefore, should not be considered.

The Bank's legal counsel also argues that the issue of Nyirabwiza Justine's performance evaluation cannot be used as grounds to claim that the judgment RSOC 00079/2020/HC/KIG wronged her because this issue was never raised at the first instance nor was it relied upon in that judgment. Furthermore, Nyirabwiza Justine did not submit this issue to the Labour Inspector or to the previous courts, as she had accepted the evaluation that was conducted. Even if she was dissatisfied with her performance evaluation score, but did not sue for it, she cannot now claim that the Court wronged her based on the performance evaluation, as this matter has never been previously adjudicated.

DETERMINATION OF THE COURT Whether Nyirabwiza Justine was unlawfully dismissed from her employment

The debate in this case primarily revolves around whether UNGUKA BANK Plc adhered to the provisions of Article 34 of Law No 13/2009 above mentioned in dismissing Nyirabwiza Justine for economic reasons, specifically whether the Bank complied with the requirements to notify the Labour Inspector.

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Article 34 of Law No 13/2009 of 27/05/2009 regulating labour in Rwanda, which was into force at the time of Nyirabwiza Justine's dismissal, provides as follows: The employer may proceed to dismiss individual or collective worker(s) due to economic reason, internal reorganization or consecutive restructuring for economic difficulties or technological transfers with the aim of protecting the competitiveness of the enterprise. In such a case the dismissal ranking shall be done in accordance with the performance, professional qualification, time spent in the enterprise and social charges of each worker. The employer informs the competent labour inspector in a written form.

The Court finds that the issue of notifying the Labour Inspector of the list of employees dismissed for economic reasons was addressed by the Supreme Court in its judgment RSOCAA 0014/12/CS, Musoni wa Rwihimba Désiré v. Bank of Kigali Ltd, where it explained that the establishment of a list of workers to be dismissed under the conditions set out in Article 34 of the aforementioned law and its notification to the Labour Inspector is not merely a formality, but is intended to allow proper verification, thereby ensuring that the legal requirements are met1.

The case file contains a letter dated 30/07/2018, terminating the employment contract between UNGUKA BANK Plc and Nyiramwiza Justine. In this letter, UNGUKA BANK Plc expresses regret in informing her that her employment contract has been terminated for economic reasons. The letter further states that the termination would take immediate effect on 30/07/2018, and that she would receive all entitlements as required by law not later than 31 July 2018 after completing the handover. Additionally, it mentions that she would be paid for the 30 days' notice period. The file also shows that on 30/07/2018, UNGUKA BANK Plc notified the Labour Inspector of the list of employees to be dismissed for economic reasons.

With regard to determining whether the notification to the Labour Inspector was made in a lawful manner, Article 34 in fine does not specify the exact timing for when the employer must notify the Labour Inspector of the list of workers dismissed for economic reasons and how this list was prepared. It only stipulates that the Labour Inspector must be notified.

The Court finds that although this article does not specify the exact timing for notifying the Labour Inspector of the list, it is important to consider the reason behind this requirement. According to the legal experts, the Labour Inspector is responsible for monitoring compliance with labour laws and regulations2.

Considering the provisions of Article 34 of Law No 13/2009 of 27/05/2009, and reconciling them with the explanation provided by the Supreme Court in the judgment RSOCAA 0014/12/CS, Musoni wa Rwihimba Désiré vs. Bank of Kigali Ltd, where it is stated that notifying the Labour Inspector is not merely a formality but a necessary step to ensure compliance with the law, and further supported by legal documents which explain that the Labour Inspector is responsible for verifying adherence to labour laws and regulations, the Court finds that this implies that the list of workers to be dismissed for economic reasons must be submitted to the Labour Inspector before

1 See paragraph 28 of the judgment RSOCAA 0014/12/CS, Musoni wa Rwihimba Désiré v. Bank of Kigali Ltd rendered on 18/01/2013. 2 L’inspection du travail est chargée d’assurer le contrôle de l’application des prescriptions légales et réglementaires en matière du travail (Françoise Favennec-Hery Pierre-Yves Verkindt, Droit du travail, 6e édition, Paris, LGDJ, 2020, p. 496).

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the dismissal takes place. In other words, the Labour Inspector must be informed of the list in advance and given the opportunity to verify whether the individuals on the list are the appropriate candidates for dismissal and whether the list has been drawn up in accordance with legal requirements.

The Court finds that in its analysis of the above-mentioned article, the High Court ruled that the labour law did not stipulate a specific deadline for submitting the list of employees to the Labour Inspector, nor did it grant the Labour Inspector the authority to approve or request changes to the list of employees to be dismissed for economic reasons. The High Court further stated that providing the list to the Labour Inspector prior to the dismissal was not beneficial to either the employee or the employer. However, this opinion of the High Court contradicts the decision made by the Supreme Court in case RSOCAA 0014/12/CS (Musoni wa Rwihimba Désiré v. Bank of Kigali Ltd), which clarified that notifying the Labour Inspector is not merely a formality but is necessary for a thorough examination to ensure that the dismissal is conducted in accordance with the law. Furthermore, no subsequent decision by the Supreme Court has overturned this precedent, which firmly establishes that the notification of the Labour Inspector is a substantive legal requirement aimed at ensuring the law is properly followed.

The Court finds that the High Court should have recognized that UNGUKA BANK Plc's act of notifying the Labour Inspector of the list of employees to be dismissed on the same day it informed Nyirabwiza Justine that her dismissal would be effective immediately was a mere formality. This action was contrary to the purpose of Article 34 of Law No 13/2009 mentioned above.

The Court finds that the statements made by the legal counsel of UNGUKA BANK Plc, claiming that the judgment RSOCAA 0014/12/CS rendered on 18/01/2013, Musoni wa Rwihimba Désiré v. Bank of Kigali Ltd., is not applicable to this case because in that instance no list was drawn up, are baseless. The key issue is that the Supreme Court analysed Article 34 of Law No 13/2009 and clarified that notifying the Labour Inspector of the list of employees to be dismissed is not merely a formality. Therefore, UNGUKA BANK Plc's act of notifying the Labour Inspector on the same day it dismissed Nyirabwiza Justine indicates that the Bank treated the notification as a formality, which is contrary to the intent of Article 34 of the aforementioned Law No 13/2009.

The Court further finds that the statements made by the legal counsel of UNGUKA BANK Plc, asserting that Nyirabwiza Justine remained an employee of UNGUKA BANK Plc until 30/08/2018, are unfounded. This assertion seems to imply that the Labour Inspector was notified of the list before Nyirabwiza Justine was dismissed. However, as previously stated, UNGUKA BANK Plc informed Nyirabwiza Justine that she was no longer its employee as of 30/07/2018.

Based on the foregoing elucidations, the Court finds that Nyirabwiza Justine was unlawfully dismissed. Therefore, the judgment RSOCA 00079/2020/HC/KIG rendered by the High Court on 17/11/2020 is vitiated by injustice on this point.

The Court finds that the other reasons put forward by Nyirabwiza Justine's legal counsel to explain why Article 34 of Law No 13/2009 was not complied with, such as the manner in which the evaluation marks were awarded and the absence of economic reasons, no longer require examination. This is because the Court has already determined that Nyirabwiza Justine was

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unlawfully dismissed, based on the failure to communicate the list of dismissed workers to the Labour Inspector in a timely manner before the decision to dismiss her was made. These additional reasons were intended solely to emphasize her unlawful dismissal and the violation of the law.

The Court finds that, having established that Nyirabwiza Justine was unlawfully dismissed, it is necessary to assess the consequences, specifically the basis for the quantity of moral damages that she seeks.  Determination of the basis and amount of the moral damages claimed by Nyirabwiza Justine

Article 33 of Law No 13/2009 of 27/05/2009 regulating labour in Rwanda, which was into force at the time of Nyirabwiza Justine's dismissal, provides as follows: 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 exceed the six (6) - month salary. This does not preclude the payment of indemnities and other benefits to which the worker is entitled. And paragraph 2 of the same article reads that: Where the worker has worked for the employer for a period which is longer than ten (10) years, damages shall not go beyond the salary of nine (9) months. This also applies in the case of workers’ delegates and the representatives of trade union.

In the judgment RS/INJUST/RSOC 00001/2019/SC rendered by the Supreme Court on 31/01/2020, in the case of Niwemugeni Jeannette vs. KCB Bank Rwanda Plc, the Court clarified that the amount awarded to a dismissed employee should correspond to their "net salary" rather than their gross salary. This ruling signifies a departure from previous decisions made by the Court, such as in the cases RSOCAA 0003/15/CS decided on 05/05/2016, Rugenera Marc v. Soras Assurances Générales Ltd (SORAS AG), and RSOCAA 0001&0002/16/CS decided on 14/10/2016, Ntukamazina Jean Baptiste v. Prime Insurance Ltd (PRIME), where it was established that the damages for dismissal were based on the gross salary. However, those earlier judgments did not provide a legal rationale for this approach3.

The case file contains a document titled "Payslip," indicating that Nyirabwiza Justine's gross salary was 506,228 Frw, while her net salary was 318,648 Frw.

According to the judgment RSOC 00012/2019/TGI/NYGE handed down by the Intermediate Court of Nyarugenge on 28/02/2020, Nyirabwiza Justine was awarded damages equivalent to nine months' salary, calculated as 506,228 Frw x 9 = 4,556,052 Frw.

As stated above, Nyirabwiza Justine was unlawfully dismissed and should therefore be awarded damages equivalent to nine months' salary for being dismissed from her job after more than ten years of service with UNGUKA BANK Plc. The Court finds that the damages should be calculated based on net salary instead of gross salary, as ruled by the Supreme Court in the aforementioned case of Niwemugeni Jeannette vs. KCB Bank Rwanda Plc. Thus, the damages are calculated as 318,648 Frw x 9 = 2,867,832 Frw, rather than 4,556,052 Frw as ruled by the Intermediate Court of Nyarugenge, which were calculated on gross salary.

3 See paragraph 36.

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 Whether Nyirabwiza Justine was given proper notice when UNGUKA BANK Plc terminated her employment contract

The legal counsel of Nyirabwiza Justine argue that, regarding the notice in the case under review on the grounds of injustice, the Court reiterated that the list of dismissed workers was notified to the Labour Inspector on the same day as the letters of notice and dismissal to the employees. However, this does not mean that the Labour Inspector was notified before the employees were dismissed. The Court based its conclusion on the fact that the employees were given notice in the dismissal letters, indicating that they were still awaiting the dismissal. They contend that this explanation given by the High Court contradicts the contents of the letter terminating Nyirabwiza Justine's employment contract, reference UB/CEO/529/SC/532/018, dated 30/07/2018, written by the CEO of UNGUKA BANK Plc. The purpose of this letter was not explicit, and it informed her that "her employment contract with the Bank has been terminated and that the decision will be effective from the date of 30/07/2018."

They assert that in that letter, UNGUKA BANK Plc did not anticipate that the decision could be reversed, as the Court implied. Furthermore, the letter did not clarify when the notice would end, only stating that the notice period would be substituted with monetary compensation. They argue that this is one of the grounds on which Nyirabwiza Justine relies to demonstrate that she suffered injustice, particularly because she believes this interpretation contradicts the provisions of the law and the opinions of legal experts, as well as what has been established in previous cases. Specifically, they emphasize that the notification must be provided in writing to the concerned party, and the reasons for the termination of the contract must be clearly indicated.

They further contend that the provisions of Article 29 of the Labour Law state that "an open-ended contract may always be terminated by the will of either of the parties, but for legitimate motives." This termination is subject to a prior notice given by the party initiating the termination. Legal experts explain that “the notice period corresponds to the time that must elapse between the employee's notification of resignation or dismissal and the actual date of departure4.” Additionally, Article 30 of the same Law defines how the notice must be given, stating that "The notice shall be addressed to the interested party in writing, specifying the reasons for termination." They further assert that the opinions of legal experts are based on court precedents regarding notification of notices. Jean Pélissier and his colleagues state that the legislator requires that the employer dismissing an employee must notify the employee of the dismissal by registered letter and must include the reason(s) for the dismissal in that letter. Furthermore, “the cassation court separates the notification of the dismissal from the phases of the dismissal procedure and introduces a strict penalty when the notification does not meet the requirements of the law5.”

They further explain that legal scholars, including Céline Lavachy and her colleagues, have stated that the period of notice fixed by the employment contract is an element of that contract and

4 “Le délai de préavis correspond à la période qui doit s'écouler entre la notification de démission ou de licenciement de l'employé et la date effective du départ de l'employé”. 5 Le législateur prévoit que l’employeur, auteur du licenciement doit notifier le licenciement au salarié par lettre recommandée et qu’il doit mentionner dans cette lettre le ou les motifs de licenciement» and "La Cour de cassation isole la notification du licenciement des phases de la procédure de licenciement et instaure une sanction rigoureuse lorsque la notification ne répond pas aux exigences de la loi."

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cannot therefore be altered unilaterally by the employer6. They argue that any such change would violate Article 64 of the aforementioned Law governing contracts, which stipulates that contracts made in accordance with the law are binding between the parties. Consequently, Nyirabwiza Justine criticizes the Court's confirmation that she received notice when, in fact, she did not receive any.

They also argue that UNGUKA BANK Plc’s claim that it gave Nyirabwiza Justine notice is incorrect, as there is a specific procedure for issuing such notice. Referring to Article 70 of Law No 45/2011 of 25/11/2011 governing contracts, which stipulates that "Each party shall have the obligation to perform the contract in good faith and fair dealing between the parties". they contend that Nyirabwiza Justine's indefinite employment contract with UNGUKA BANK Plc required that either party wishing to terminate the contract must give the other notice. Since UNGUKA BANK Plc chose to terminate the contract, it was obligated to give notice in accordance with the provisions of both the contract and Article 1, paragraph 21, of Law No 13/2009 of 27/05/2009 regulating labour, which states that "termination of an employment contract by the employer without justifiable reason or observance of procedures established by law is regarded as an unfair dismissal." They further argue that UNGUKA BANK Plc’s actions in dismissing Nyirabwiza Justine without proper notice amount to unfair dismissal. Therefore, they assert that the High Court disregarded these facts when it ruled that UNGUKA BANK Plc acted in accordance with the law and that Nyirabwiza Justine had been given proper notice.

The legal counsel of UNGUKA BANK Plc submits that the grounds on which Nyirabwiza Justine relies, in the first and second arguments, to request a review of case RSOC 00079/2020/HC/KIG on the basis of injustice, are not consistent with the provisions of Article 55 of Law No 30/2018 of 02/06/2018 determining the jurisdiction of the courts, instead, she seems to have initiated the case as at the first instance, ignoring that there are precedents that were even relied upon to transfer the case to this Court. Moreover, she was unable to prove before the High Court that no notice was given or that it was not given in writing, and that the Court disregarded such fact.

He argues that Nyirabwiza Justine's claim should not be considered under Article 55 of Law No 30/2018 of 02/06/2018 determining the jurisdiction of courts. He emphasizes that she has failed to demonstrate any injustice suffered as a result of the High Court’s statements or its decision, particularly regarding the two grounds on which she bases her claim of injustice. Specifically, the Court upheld that the notice period is the time between the notification of the employee’s resignation or dismissal and the actual termination date, and that the notice must be given in writing to the concerned party, clearly stating the reasons for contract termination. He argues that her claim does not align with the provisions of Article 55 of the aforementioned law.

He further submits that Nyirabwiza Justine did not present evidence to the appellate court proving that she was not given notice or that the notice was not provided in writing, and that the court did not ignore these grounds. Instead, he argues that she deliberately overlooks the fact that the termination letter clearly states she was given one month's notice, from 30/07/2018 to 30/08/2018, but that the employer chose to substitute this notice period with a monetary payment,

6 “La durée de préavis fixée par le contrat de travail constitue un élément de ce contrat et ne peut donc être modifié unilatéralement par l’employeur”.

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which is legally permissible. He adds that she herself acknowledges receiving the payment in lieu of notice, as reflected in the final statement of her account, yet she now claims that she was not given proper notice. Therefore, he contends that her two grounds for review should not be addressed in the same case.

He further states that Nyirabwiza Justine's claims are unfounded, referring to Article 32 of Law No 13/2009 of 27/05/2009 regulating labour in Rwanda, which was into force at the time. This article provides that "Any termination of contract without notice or without observing the notice period compels the responsible party to pay the other party an allowance corresponding to the salary and other benefits from which the worker would have benefited during the notice period that has not been effectively respected." He highlights that the law refers to this payment as "Indemnité compensatoire de préavis" (Compensatory payment in lieu of notice) in its French version, meaning that the legislator allows the option to provide notice either in advance or through monetary compensation.

He further explains that this principle was clarified by the Supreme Court in case RS/INJUST/RSOC 00001/2019/SC [32,33], Niwemugeni Jeannette v. KCB BANK Rwanda Plc, where the Court explicitly stated that if the notice period is not provided and is instead substituted by a payment equal to the salary and other benefits the employee would have received during that period, there is no violation of the law. This aligns with the High Court’s finding in case RSOC 00079/2020/HC/KIG under review on the grounds of injustice. In paragraph 18, the Court clearly explained that the payment Nyirabwiza Justine received, which corresponded to what she would have earned during the notice period, did not violate the legal provisions regarding notice. In fact, the Court highlighted that Nyirabwiza Justine benefited from the arrangement because during the notice period, she would have been expected to continue working while being entitled to one day off per week to seek other job. By receiving the payment in lieu of the notice, she effectively gained the entire month off, while still receiving her salary for that period. This compensation (money in lieu of notice) was thus advantageous to her.

He concludes by stating that, based on the fact that Nyirabwiza Justine received a monetary payment in lieu of notice in accordance with the law, UNGUKA BANK Plc maintains that there is no injustice in the judgment under review, RSOC 00079/2020/HC/KIG, as she has failed to prove that the court’s judgment is erroneous. DETERMINATION OF THE COURT

Article 29 of Law No 13/2009 of 27/05/2009 regulating labour in Rwanda, which was into force at the time of Nyirabwiza Justine's dismissal, reads that: An open-ended contract may always be terminated by the will of either of the parties but for legitimate motives. This termination is subject to a prior notice given by the party that takes initiative of termination.

Article 32 of the aforementioned Law No 13/2009 of 27/05/2009 reads that: Any termination of contract without notice or without having observed the notice period compels the responsible party to pay the other party an allowance corresponding to the salary and other benefits from which the worker would have benefited during the notice period that has not been effectively respected.

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As stated above, the letter UNGUKA BANK Plc wrote to Nyirabwiza Justine on 30/07/2018, informing her of the termination of her employment contract and stating that it was with immediate effect, indicates that no notice period was given. As previously mentioned, where no notice period is given, compensation is payable equal to the amount of salary and other benefits due to the employee during the notice period, and UNGUKA BANK Plc has complied with this requirement. This substitution of the notice period is not unique to Rwandan labour law. As recalled in judgment RS/INJUST/RSOC 00001/2019/SC7, which referred to the opinions of legal scholars François Gaudu and Raymonde Vatinet, as well as Gilles Auzero and Emmanuel Dockes8, an employer may waive the employee's attendance during the notice period and instead provide monetary compensation. Since UNGUKA BANK Plc did not give a notice period but paid Nyirabwiza Justine compensation equal to the salary and other benefits entitled to her during the notice period, and since Nyirabwiza Justine does not deny receiving that payment, the Court finds that UNGUKA BANK Plc complied with the provisions of Article 32 of Law No 13/2009 of 27/05/2009 referred to above. Therefore, there is no manifest injustice in this regard in judgment RSOCA 00079/2020/HC/KIG rendered by the High Court on 17/11/2020.  Whether Nyirabwiza Justine should be compensated for prejudice caused by the decision of dismissing her

Nyirabwiza Justine's legal counsel argue that the fact she is still unable to secure a job, combined with the unreasonable decision by UNGUKA BANK Plc, which has deprived her of the opportunity to receive her rightful pension, has caused her to suffer significant consequences. These are important reasons why she should be awarded damages equivalent to her salary for 12 months, i.e., 542,292 Frw x 12 (months) = 6,507,504 Frw, to account for the consequences, losses, and the prejudice caused to her by that decision9.

The legal counsel of UNGUKA BANK Plc submit that the damages of 12 months' salary sought by Nyirabwiza Justine in this case is unfounded. They argue that, in addition to her failure to establish the legal basis for the alleged injustice with factual evidence, her claim that she cannot find employment elsewhere, if true, is not UNGUKA BANK Plc's fault. He contends that the Bank terminated her contract for economic reasons and complied with all legal provisions in her case. Furthermore, he states that UNGUKA BANK Plc has never asserted or confirmed that Nyirabwiza

7 See judgment RS/INJUST/RSOC 00001/2019/SC rendered on January 31,2020, Niwemugeni Jeannette v. KCB BANK Plc 8 “Le préavis est en principe une période de travail, le salarié devant rester à la disposition de l’employeur. L’employeur peut cependant dispenser le salarié de l’exécution du préavis, en lui versant alors l’équivalent du salaire sous forme d’une indemnité de préavis;” François Gaudu et Raymonde Vatinet, Droit du travail, 5e édition, Dalloz, 2013, p. 213- 214. “Le délai–congé ou préavis n’existe en principe que dans les cas où la rupture du contrat de travail résulte de la volonté unilatérale d’une des parties au contrat: licenciement, ……. L’employeur a droit de dispenser unilatéralement le salarié d’exécuter son travail pendant le délai-congé à condition de lui verser toutes les sommes que celui-ci aurait perçues s’il avait fourni sa prestation de travail jusqu’à l’expiration du préavis.” Gilles Auzero et Emmanuel Dockes; Droit du travail, 30e édition, Dalloz, 2016, p. 610, 619. 9 Legal scholars such as Jean Pélissier and his colleagues Gilles Auzero & Emmanuel Dockès, all agree that:” Le droit de l’employeur de dispenser le salarié de fournir sa prestation de travail pendant le préavis est, comme tout droit, susceptible d’abus. Il y a abus lorsque la décision de l’employeur s’accompagne d’une brutalité et de méfiance, qui fait supposer aux tiers que le salarié a commis une faute grave. Dans ce cas, l’employeur devra non seulement payer une indemnité compensatrice de préavis, mais également des dommages et intérêts en réparation du préjudice subi par le salarié”.

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Justine has any defect preventing her from seeking job elsewhere, nor has it restricted her ability to seek for job in order to qualify for social security benefits, including a pension. Consequently, her claim for damages on these grounds is unfounded. DETERMINATION OF THE COURT

The Court finds that Nyirabwiza Justine, apart from merely stating that she is claiming damages in the amount of her 12 months' salary due to the unlawful decision taken by UNGUKA BANK Plc, does not specify the legal basis for her claim, nor does she provide evidence of any abuse or defamation by UNGUKA BANK Plc in dismissing her. As a result, the damages she is claiming are unfounded, as they lack a clear legal or factual basis.  Whether Nyirabwiza Justine should be reimbursed the money ordered by the Court to be paid to UNGUKA BANK Plc

The legal counsel of Nyirabwiza Justine argues that in the case under review on the grounds of injustice, the Court ordered to Nyirabwiza Justine to pay to UNGUKA BANK Plc the damages amounting to 640,000 Frw. Therefore, she requests that if the Court finds her claim to be founded, it should order to UNGUKA BANK Plc to reimburse the money.

The legal counsel of UNGUKA BANK Plc submits that Nyirabwiza Justine has not yet been able to prove the legal basis for the injustice she claims, nor has she presented factual evidence to support it. Therefore, the judgment RSOCA 00079/2020/HC/KIG should be upheld. Regarding the damages that Nyirabwiza Justine was ordered to pay to UNGUKA BANK Plc, the Bank argues that it is justified and should be upheld because Nyirabwiza Justine sued the Bank despite the fact that her contract was terminated for economic reasons, and she was given everything she was entitled to under the provisions of the law. DETERMINATION OF THE COURT

The ruling in case RSOCA 00079/2020/HC/KIG, decided by the High Court on 17/11/2020, indicates that Nyirabwiza Justine was ordered to pay to UNGUKA Bank Plc 500,000 Frw as counsel fees, 100,000 Frw as procedural fees, and to refund the 40,000 Frw the Bank deposited as court fees, bringing the total to 640,000 Frw.

The Court finds, as stated above, that Nyirabwiza Justine was unlawfully dismissed by UNGUKA BANK Plc. Consequently, she must be reimbursed the amount of 640,000 Frw she paid to UNGUKA BANK Plc for the execution of the judgment RSOCA 00079/2020/HC/KIG rendered by the High Court on 17/11/2021.  Whether the claimed procedural fees, counsel fees, court fees, and damages for being dragged into unnecessary lawsuits are justified

The legal counsel of Nyirabwiza Justine, with reference to Article 24, paragraph 3, and Article 34 of Regulation No. 01/2014, fixing the scale of fees for advocates, request the Court of Appeal to order to UNGUKA BANK Plc to pay to Nyirabwiza Justine 3,000,000 Frw for counsel

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fees for the various proceedings undertaken in pursuing the case from the first instance up to this level of appeal.

With reference to Article 111 of Law No 22/2018 of 29/04/2018 relating to the civil, commercial, labour, and administrative procedure, they are requesting the Court to order to UNGUKA BANK Plc to pay to Nyirabwiza Justine 3,500,000 Frw for dragging her into unnecessary lawsuits.

In accordance with the provisions of Article 269 of Law No 22/2018 of 29/04/2018 mentioned above, they are requesting that UNGUKA BANK Plc should refund to Nyirabwiza Justine the 20,000 Frw she deposited as the court fee at the first instance.

The legal counsel of UNGUKA BANK Plc submits that Nyirabwiza Justine should bear the responsibility of paying counsel fees in these cases, as she initiated the lawsuits and ultimately lost. He argues that she is fully aware that UNGUKA BANK is not the party that brought action against her, and she has failed to demonstrate any injustice suffered as a result of the judgment in case RSOC 00079/2020/HC/KIG.

He further submits that Nyirabwiza Justine should not be awarded the damages of 3,500,000 Frw that she is claiming from UNGUKA BANK Plc, as she was the one who initiated the lawsuits, dragging UNGUKA BANK Plc into them, and ultimately lost. He argues that she has not yet been able to prove any injustice in judgment RSOC 00079/2020/HC/KIG. He adds that she chose to pursue unwarranted and vexatious litigation, disregarding the fact that her contract was lawfully terminated and that she received all entitlements according to legal provisions. Consequently, he asserts that her claim for damages is baseless.

He further submits that Nyirabwiza Justine is responsible for the court fees and all other costs incurred in this case, as she was the one who applied for the review of the case on the grounds of injustice and failed to prove any flaws in the judgment rendered. Therefore, she must bear all the consequences arising from her application.

He also submits that UNGUKA BANK Plc is filing a counterclaim, seeking compensation for all losses incurred in this instance of the case, including legal counsel fees and other expenses related to defending against Nyirabwiza Justine's continued lawsuits. He argues that Nyirabwiza Justine has repeatedly initiated legal actions despite the fact that her employment contract was terminated due to economic reasons and that she received all entitlements as provided by law. Therefore, he requests the Court to order to Nyirabwiza Justine to reimburse UNGUKA BANK Plc 1,500,000 Frw to cover both procedural and counsel fees.

Nyirabwiza Justine's legal counsel, pleading on the money requested by UNGUKA BANK Plc, argue that the claim made by this Bank is baseless, asserting that if the Bank had not unlawfully dismissed Nyirabwiza Justine, this case would never have existed. DETERMINATION OF THE COURT

Article 111 of Law No 22/2018 of 28/04/2018 relating to the civil, commercial, labour and administrative procedure, reads that: The claim for representation fees is an incidental claim to the

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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.

The Court finds that Nyirabwiza Justine should be awarded damages for the expenses incurred while pursuing this case; however, the requested amount is excessive relative to the work done. Therefore, at the discretion of this Court, Nyirabwiza Justine is awarded 500,000 Frw for counsel fees and 200,000 Frw for procedural fees at this level. This amount includes an additional 500,000 Frw for counsel fees at the High Court, bringing the total to 1,700,000 Frw to be paid by UNGUKA BANK Plc. The Court also finds that the Bank must refund her 20,000 Frw, which she deposited as a court fee in the Intermediate Court of Nyarugenge.

Regarding the damages for being dragged into unnecessary lawsuits requested by Nyirabwiza Justine, the Court finds that this amount should not be awarded. Even though UNGUKA BANK Plc unlawfully terminated the contract, it was not the one that initiated the case; instead, it was sued and provided its defense. Therefore, the damages Nyirabwiza Justine is asking for are baseless.

The Court finds that the costs incurred by UNGUKA BANK Plc are unfounded as it was determined that the judgment RSOCA 00097/2020/HC/KIG rendered by the High Court on 17/11/2021 contains injustice. III. DECISION OF THE COURT

Holds that the application filed by Nyirabwiza Justine to review the judgment N° RSOCA 00097/2020/HC/KIG rendered by the High Court on 17/11/2020 on the grounds of injustice has merit in part;

Orders to UNGUKA Bank Plc to pay to Nyirabwiza Justine 2,867,832 Frw as damages for unlawful dismissal;

Orders to UNGUKA BANK Plc to refund to Nyirabwiza Justine 640,000 Frw paid to UNGUKA BANK Plc for executing the judgment RSOCA 00079/2020/HC/KIG rendered by the High Court on 17/11/2021;

Orders to UNGUKA BANK Plc to pay to Nyirabwiza Justine 1,700,000 Frw for both counsel and procedural fees at all instances;

Orders to UNGUKA BANK Plc to refund to Nyirabwiza Justine 20,000 Frw for the court fees she deposited at the first instance.