TUYISENGE v. HAYTON LTD

TUYISENGE v. HAYTON LTD

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2025-02-12 - Case/document no.: RS/INJUST/RSOC 00003/2022/SC - Collection: Supreme Court

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TUYISENGE v. HAYTON LTD [Rwanda SUPREME COURT – RS/INJUST/RSOC 00003/2022/SC – (Nyirinkwaya, P.J, Hitiyaremye and Karimunda, J.) April 14, 2023] Labor law – Employment contract – An employee governed by employment contract – An employee is considered to be governed by unwritten employment contract, when that employee has been employed for at least six consecutive months continuously with the same employer – An employee who claims to be treated in such a manner must provide evidence to prove that they indeed worked during that period continously. Labor law – Employment contract – Casual workers – Social security – Social security contributions must be paid for every employee, regardless of whether they work in the informal sector or engage in casual work. Facts: Hayton Ltd entered into a transport contract with the Rwanda Biomedical Center and sought individuals to assist in this activity, one of them was Tuyisenge who worked for the company without an employment contract from 2014 to August 2017. On that date, upon arriving at his usual place of work, he was informed that there was no work available. He subsequently brought the matter to the Labor Inspectorate in Gatsibo District, but unfortunately, no agreement was reached. Consequently, he seized the courts. Tuyisenge filed a lawsuit in the Intermediate Court of Nyagatare, accusing Hayton Ltd of wrongful termination. He

sought damages for illegal dismissal, payment for notice he was not given, termination benefits, a work certificate which was not provided, unpaid leave, social security contributions not paid, counsel fees, procedural fees and a refund of deposited court fees. The Court dismissed his claim as unfounded due to the casual nature of his work, leading him to appeal to the High Court, Rwamagana Chamber, which also rejected his appeal. The ruling of the judgment under appeal was sustained and the Court ordered that no damages should be awarded in this instance because both parties were found to have irregularities. The claimant requested a review of the judgment rendered by the High Court, citing injustice. He demonstrated that his injustice stemmed from the fact that he had worked for the respondent on a permanent basis, resulting in an illegal dismissal and claimed that the Court did not award him various damages associated with such a dismissal. Additionally, the respondent failed to pay his social security contributions and he is requesting the Court to order to the defendant to do so. The respondent claims that the claimant did not work for him on a permanent basis but was a casual worker. Therefore, they argue that they did not dismiss him illegally, and as such, he is not entitled to damages. Additionally, they contend that he was not even entitled to social security contributions. Held: 1. An employee under an unwritten contract is defined as any individual who has been employed for at least six consecutive months on a permanent basis with the same employer - An employee who claims to be treated in such a manner must provide evidence to prove that they indeed worked during that period and on a permanent basis.

2. Social security contributions must be paid for every employee, regardless of whether they work in the informal sector or engage in casual work. Therefore, Tuyisenge must be paid social security contributions by his employer, HAYTON Ltd, even though he worked for it as a casual worker.

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Application for review of a judgment on grounds of being vitiated by injustice has merit in parts; The deposited court fees are borne to the respondent. Statutes and statutory referred to: Law n°22/2018 of 29/04/2018 relating to the civil, commercial, labour and administrative procedure, article 12; Law n° 13/2009 of 27/05/2009 regulating labour in Rwanda, articles 1, 15, 33 and 47; Law nº 15/2004 of 12/06/2004 relating to evidence and its production, article 3; Law n° 06/2003 of 22/03/2003 modifying and completing the decree-law of August 22, 1974 concerning organisation of Social Security, article 2; Law nº 51/2001 of 30/12/2001 instituting the labour code in Rwanda, articles 17, 29 and 33. Cases referred to: Phoenix Metal v. Rwanteli Ntagara Innocent, RSOCAA 0023/09/CS decided by the Supreme Court on 18/06/2010. Judgment I. BACKGROUND OF THE CASE [1] On 09/09/2014, Rwanda Biomedical Center, referred to as RBC in this instant case, entered into a transport agreement with Hayton Ltd number 068/NCS/NCB/2013-2014/RBC. According to this agreement, Hayton Ltd. had to hire people (manpower) to pack and unload the cartons of medicines and other materials that were placed in different places in the country where RBC should deliver them. It is in this context that Hayton Ltd has sought people to help it in this work, including Tuyisenge Pascal who worked for Hayton Ltd with no

employment contract from 2014 to August 2017, where he alleges that on that date he arrived at his usual place of work and was told that there was no work. [2] Tuyisenge Pascal first presented his case to the Labor Inspectorate in Gatsibo District. On 29/05/2020, in the statement of the mediation between him and Hayton Ltd, the two parties failed to reach an agreement, leading him to seize the courts. [3] Before the Intermediate Court of Nyagatare, Tuyisenge Pascal claimed that Hayton Ltd dismissed him illegally, requesting for damages for unfair dismissal, for notice payment he was not given, termination benefits, for the work certificate which was also not given to him, unpaid leaves, social security contributions, counsel's fees, procedural fee and court fees. [4] On 29/10/2019, the Intermediate Court of Nyagatare rendered the judgment RSOC 00008/2018/TGI/NYG and held that the claim of Tuyisenge Pascal is unfounded because he was doing a casual work without knowledge therefore, he was not dismissed illegally, and ordered that no damages should be given in that case, that even the court fees deposited by Tuyisenge Pascal covers expenses incurred, therefore, thus those fees were borne to Public Treasury. [5] Tuyisenge Pascal appealed against the judgment to the High Court, Rwamagana Chamber, stating that his appeal is based on the following grounds : - the fact that the previous Court ignored that he was dismissed illegally without reason;

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- the fact that the Court declared that he was an employee who was taken from the street while that Court had evidence that he worked permanently from 2014 to 2017 when he was suspended, thus ignoring this and ruling that he was a casual worker; - the fact that the previous Court declared that both the employee and the employer are guilty of not complying with the law, where it stated that the employee did not have a written contract with the employer, thus concluding that he was a casual worker, while the employee provided evidence that he was a parmanent employee. [6] On 31/08/2020, the High Court rendered the judgment RSOCA 00015/2019/HC/RWG and held that the appeal filed by Tuyisenge Pascal is unfounded, thus sustaining the judgment under appeal, and ordering that no damages should be given in that case because both parties presented certain irregularities in their performance. [7] In making that decision, the Court based on the following reasons : - The fact that paragraph 341 of article 33 of the Law n0 13/2009 of 27/05/2009 mentioned above, provides that a casual worker is a day-to-day employee, which is similar to the way Hayton Ltd worked with Tuyisenge Pascal, which aligns with the way Hayton Ltd worked with Tuyisenge Pascal. However, the fact that he had been working for the same employer for more than 6 months indicates that he was a permanent employee. - However,

according to Article 11 of that law, which stipulates that an unwritten employment contract cannot exceed 90 consecutive days, it appears that both Hayton Ltd and Tuyisenge Pascal made mistakes. Tuyisenge Pascal agreed to work for Hayton Ltd for more than 6 months without entering into a written employment contract, and his employer did not pay the social security contributions for him, despite the law that protects him. Additionally, Hayton Ltd made mistakes by assuming that the workers who assisted in implementing its contract with RBC were casual workers who were not subject to employment contracts and social security contributions. - The fact that Tuyisenge Pascal was dismissed because Hayton Ltd's contract with RBC ended and the new bidder did not employ him makes it clear that he was not dismissed illegally. Hayton Ltd would not continue to employ him, especially since the company was no longer working for RBC. - The fact that Tuyisenge Pascal was an employee of Hayton Ltd for about 3 years, yet he did not raise any complaints about non-payment of social security contributions for him while he was still working, despite the existence of a law that protected him, indicates that he could have applied to receive these contributions during his employment. However, he chose to sue for them after his employment ended, leading the Court to find no basis for awarding him

compensation, as he was responsible for the situation. - The fact that Tuyisenge Pascal claimed notice and a work certificate showing his employment with Hayton Ltd, without evidence of requesting them from his employer and being denied, means that the Court cannot justify awarding them. Additionally, without evidence of the employment contract or supporting documents, the Court cannot award any damages related to unfair dismissal. [8] On 28/09/2020, Tuyisenge Pascal wrote to the President of the Court of Appeal requesting that the judgment RSOCA 00015/2019/HC/RWG rendered by the High Court, Rwamagana Chamber, on 31/08/2020, should be reviewed on grounds of being vitiated by injustice. After examining his request, the President of the Court of Appeal wrote to the President of the Supreme Court requesting him that

1 But here, the Court erred, it is section 34 of article one.

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the judgment should be reviewed on the grounds of injustice, and after reviewing the report on it, the President of the Supreme Court decided that the case should be heard anew, and it was registered under RS/INJUST/RSOC 00008/2022/ SC. [9] In his submissions, Tuyisenge Pascal argued that the injustice he sought to be reviewed stemmed from working for Hayton Ltd as a permanent and being unlawfully dismissed without receiving due compensation. He also alleged that Hayton Ltd failed to pay his social security contributions and requested the Court to mandate such payments. In response, Hayton Ltd contended that Tuyisenge Pascal was a casual worker, not a permanent employee, thus denying any claims of unfair dismissal and disputing the obligation to pay social security contributions for him. [10] The case was heard in public on 20/03/2023, Tuyisenge Pascal assisted by Counsel Uwiragiye Pierre Célestin together with Counsel Ndayambaje Gilbert, while Hayton Ltd was represented by its Managing Director Ruzibiza Rodrigue assisted by Counsel Mugenzi Elie. [11] During the hearing, the parties argued on the following issues: - Whether Tuyisenge Pascal was unfairly dismissed from work, and should be compensated ; - Whether Hayton Ltd should be ordered to pay social security contributions ; - Regarding the amount of Counsel and procedural fees at all instances. II. ANALYSIS OF LEGAL

ISSUES 1. Whether Tuyisenge Pascal was unfairly dismissed from work [12] Counsel Uwirigaye Pierre Célestin and Counsel Ndayambaje Gilbert, who are assisting Tuyisenge Pascal, argue that their client was unfairly dismissed. They assert that Tuyisenge Pascal worked for Hayton Ltd from 09/09/2014 until August 2017, for three years. They contend that his employer informed him that he had no job without providing any fault or immediate termination reason, despite the existence of an open-ended contract. They further state that during the three-year period, Tuyisenge Pascal consistently worked on packing and unloading medicine cartons and sorting them according to their type, as specified in the contract between RBC and Hayton Ltd on pages 21 and 22, which outlined the activities to be carried out on a permanent basis and the employee's monthly salary. This contradicts Hayton Ltd's defense that they were casual workers. [13] They further add that the proof of Tuyisenge Pascal's status as a permanent employee lies in the records of attendance at work (attendance lists) signed by employees upon arrival, which demonstrate his consistent and permanent work performance. They assert that they have located attendance lists for 2016 and 2017, but have been unable to find others because they have contacted RBC, which has refused to respond. Additionally, they cite a letter dated 27/09/2017

from RBC, stating that the employees working on the MPPD (Medical Procurement Product Division) Project were provided by Hayton Ltd, the winning bidder, and any issues regarding these employees should be addressed to RBC as their employer. [14] They submit that in terms of the provisions of law, the articles 1, 15, paragraph one, 29 and 33 of the Law nº 51/2001 of 30/12/2001 establishing the labour code in Rwanda, which was in force at the time he was working until the time the employment contract was terminated, indicate that he was a permanent employee governed by an unwritten contract, so that he could not be dismissed without a prior notice as well as other employment benefits provided by the law. They also state that they base on the position set in the case RSOCAA 0023/09/CS decided on 18/06/2010 against PHOENIX

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METAL v. Rwanteli Ntagara Innocent, where the Supreme Court defined the illegal dismissal of the employee and what he/she should be granted. [15] Tuyisenge Pascal asserts that Hayton Ltd did not recruit him from the casual workers waiting site (indege)2 as it claims. Instead, he states that he had been working for CAMERWA from 2009 to 2012 as a permanent employee. After CAMERWA became RBC, they continued working for the company, which later transitioned to Solidarity, and subsequently became Abakoranarukundo. In 2014, they began working for Hayton Ltd. Pascal concludes by stating that these companies were transferring him and his colleagues, and they were working without a written employment contract. [16] Counsel Mugenzi Elie assisting the Managing Director of Hayton Ltd, submits that Tuyisenge Pascal was not its permanent employee, instead, he was a casual worker whom he picked from the casual worker waiting site, if he worked for Hayton Ltd from 09/09/2014 to 08/2017 as a permanent employee as he alleges, he would have had a written contract in accordance with the provisions of article 17 of the Law regulating Labour mentioned above, which stipulates that an employee who works for more than six (6) months must have a written form of an employmnent contract. [17] Regarding the attendance lists submitted as proof that Tuyisenge Pascal worked on a permanent basis, Counsel

Mugenzi Elie defends that although Hayton Ltd does not accept these lists because their Managing Director has never signed on them, they serve as evidence that they were signed as casual workers, including Tuyisenge Pascal. This is because it seems that they did not work every day, as the names of attendees changed daily, and none of them ever worked five (5) days in a week. [18] Ruzibiza Rodrigue, Managing Director of Hayton Ltd, states that after entering into a contract with RBC, he went to the casual worker waiting site at different hours every day and selected the required number of workers based on the work needed, such as loading or unloading vehicles, if they arrived. Tuyisenge Pascal was also among them. He explained that upon delivering them to RBC, the security guards registered them into the center and RBC personnel supervised them. In the evening, they were lined up, paid for their work, and allowed to go home.

DETERMINATION OF THE COURT [19] Both parties in this case agree that Tuyisenge Pascal worked for Hayton Ltd, and there was no written contract of employment between them. The disputed issue is the manner in which they worked. Tuyisenge Pascal claims that he worked under an open-ended contract because he worked for the company on a permanent basis for more than six months, as required by law. However, Hayton Ltd argues that he was a casual worker because they hired him only when there was work available. This issue needs clarification to determine whether Tuyisenge Pascal has been unfairly dismissed, entitling him to damages commensurate with that dismissal. [20] Article one, paragraph 33 of Law n013/2009 of 27/05/2009 regulating labor in Rwanda which was into force when Tuyisenge Pascal worked for Hayton Ltd, stipulates that a permanent worker is a worker hired for a fixed-term or an unspecified period that lasts more than six (6) consecutive months with the same employer, and in section 34, it is stipulates that a daily worker is a worker hired on a day to day basis. [21] Article 15, paragraph one of the aforementioned Law, provides that the contract of employment can be oral or written. It can be signed in the form that is suitable to the contracting parties [...] All the means available may be invoked in its proving.

2 A term indege usually refers to the casual worker waiting site.

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[22] The aforementioned articles make it clear that even if the employee does not have a written contract with his employer, if he has worked for the same employer on a permanent basis for at least six consecutive months, he must be considered as an employee covered by a contract, as it is immediately understood that he has an unwritten contract. However, in order for this to be confirmed, the worker claiming this status must provide proof that he or she has actually worked on a permanent basis for six months. [23] Article 12, paragraph one of Law n°22/2018 of 29/04/2018 relating to the civil, commercial, labour and administrative procedure provides that the claimant must prove a claim, failing which the respondent wins the case. The provisions of that article are also in line with what is stated in paragraph one of article 3 of Law nº 15/2004 of 12/06/2004 relating to evidence and its production, which provides that each party must prove his/her allegations. [24] Regarding to this case, Tuyisenge Pascal claims that he was a permanent employee, and the elements of evidence he presents are the attendance lists, photocopy of the check used while withdrawing money for their payments and the letter RBC wrote certifying that he was an employee of Hayton Ltd. [25] Regarding the statements of the Managing Director of Hayton Ltd that he does not accept the attendance lists because he

did not sign on them, the Court finds that this should not be considered because, after all, based on the agreement dated 18/09/2015 with RBC, no where he would have to sign because in the document called "General Conditions of Contract" which is a part of the agreement, both parties agreed that the monitoring of compliance with such agreement will be carried out by the Project Manager, Mr. Muhoracyeye Plagène, and it is clear that she signed on those lists3. [26] Elements of evidence consisting of attendance lists that Tuyisenge Pascal submitted to prove to the Court that he worked for Hayton Ltd on a permanent basis, indicate that he worked as follow: - In 2016: • In August, he worked for 15 days; • In September, he worked for 18 days; • In October, he worked for 17 days; - In 2017 : • In February, he worked for 19 days ; • In March, he worked for 19 days ; • In April, he worked for 19 days ; • In May, he worked 23 days ; • In June, he worked 20 days ; • In July, he worked 11 days. [27] Based on the evidence presented by Tuyisenge Pascal, the Court finds that his statement claiming to have worked for Hayton Ltd for a consecutive six-month period is not accurate. In 2016, he only worked for three months, and it is evident that he did not complete a full month's worth of working days. Similarly, in 2017, he worked for six months, but throughout that period, he did not fulfill a month's worth of working days. Therefore, the Court concludes that he was a casual worker who was paid 1363 Frw per day, as indicated in the letter dated 30.05.2017, which he and his colleagues

3 CGG 25.2. For the Purpose of the contract management and inspection, the Project Manager shall be: RBC/MPPD/Muhoracyeye Plagene/Warehouse Operation Manager.

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wrote to RBC requesting a salary increase. The Court also finds that the fact that Tuyisenge Pascal does not admit that they wrote such letter is unfounded as he produced it before the Intermediate Court of Nyagatare, stating that it constitutes one of the elements of evidence supporting their claim of being permanent employees4. [28] Regarding other elements of evidence presented by the applicant, the Court finds that the check provided does not serve as proof of permanent employment during that period. The check merely indicates the amount of money paid to Tuyisenge Gashugi and do not provide additional information regarding his employment status. Concerning the evidence of the letter written by RBC on 27/09/2017, the Court notes that nowhere in the letter it is stated that Tuyisenge Pascal worked for Hayton Ltd on a permanent basis. As the applicant himself admitted, the letter simply confirms his status as one of the employees of Hayton Ltd, a fact that is not disputed. [29] Based on Article 1, paragraph 33 and Article 15, paragraph one of Law No. 13/2009 of 27/05/2009, as well as the relevant articles pertaining to evidence, the Court concludes that Tuyisenge Pascal has failed to provide sufficient elements of evidence demonstrating his employment with Hayton Ltd on a permanent basis for at least six months, as required by the law to be considered an employee under the

contract. Thus, the Court finds that his dismissal was not unlawful, as he did not hold the status of a permanent employee of Hayton Ltd, as established by the elements of evidence presented. [30] After finding that Tuyisenge Pascal was not unlawfully dismissed by Hayton Ltd because he was not legally employed, the Court finds that it is no longer necessary to consider the issue of damages for dismissal he presented to the Court.

2. Whether Hayton Ltd had to pay for Tuyisenge Pascal social security contributions [31] Counsel Uwirigaye Pierre Célestin and Counsel Ndayambaje Gilbert both assisting Tuyisenge Pascal, argue that Hayton Ltd should have registered him with the Rwanda Social Security Board from 09/09/2014, and paid for his contributions for the fourth quarter of the year 2014, 2015, 2016 and 2017 until the month of August. They state that the contributions should be calculated on the basic salary of 95,000 Frw x 15%, which is the rate appearing on the website of the Rwandan Social Security Board: www.imisanzu.rssb.rw , equivalent to 14,250 Frw per month, so they request to the Court to order to Hayton Ltd to register Uwizeyimana Naphtal in the Rwanda Social Security Board (RSSB), and pays for him the social security contributions that it did not pay. [32] Counsel Mugenzi Elie, assisting the Managing Director of Hayton Ltd., states that no social security contributions should have been paid for Tuyisenge Pascal because he has never been an employee of Hayton Ltd.

DETERMINATION OF THE COURT [33] Article 2, paragraph one of Law no 06/2003 of 22/03/2003 modifying and completing the Decree-Law of 22/08/1974 concerning organisation of social security contributions provides that this Law applies to the workers subjected to the provisions of labour regulations, non-retired political appointees and government statutory. And the second paragraph of the same article reads that are considered as salaried workers, workers referred to in paragraph one of this article, occasional or temporary workers, ...

4 See paragraph 7 of the judgment.

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[34] Article 47, pargraph 6 of Law n013/2009 of 27/05/2009 regulating labour in Rwanda which was into force when Tuyisenge Pascal worked for Hayton Ltd, stipulates that one of the employer's obligations is to affiliate workers to the social security scheme. [35] The aforementioned articles explicitly state that every worker must be subject to social security contributions, regardless of whether they work in the informal sector or part-time. [36] As explained above, Tuyisenge Pascal was a casual worker who worked for Hayton Ltd during the period described in paragraph 26 of this instant case, during which the social security contributions should be paid for him based on the provisions of paragraph 6 of article 47 mentioned above because it is the obligation of the employer. [37] Regarding to the statement made by Hayton Ltd that it should not have paid the social security contributions for Tuyisenge Pascal, based on the fact that he had never worked for them in the form of a contract, the Court finds it unfounded because every employee must be paid for social security contributions regardless of the way he/she works, and the Court bases this conclusion on the provisions of paragraph 3 of article 3 of Law n0 13/2009 of 27/05/2009 mentioned above. [38] Based on all the foregoing elucidations, the Court finds that Hayton Ltd should approach the Rwanda Social Security Board to calculate the contributions that should be paid for Tuyisenge Pascal throughout the time he worked for it on the basis of 1363 Frw per day as mentioned above.

3. Whether procedural and counsel fees should be awarded [39] Counsel Uwirigaye Pierre Célestin and Counsel Ndayambaje Gilbert both assisting Tuyisenge Pascal, assert that Hayton Ltd should pay him 3,000,000 Frw for counsel's fees and 300,000 Frw for procedural fees for all instances, all totalling to 3,300,000 Frw, to be reimbursed 60,000 Frw of deposited court fees in the previous Courts. [40] Counsel Mugenzi Elie, assisting Managing Director of Hayton Ltd, submits that Tuyisenge Pascal should not be compensated because he is the one who dragged himself into unnecessary lawsuits, but instead, Hayton Ltd is the one who should be awarded damages amounting to 2,000,000 Frw for being dragged into unnecessary lawsuits and 1,000,000 Frw for counsel fee. [41] Tuyisenge Pascal argues that he should not be liable to pay damages to Hayton Ltd because, through filing a lawsuit seeking justice, he was merely striving to reclaim the rights he had been unjustly denied.

DETERMINATION OF THE COURT [42] The Court finds that the damages related to the procedural and counsel fees claimed by Tuyisenge Pascal should be granted because it has been proved that there is injustice in the case he requested to be reviewed, and it is clear that he should have sought a lawyer from the previous courts until this instance. The Court finds that the amount of 3,300,000 Frw requested is excessive and there is no justification thereof, so in its discretion, the Court determines the damages relating to procedural and counsel fees as follows:  300,000 Frw in the Intermediate Court of Nyagatare;  300,000 Frw in the High Court, Rwamagana Chamber;  800,000 Frw in the Supreme Court.

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[43] The Court also finds that 60,000 Frw of court fee deposited by Tuyisenge Pascal in the previous courts must also be reimbursed by Hayton Ltd. III. DECISION OF THE COURT [44] Holds that Tuyisenge Pascal's application for the review on grounds of injustice of the judgment RSOCA 00011/2019/HC/RWG rendered by the High Court, Rwamagana Chamber, on 31/08/2022 has merit in parts; [45] Holds that the judgment under the review due to injustice is reversed on matters relating to the social security contributions Hayton Ltd has to pay for Tuyisenge Pascal; [46] Orders to Hayton Ltd to pay for Tuyisenge Pascal the social security contributions equal to the days he worked in 2016 and 2017 as stated above; [47] Orders to Hayton Ltd to pay to Tuyisenge Pascal counsel and procedural fees equal to:  300,000 Frw in the Intermediate Court of Nyagatare  300,000 Frw in the High Court, Rwamagana Chamber  800,000 Frw in the Supreme Court. [48] Orders to Hayton Ltd to reimburse to Tuyisenge Pascal 60,000 Frw for the court fees he deposited in the previous courts.