UWIZEYIMANA v. GOVERNMENT OF RWANDA (MINIRENA)

# UWIZEYIMANA v. GOVERNMENT OF RWANDA (MINIRENA)

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2016-01-15 - Case/document no.: RADA 0007/13/CS - Collection: Supreme Court

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UWIZEYIMANA v. GOVERNMENT OF RWANDA (MINIRENA) [Rwanda SUPREME COURT – RADA 0007/13/CS (Mugenzi, P.J., Gatete na Mutashya, J.) January 15, 2016] Labour law – Grave fault – Its regarded as a grave fault for the employee to make a critical decision which contradicts the one made by his employer in without seeking his approval – Law nº 13/2009 of 27/05/2009 regulating labour, article 32. Labour law – Unfair dismissal – dismissing an employee without the observance of the procedures established by law is unfair dismissal – Law nº 13/2009 of 27/05/2009 regulating labour, article 1. Labour law – Employment certificate – It’s the obligation of the employer to give the employee the employment certificate at the end of the employment contract even though the employee did not demand it – Law nº 13/2009 of 27/05/2009 regulating labour 38. Facts: MINIRENA and Uwizeyimana concluded a fixed term employment contract which had to begin on 24/02/2009 and ends on 31/5/2011, unfortunately the contract was terminated by MINIRENA before four mouth to its end because Uwizeyimana committed a grave. Uwizeyimana sued in the High Court claiming that he was not informed of that grave fault within 48 hours and he was not given the employment certificate.. In its ruling the Court held that he was dismissed for committing a grave fault (faute lourde), and he did not request for the employment certificate, it awarded him various damages. Uwizeyimana appealed in the Supreme Court claiming that his employer accussed him of ghost workers and he was not the one responsible for the recruitment of the workers ,and the reason he made the decision to buy the basins was because on the tree planting day they had visitors so he wanted every thing to look nice, and that he was unfairly dismissed becaused the 48 hours provided by the law was not respected. In its defence the Government of Rwanda argued that Uwizeyimana committed many faults to the extent that his superiors could not tolerate him any further, like the ghost workers on the pay list which he signed without verifying is it is consistence with the attendance list, another one is that he altered the decision of his employer in the meeting of carrying the trees to be planted using baskets brought from the population and he on his own he decided to buy the basins well knowing that such requires a public tender, it adds on that even though the period of 48 hours was not respected it did not cause him any loss and that do not erase the fact that he committed a grave fault. Held: Its regarded as a grave fault for the employee to make a critical decision which contradicts the one made by his employer in without seeking his approval Uwizeyimana had the authority to supervise the employees under him whenever they commit faults and he failed to do so, therefore he is liable because it was in his dairy attribution

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dismissing an employee without the observance of the procedures established by law is unfair dismissal. It’s the obligation of the employer to give the employee the employment certificate at the end of the employment contract even though the employee did not demand it. Some of the grounds of appeal has merit;. The Government of Rwanda (MINIRENA) must pay Uwizeyimana damages in addition to the ones awarded by the High Court. The rulings of judgment RAD 0150/11/HC/KIG is reversed in some parts; Court fees on the appellant. Statutes and statutory instruments referred to: Organic Law N° 51/2008 of 09/09/2008determining the organisation, functioning and jurisdiction of Courts, article 9. Law nº 13/2009 of 27/05/2009 relating to labour, article 1,28,32,38. No cases referred to.

Judgment I. BACKGROUND OF THE CASE [1] This case begun in the High Court (RAD 0150/11/HC/KIG), UWIZEYIMANA claiming that he entered into a fixed term employment contract with the Government of Rwanda (MINIRENA), starting from 24/02/2009 untill 31/5/201, he alleges that his employer terminated it on 26/01/2011 remaining four month (4) that contract to come to an end, for committing a grave fault (faute lourde) but without noticing within 48 hours of that grave fault. [2] In its rulings, the Court found merit in some of the grounds of the claim lodged by Uwizeyimana, it found that he was dismissed for committing a grave fault (faute lourde)1, that he did not request for the employment certificate therefore he cannot be awarded damages for that,it ordered that he be paid 281.487 Frw in damages for the days of leave he worked, and 60.000Frw for the mission allowance he was not paid. 1Employing Employers unknown to the project and planting trees which were not scheduled for in his personal interest .

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[3] UWIZEYIMANA appealed in the Supreme Court (RDA 0007/13/CS) claiming that there is no concrete evidence based on by the judge to hold that he committed a grave fault, and he did not value his explanation. [4] The case was heard in public on 01/12/2015, UWIZEYIMANA assisted by Counsel NSANZIMFURA Eugène, the Government of Rwanda (Minirena) represented by State Attorney UMWALI Claire. II. ANALYSIS OF THE LEGAL. Whether Kumenya niba hari ikosa rikomeye (faute lourde) ryatuma UWIZEYIMANA yirukanwa ku kazi. [5] UWIZEYIMANA avers that his employer dismissed him on the accusation that he commited a grave fault of failing to fulfil his duties and moreover those duties are not included in his attributions because he was a Supervisor , he produced to the Court a document proving that he was not responsible for the recruitment of employees but it this regarded that. He explains that the Court based on alot of letter written to him and besides he received only one which he also gave the explainations for and dismissed when he had spent a month sick of which his employer was aware of. [6] Regarding the basins”2 he bought when it had been decided that the baskets are the one to be brought, he accepts that indeed it happened but explains that he made that decision due to the fact that they had visitors on the Tree planting day so he wanted everything to look nice besides he consulted the District administration and they consented. [7] Regarding the attendance cards which he did not follow up , he claims that it was not in his attributions but he wrote to those responsible demanding to be availed the reason why they donot make a report on it. [8] With regard to the young trees which were not related to the project activities, he explains that it was done in his absentia because he was sick, when he resumed work he talked about it with the Mayor of the District about that issue. [9] His counsel NSANZIMFURA argue that the meeting to solve the issue of the ghost employees on the list convened on 12/12/2010, NGIRUMUGENGA Jean Marie Pierre was the one who used to make that list which is proved by the warning letter written to him by the District, on that he is of the opinion that it was injustice for Uwizeyimana to be dismissed. Regarding the basins he brought contrary to the decision of the meeting he finds that it has no effect unless they proved that the money set aside for that activity was embezzled or they were at a higher price compared to the market price. [10] The State Attorney UMWALI adduce that UWIZEYIMANA committed various faults to the extent that his employers could not toleratehim any further. She argues that it came to light that there was gihost workers on the payment roll which was signed by UWIZEYIMANA without 2 Had to be used to carry the young trees which had to be planted by the population.

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verifying it it matches with the attendance list”. She further argue that even though he was not responsible for the recruitment of the workers that would not prevent him to crosscheck that the indeed the work was done by those he is going to pay. [11] She goes on to state that another fault was to alter the decision of the meeting to carry the young trees in the basket brought from the population and on his own decided to buy the basins well knowing that it should first go through the public tender. [12] She avers further that he refused to distribute the attendance card and that was his manoeuvre to make the ghost workers appear as real workers [13] Regarding the plants found in the nursery bed which were not programmed for , she finds that the arguments of Uwizeyimana that he was also took by surprise is of no merit because he never informed his superiors in the project to the extent that it appeared after the inpectiction ,the fact he doesn’t deny. THE VIEW OF THE COURT. [14] The Court finds that among the faults indicated by the High Court , Uwizeyimana only accepts the one regarding the one of making a decision to buy the basins instead of buying baskets as had agreed in the meeting, and he refutes that he committed the other faults that is his basis for his appeal arguing that there is no evidence based upon by the court proving that he committed a grave (faute lourde), and he should not be dismissed. [15] The Court finds that the fault which Uwizeyimana accepted that he committed is a grave fault because he made a decision contradicting the one which was made by his employer in the meeting without consulting him and he is aware how the government resources are utilised. His defence that he was authorised by the District has no merit when it is not authorised by his employer. [16] Regarding other faults mentioned, the Court finds that the fact that UWIZEYIMANA doesnot dispute that he had the authority to supervise the employees under him when they commit such faults and he failed to do so, he has to be liable because it was in his dairy attribution as stipulated by the contract he concluded with the Government of Rwanda (MINIRENA) on 10/03/2009.3 Therefore for him not supervising so that he can find out that there are ghost workers who were not supposed to be paid or to find out that there are other trees in the nursery bed which are not for the project and also the ones of not issuing the workers with the mentioned attendance cards so that so that the real workers to be paid by the project to be known , there are grave faults of which Uwizeyimana could be dismissed without notice in accordance to article 32 paragraph 2 of the Law no 13/2009 of 27/05/2009 regulating labour . The relief claimed by Uwizeyimana for dismissal in disregard of 48 hours. 3Art. 3 : NATURE DU TRAVAIL L’employé exercera, sous l’autorité du Ministère des Ressources Naturelles, la fonction de superviseur de district affecté dans la Province du Nord et chargé de superviser les activités du Programme d’Appui à la Reforestation au Rwanda dans les districts de Musanze et Burera

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[17] UWIZEYIMANA claims that he was unfairly dismissed because the period of 48 hours prescribed by the law were disregarded. [18] His Counsel NSANZIMFURA adduce that the legislator provided for the time limit of 48 hours in case of grave fault, therefore he finds that its unlawfully for the Government of Rwanda not a bidding to that period, he prays that Uwizeyimana be awarded relief in damages equivalent to his salary (equivalent to 582,386Frw per month ) of three mouth. [19] State attorney UMWARI argue that indeed paragraph 2 of article 28 of the Law no 13/2009 of 27/05/2009 mentioned above providing for 48 hours was not respected but that does not erase the faults committed by UWIZEYIMANA, and he did not incur any loss. THE VIEW OF THE COURT [20] The Court finds that the legislator in article one par. 21 of the Law no 13/2009 of 27/05/2009 regulating labour in Rwanda that dismissing an employee “without the observance of the procedures established by law ”its also unfair dismissal4. [21] Article 28, paragraph 2 of the Law no 13/2009 of 27/05/2009 mentioned above provides that “ the contract of employment for a determined period or for a well defined work can be terminated before the fixed term in case of gross negligence or agreement between the parties. Where the contract for a determined period is terminated due to gross negligence, the party causing the contract to be terminated shall notify the same to the other party within fourty eight (48) hours.”. [22] And again article 33 of that Law provides that “any unlawful termination of contract may result in damages. Damages paid to the unlawfully dismissed worker cannot go below his/her three months salary but they cannot exceed the six (6) - month salary”. [23] In accordance to the articles mentioned above the Court finds that the Government of Rwanda must give Uwizeyimana relief in damages equivalent to the three month salary (net salary)that is 1.050.438.5 The relief in damages claimed by UWIZEYIMANA for not being given the employment certificate. [24] UWIZEYIMANA adduce that the judge held that he did not request for the employment certificate and the employer refused to give it to him, but he finds that the employer has the obligation to issue it, he rilies this arguement on the case law of R SOC AA 0027/11/CS rendered by this Court. [25] His counsel NSANZIMFURA argue that after his dismissal, UWIZEYIMANA was not given the employment certificate which contradicts article 38 of the Law no 13/2009 of 27/05/2009 4 In French and English its licenciement abusif / unfair dismissal 5 The salary he is paid is indicated in the employment contract of 10/03/2009 it is 350.146 Frw

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cited above,although UWIZEYIMANA requested for it in writing, the reason why the employer has to give relief for it. He explains that since 26/01/2011 when he was dismissed up to now , he was not able to find another job due to not having that employment certificate, he claims for the relief in damages equivalent to his monthly salary of 582,386Frw multiplied by the time he has spent without working, which will total to 26,979,000Frw. [26] State attorney UMWARI acknowledges that UWIZEYIMANA was not given the employment certificate at the time he was dismissed. THE VIEW OF THE COURT. [27] Article 38 of the Law nº 13/2009 of 27/05/2009 regulating labour provides that “when the contract of employment expires, the employer must establish and put at the disposal of the worker together with his/her final dues a certificate of employment, showing exclusively the date of entry and exit and the nature of the employment or occupied posts”. In accordance to the provisions of that article , the Court finds that the employer has the obligation to issue that certificate even if UWIZEYIMANA do not request for it, the Government of Rwanda (MINIRENA) having acted in accordance with that article is the reason it has to pay damages as provided for in paragraph 2 of article 38 that “the employer, who refuses to deliver this certificate of employment or omits one of the elements stipulated in the preceeding paragraph or who delays to deliver this certificate, may be required to pay damages determined by the competent court ”, The Court finds that the Government of Rwanda (MINIRENA) must pay UWIZEYIMANA the damages equivalent to his monthly salary amounting to 350,146Frw. Other reliefs claimed by UWIZEYIMANA. [28] UWIZEYIMANA claims for the relief regarding communication and lodging equal to 1,254,000Frw6. [29] State attorney UMWALI argue that those reliefs should not be awarded to him when he was dismissed due to a grave fault. [30] The court finds that in accordance to article 9 of the Law N° 21/2012 of 14/06/2012 relating to the civil, commercial, labour and administrative procedure,the relief requested by UWIZEYIMANA cannot be awarded to him because he doesn’t prove them. III. DECISION OF THE COURT [31] Holds that some of the grounds of appeal of UWIZEYIMANA Jean Bosco has merit ; [32] Orders the Government of Rwanda (MINIRENA) to pay UWIZEYIMANA Jean Bosco damages amounting to frw 1.400.584, in addition to to the ones awarded by the High Court , all amounting to 1,742,071Frw; 6 He explains them in his appeal submissions.

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[33] Declares that the rulings of judgment RAD 0150/11/HC/KIG is reversed in some parts ; [34] Orders UWIZEYIMANA Jean Bosco to pay the court fees equal to 50,000Frw.