Ratified treaty¹

Termination of an employment contract for refusal to carry out certain duties and abandonment of work/ Allegations contested by the employee/ Difficulty of proof/ Application of ILO Convention No. 158 leading to assignment of the burden of proof to the employer/ Direct resolution of a dispute on the basis of international law

A person employed as a care provider questioned the termination of her contract of employment in the courts. According to the employer, the contract had been terminated by the fact that the claimant abandoned her position after refusing to carry out cleaning duties.  The worker stated that she had been dismissed verbally after having indicated to her employer that cleaning was not one of the duties stipulated in her employment contract. In the first instance, the witness accounts produced by both the claimant and the defendant were considered by the Court to be insufficient elements of proof to resolve the conflict. Despite that affirmation, the Court considered that termination of the employment contract was due to the refusal of the employee to perform duties stipulated in her contract.

After the worker challenged that decision, the Court of Appeal pointed out that the court of first instance had decided the dispute in spite of having pointed out the absence of proof concerning both the contents of the employment contract and the abandonment of her job.

The Court of Appeal recalled that both domestic legislation and Article 4 of ILO Convention No. 158 ratified by Ethiopia considered inadequate execution of duties by an employee as a valid reason for dismissal.

The Court of Appeal then took up the question of assigning the burden of proof in cases concerning a dismissal. Because Ethiopian labour legislation was silent on this issue, the Court referred to ILO Convention No. 158 and declared:

 “… the employer shall produce sufficient evidence to prove the two facts. The stand that the burden of proof falls on the employer is in line with the stipulation of article 9/2//a/ of the above mentioned Convention, which Ethiopia has ratified. Therefore, as the file shows that the respondent (the employer) has not produced evidence to show valid reasons for the termination of the contract of employment, the appellant must not be required to produce any evidence in support of her allegations.”

After having referred to ILO Convention No. 158 in order to assign the burden of proof of the merits of the dismissal to the employer and after having noted the absence of proof produced by the latter, the Court of Appeal of Addis Ababa declared the dismissal illegal.

¹ ILO Convention on Termination of Employment, 1982 (No. 158).