By DMLF Team
Arbitration and Conciliation Working Procedure Proclamation No 1237/2021 done as of April 2021 encompasses the procedures for recognition and enforcement of arbitral awards and the court that has jurisdiction to do so. In this brief article we shall look into the procedures of recognition and enforcement of foreign arbitral awards and the assigned court to recognize and enforce foreign arbitral awards.
There are two ways of recognizing and enforcing foreign arbitral awards. The first is when a foreign arbitral award falls under international treaties ratified by Ethiopia. The award that falls under the ratified treaty shall be recognized and enforced based on the procedures indicated in such treaty.
The second way of recognition and enforcement of foreign arbitral awards is as per Article 53(2) of the Proclamation. The Proclamation encompasses 6 procedures an Ethiopian court has to evaluate before recognizing or enforcing foreign arbitral awards. These are:
The court that has the jurisdiction to accept and hear recognition and enforcement of foreign arbitral awards is the Federal High Court. The jurisdiction of the Federal High Court is for both cases of where the foreign arbitral award falls under international treaties ratified by Ethiopia or in ordinary circumstances whereby recognition and enforcement is requested.
To conclude, foreign arbitral awards presented for recognition and enforcement in Ethiopia shall be presented at the Federal High Court. The court shall ascertain that the foreign arbitral award is in line with the requirements of the Ethiopian law before recognizing or enforcing such awards.
For your arbitration related inquiries you may contact us at info@dmethiolawyers.com
By Mahlet Mesganaw, Partner at DMLF
Annual leave is a minimum working condition that cannot be limited by work rules or collective agreement. The FDRE Constitution on Article 42(2) gave recognition to annual leave. Workers have the right to reasonable limitations of working hours, to rest, to leisure, to periodic leave with pay, to remuneration for public holidays as well as a healthy and safe work environment. Similarly, the governing labour proclamation at this time for private organization employees is Labour Proclamation No 1156/2019. Articles 76-80 of the Labour Proclamation cover annual leave. In this article what annual leave is all about, dividing and interruption of annual leave, carry over, and payment of wage in lieu of annual leave shall be discussed briefly.
Amount of Annual Leave and Related Rights
According to Labour Proclamation 1156/2019, the amount of annual leave for the first year of service shall be uninterrupted 16(Sixteen) working days. Then for every additional two years of service, one working day annual leave is added. Therefore, for the 1st year of service, 16 working days, for the 2nd year of service, 16 working days, for the 3rd year of service 17 working days, for the 4th year of service 17 working days, for the 5th year of service 18 working days, and it continues like this.
Annual leave is taken with a full salary. The wage a worker receives during his annual leave shall be equal to what he would have received if he had continued to work. What about allowance, bonus, commission or other incentives including service charges from customers? Article 53(2) of the Labour Proclamation provides lists of payments that are excluded from being considered as wages: a) Over-time pay b) Amount received by way of per-diems, hardship allowances, transport allowance, relocation expenses, and similar allowance payable to the worker on the occasion of travel or change of his residence; c) Bonus d) Commission e) Other incentives paid for additional work results and f) Service charge received from customers. Thus the law seems to restrict the employee to receive only his wage/salary and not those listed items that are by law from the definition of wages.
Who is entitled to get annual leave: of a worker under probation or a worker that has completed his probation? For the purpose of annual leave, the labour law doesn’t differentiate between a worker within probation period to a worker that completed his probation period (60 working days). In contrast to annual leave, sick leave is available only for a worker who has completed his probation period. Where a worker, after having completed his probation, is rendered incapable of working due to sickness other than employment injury, he shall be entitled to a sick leave. However, for annual leave, such a distinction has not been made. Thus there is no law that prohibits a worker who is in his probation period to request annual leave and be granted one. The law is silent as to enabling the employer to deduct annual leave balance from a worker that terminated his employment contract before expiry of the probation period or terminated by the employer while under probation.
The employer is granted the right to come up with a schedule of time in which employees can take annual leave. This right of the employer is based upon two conditions namely the interest of the employee and the need for maintaining the normal operation of the undertaking.
Dividing Annual Leave
Dividing annual leave is possible only in two parts. To apportion annual leave in to two parts, the agreement of the worker and the employer is required. This means annual leave cannot be taken each month for instance 2 days per month. It is the position of the labour law that annual leave be taken in bulk. Annual leave has to be taken consecutively for the full amount or if the worker and the employer agrees, the annual leave can be divided into two equal or unequal parts. Thus there is no flexibility of annual leave to be apportioned multiple times save only two parts.
Interruption of Annual Leave
When a worker on annual leave falls sick and requires medical treatment as an inpatient, his annual leave shall be suspended and his sick leave shall commence. The Labour Proclamation on Article 79(5) restricts sick leave as a reason for suspension of annual leave only to inpatients who happen to be admitted to hospitals. An employee who could present a valid medical certificate attesting he/she needs rest by a duly recognized medical institution without being an inpatient, may not enjoy the suspension of the annual leave. On the other hand, the law is silent as to indicate public holidays falling on the annual leave resulting in suspension of the annual leave.
Carry Over
Annual leave may be postponed for two reasons. One is when the worker requests and the employer agrees. Second is when the employer has to postpone due to operational requirements of the business. However, the Labour Proclamation on Article 79(4) allows postponement for not more than two years. In other words, annual leave postponed for two years has to be taken and put into use in full and total before the third year commences. The understanding circulating with the public that the annual leave not taken above two years expires, is legally unwarranted. The law is clear in the manner that annual leave cannot be taken in wages but has to be taken as a leave, even if there is an agreement between an employee and employer. An agreement by a worker to waive in any manner his right to annual leave shall be null and void. Payment of wages in lieu of annual leave is allowed in restricted circumstances which we will see next. Annual leave not taken for two years is not included as exceptional circumstances that are allowed by law to be paid in wages in lieu of the leave.
Payment of Wages in Lieu of Annual Leave
In principle it is prohibited to pay wages in lieu of annual leave. The two exceptions recognized by the Labour Proclamation are termination of employment and recall of employees on leave. Where a contract of employment is terminated, then the employee has the right to receive pay for the annual leave not taken. The other scenario is when a worker who is on annual leave is recalled back to work. As per Article 80(2) the worker who is recalled from leave shall be entitled to a payment covering the reminder of his leave excluding the time lost for the trip. On recall of employees on leave, the law could have granted postponement of the leave to another time and be used as a leave rather than exchanging the leave for payment. The principle the law propounded has been that leave has to be taken and should not be substituted by payment. In non-conformity to this principle, the law allowed the employer to pay in cash the remainder of the annual leave of the worker who has been recalled while on annual leave.
In conclusion the main objective of annual leave is to give an employee the right to rest his body and mind from work and be back to work more rested and energetic. The employer has to respect this minimum working condition of the employee to enjoy leave with pay. That’s why the labour law sets the amount of time annual leave has to take and the related rights of the employee on leave. The law attempts to strike the balance between the mandatory exercise of leave for the employee with the business needs of the undertaking. Thus the employer is given the right to frame a schedule for the employees to take annual leave and in dire circumstances where the undertaking is facing unforeseen hurdles, to recall an employee on leave.
For labour related inquiries, you may contact us at info@dmethiolawyers.com
By Dagnachew Tesfaye, Managing Partner at DMLF
A person less than 18 years of age( including conceived child) and under guardianship can be adopted. The parties to the adoption agreement are the adopter and the guardian of the adopted child. The guardians of the adopted child being his both biological parents, can the child still be adopted? The answer is found in the Revised Family Code Proclamation No 213/2000 and Directive No 48/2020 on Foster Care and Domestic Adoption Services (Directive).
The Revised Family Proclamation on Article 191(1) requires the consent of both the father and mother of the adopted child to be given where both biological parents are alive and known. Then it is up to the court to decide whether or not the adoption is for the best interest of the child. The considerations the court shall take into account include the opinion of the child himself, the capability of the adopter to raise and take care of the child and the availability of information which will enable the court to know that the adopter will handle the adopted child as his own child and will not abuse him.
On the other hand the Directive on Article 28 state that children that have both parents who are eligible for adoption in the following conditions : a) If both parents are living with terminal illness provided that this is medically proven; and b) Upon the submission of a legal evidence issued from the relevant government body that confirms they are economically inefficient to properly care for the child and due to the failure to observe the safety of the child in addition to other mandatory causes. Therefore, the above two conditions have to be fulfilled and evidence has to be submitted in order for the adoption of a child with both parents.
To sum up, a child that has a father and a mother can be given in adoption to an adopter as long as either the biological parents have provided proof that they are affected by terminal illness or the biological parents have no sufficient economic means to raise their child in a proper way. The court shall ascertain the existence of the conditions from the side of the adoption givers and also confirm that the adopter is also capable of raising the child in a manner that enhances the adopted child’s life. Hence the answer to the question is YES, a child that has a father and mother can still be adopted.
For your adoption related inquiries you may contact us at info@dmethiolawyers.com
By DMLF Team
A claimant or judgment creditor in a civil case can request for the opposite party in the suit not to leave Ethiopia either before the case is resolved or executed. The request for injunctive order for travel ban has to be made with an oath and affidavit that there is an imminent danger that the defendant or counter defendant or judgment debtor may abscond the country making the claimant or judgment creditor to lose money.
This request has to be made in accordance with Ethiopian Civil Code Article 147 entitled security for appearance. Where the court is satisfied that the defendant or a plaintiff against whom a counter claim has been lodged is about to leave the jurisdiction of Ethiopia, the court may issue a warrant on arrest of the defendant and bring him before court to show cause why he should not furnish security for his appearance. The law goes beyond travel ban and order the arrest of the defendant or debtors.
If the request is for a travel ban of the defendant or debtor, then the claimants has to request the judge to order the immigration office to execute the order.
The request for travel ban or for that matter arrests has to be made by an affidavit under oath. The request has to satisfy the court that there is a reasonable probability that can result in obstruction or delayance in the execution of any decree that may be passed against the defendant in the suit.
The request for travel ban or arrest can be requested at any stage of the suit. However if the suit is regarding immovable property, security of appearance under Article 147 of the Civil Procedure Code can not be requested.
The claimant is not required by law to furnish a security or guarantee to compensate the defendant or judgment debtor for unwarranted injunction.
For any civil case travel ban inquiries, you may contact us at info @dmethiolawyers.com
