Dablo Law Firm — Legal Update
Background
Article 27(1)(b) of the Labour Proclamation (Proclamation No. 1156/2019) permits an employer to terminate a contract of employment without notice when an employee is absent from work. The provision addresses two distinct scenarios: (i) non-consecutive absences totalling five days within a six-month period, preceded by written warnings; and (ii) absence for five or more consecutive working days outside of lawful leave or rest periods. Whether scenario (ii) consecutive five-day absence also requires a prior written warning has been a source of significant interpretive disagreement among Ethiopian courts.
Conflicting binding cassation decisions sharpened the controversy. In Cassation File No. 199956 and 229194, the Federal Supreme Court Cassation Bench held that no written warning is required before terminating for five consecutive days of absence. In contrast, Cassation File No. 249795 (dated Hamle 30, 2016 E.C.) held that a written warning must be issued for each day of absence, even when the absence is consecutive. The irreconcilable conflict necessitated a seven-judge panel under Article 26(2) of the Federal Courts Proclamation No. 1234/2013.
The Ruling — Etol General Contractor v. W/rt. Betelhem Ayalew Tenaw (File No. 271726)
The Federal Supreme Court seven-judge Cassation Bench, by majority vote, resolved the dispute as follows:
- The binding interpretation in File No. 249795 (and similar rulings requiring a written warning for consecutive absences) is overruled and replaced by this decision.
- Article 27(1)(b) is interpreted to mean that when an employee is absent for five or more consecutive working days — outside the leaves and rest periods recognised by the Proclamation — the employer may terminate the employment contract without notice and without issuing a prior written warning (Warning in Writing).
The Court's Reasoning
The Bench distinguished between two limbs of Article 27(1)(b). The written warning requirement ("Warning in Writing") applies only to non-consecutive absences: where an employee is warned in writing yet accumulates a total of five days' absence within six months, the employer may terminate without notice. For consecutive five-day absences, no such precondition exists in the provision.
Practical impossibility. The Court reasoned that a written warning is, by nature, corrective it is given to an employee who has returned to work so that the misconduct is not repeated. When a worker is still absent and has not returned, the employer has no practical opportunity to deliver such a warning, and it would be illogical to require one for an employee who is continuing the very act of misconduct.
Legislative history. The Bench obtained the parliamentary debate records (hateta zemiknyat) for the bill that became Proclamation No. 1156/2019. Those records reveal that the amendment to Article 27(1)(b) relative to the predecessor Proclamation No. 377/2003 was motivated not by a desire to impose additional procedural requirements for consecutive absences, but by the need to close a loophole: employees had been gaming the old rule by absenting themselves for up to four consecutive days and returning on the fifth, thereby repeatedly breaking the consecutive count while undermining workplace discipline. The amendment introduced the "five days within six months with written warnings" limb to address non-consecutive absences. It did not add a warning requirement for consecutive absences.
Comparison with prior law. Under the repealed Proclamation No. 377/2003, Article 27(1)(b) permitted termination for "absence from work without good cause for a period of five consecutive working days" with no written-warning prerequisite whatsoever. The Bench found that the new Proclamation did not intend to weaken this position for consecutive absences.
Alignment with legislative purpose. The Cassation Bench concluded that the positions taken in earlier File Nos. 199956 and 229194 faithfully reflected the legislature's intent, whereas the contrary position in File No. 249795 did not.
Dissenting Opinion
One judge dissented, arguing that the written warning requirement should extend to consecutive absences as well, and that the employee's good cause (e.g., medical emergency, transport disruption) should be evaluated before termination is deemed lawful. The dissent also invoked interpretive principles such as protection of the weaker party and purposive interpretation, contending that the majority's reading removes a safeguard the legislature intended to retain.
Practical Implications
- For employers: This ruling removes a procedural ambiguity that previously exposed employers to unlawful-termination claims even when an employee had been absent for weeks. Employers may now lawfully terminate an employment contract without issuing a prior written warning once an employee has been absent for five consecutive working days, provided the absence falls outside the Proclamation's recognised rest periods and leaves. Employers should, however, carefully document the dates of absence and verify that no lawful leave applies. Issuing the written notice of termination specifying the reason and the effective date (required by Article 27(2) of the Proclamation) remains a separate obligation.
- For employees: Unauthorised consecutive absences of five working days or more carry immediate dismissal consequences. Employees facing genuine emergencies should notify their employer at the earliest opportunity and secure any available leave entitlement in advance. An employee who can demonstrate a valid reason for the absence may still challenge the termination's lawfulness, although the majority opinion did not address the good cause question directly.
Key Takeaways
- No written warning is required before terminating an employee who has been absent without leave for five or more consecutive working days.
- Written warnings remain mandatory for the separate scenario of non-consecutive absences totalling five days within a six-month period.
- Cassation File No. 249795 is overruled; the binding interpretations in File Nos. 199956 and 229194 are reaffirmed.
- The ruling was made by majority vote; one judge dissented on the warning requirement and the evaluation of good cause.
- Employers should still document absences meticulously and confirm that no lawful leave entitlement covers the period, to withstand any potential legal challenge.
This update is for general informational purposes only and does not constitute legal advice. For guidance on specific employment matters, please contact DABLO Law Firm.
