Cassation Court 

 

Civil and Commercial Circuit – No. 88/2009

Session Date: 8 December 2009

Appeal by Cassation No. 88 of 2009 – civil appeal by cassation
 

) 1, 3 ( Contract “contract of employment” – employment “salary: among its ancillaries: end of service indemnity” “termination of an employment contract of an indefinite term” –judgment “its reasoning: defect in argumentation: error in the application of the law”.

) 1 ( Termination of the employment contract of an indefinite term without observing the legally prescribed grace period – its effect – that he who terminates such contract be ordered to pay compensation to the other party equal to the employee’s salary, not exceeding payment in lieu of notice – S. 49 of the Labour Law No 14 of 2004.

) 2 ( Cassation “reasons for appeal by cassation: what is not valid as a reason for such appeal: contention that is shorn of evidence” – claim “defence therein”.

Contending against a judgment using a plea for which the litigant fails to produce the evidence – a contention without evidence – inadmissible.

) 3 ( Extension of employment relationship even though with consecutive contracts – being considered as a single contract – its effect – that the employee shall not be deprived of any privilege or benefit acquired from the employer regarding any period during his continued service – S. 17) 9 ( of the Labour Law No 3 of 1962 which applies to the facts of the dispute – that the judgment appealed against by cassation departs from such jurisprudence – an error in the application of the law.

1- It is established jurisprudence of this Court that Section 49 of Law No 14 of 2004 on the Labour Law provides that “where the contract of employment is one of indefinite term, any party may terminate such contract without stating the reasons, in which case he party intending to terminate such contract shall notify the other party in writing as follows: 1- …, 2- …. If such party terminates the contract without observing such periods the party terminating the contract shall be obliged to pay to the other party material compensation being the employee’s salary for the notice period, or what remains of such period”, and it means that the legislature has specified the obligations of each party of the employment contract towards the other party in the case of termination of a contract with an indefinite term, without observing the prescribed grace period, without exceeding an amount in lieu of notice.

2- It is established jurisprudence of this Court that contention against a judgment, which is based on a plea for which the opposing litigant fails to provide evidence, becomes a contention without evidence which is inadmissible.

It is established jurisprudence of this Court that section 17) 9 ( of Law No 3 of 1962, which applies to this part of the Appellant’s term of employment, provides that “in the case of renewal of the contract, the renewal period shall be considered an extension of the previous period, and the service of the employee shall be reckoned as from the date he commenced service with the employer for the first time for the purposes of any benefit or privilege available for him out of the length of his service”, and it means that the extension of the employment relationship, even if by virtue of consecutive contracts, shall be considered in reality as a single employment contract, the continuation of which shall not deprive the employee of any privilege or benefit acquired from the employer regarding any period in his continued term of service. It has been established, with no contention from the parties, that the Appellant was employed with the Respondent Company since 1981 up to the termination of his contract on 16.7.2006. The Company paid him the end of service indemnity for the period from 1981 to 31.12.1993, then stopped paying the same as of 1.1.1994. The Appellant thereby acquired a right in such indemnity of which he should not be deprived as regards any subsequent period of service, by action or declaration, in any future contract resulting in a continued term of service. Where the judgment appealed against by cassation departs from such jurisprudence, it becomes defective.

 

The Court
 

Having reviewed the documents, and having heard the report read out by the Judge-Rapporteur, and heard the submissions, and after the deliberations;

Whereas the appeal by cassation has satisfied its formalities;
 

The facts, as revealed in the judgment appealed by cassation and other documents, may be summed up as follows. The Appellant brought the claim No 55/2007 – labour – general – applying for a judgment ordering the Respondent, in his capacity as receiver for ) … ( Company, to pay to him the amount of 205, 115 Riyals being employment dues, and to deliver a certificate of experience for the full period of service with such Company in addition to compensation. He stated that he served with the company represented by the Respondent since 1981. On 19.7.2006 the Company issued a decision dismissing him without notice, and without the payment of his prescribed dues, prompting him to bring the claim. The court appointed an expert, who submitted his report. It then issued a judgment ordering the Respondent to pay to the Appellant the amount of 76,523 Riyals, and grant him a certificate of experience, and it rejected all other applications. The Appellant lodged against the said judgment an appeal No 742/2008. The Respondent likewise lodged an appeal, No 769/2008. The court combined the two appeals and issued on 27.4.2009 a judgment dismissing the first appeal, and altering the appealed judgment by reducing the judgment amount to 55,483 Riyals, in the case of the second appeal, and confirming the judgment otherwise. The Appellant lodged against the said judgment an appeal by cassation, which was presented before this Court, at the deliberations chamber, where it fixed a session for its consideration. This appeal by cassation is based on one reason composed of three aspects. Under the third aspect, the Appellant contends against the judgment appealed against that it involved insufficient reasoning and bad argumentation. He states that the said judgment confirmed the first instance judgment in so far as it reversed unfair dismissal in relation to the termination of the employment relationship between the Appellant and the Respondent Company, based on considering the contract as one for indefinite term. It referred the reason for such termination to the Appellant’s negligence, lack of professionalism and complaints received against him from clients. The court should have, in such case, examine the legality of the contract termination, but the judgment appealed against went short of so doing, which renders such judgment defective and worthy of cassation.
 

This contention is inappropriate. It is established jurisprudence of this Court that Section 49 of Law No 14 of 2004 on the Labour Law provides that “where the contract of employment is one of indefinite term, any party may terminate such contract without stating the reasons, in which case he party intending to terminate such contract shall notify the other party in writing as follows: 1- …, 2- …. If such party terminates the contract without observing such periods the party terminating the contract shall be obliged to pay to the other party material compensation being the employee’s salary for the notice period, or what remains of such period”, and it means that the legislature has specified the obligations of each party of the employment contract towards the other party in the case of termination of a contract with an indefinite term, without observing the prescribed grace period, without exceeding an amount in lieu of notice.

Contention against a judgment, which is based on a plea for which the opposing litigant fails to provide evidence, becomes a contention without evidence which is inadmissible. The first instance judgment, confirmed by the judgment appealed against by cassation, has rejected the compensation application made by the Appellant for the termination by the Respondent of his employment contract, on the basis that it was a contract for indefinite term, which the parties may unilaterally terminate according to the law. The documents include no evidence in support of the Appellant’s plea that the Respondent terminated his contract as a result of his negligence or lack of work professionalism. Accordingly, contention against the judgment in this connection becomes related to a plea shorn of evidence, which is thereby inadmissible.

The Appellant contends against the judgment appealed against by cassation, under the remaining aspects, that it erred in the application of the law. He states that the said judgment quashed the first instance judgment in connection to its assessment of the end of service indemnity for the period from 1.1.1994 to 15.5.2005, on the basis that his employment contract did not include agreement thereon, whereby such indemnity would not be payable except by application of the Law No 3 of 1962. This was so although it has been evident, from the expert’s report, that the Respondent used to pay such indemnity to him since his appointment in 1981, until stopping such payment on 1.1.1994. This is considered as agreement on his right to such indemnity, of which he should not be deprived. If the judgment appealed against departs from such jurisprudence, it would be defective and worthy of cassation.

This contention is appropriate. It is established jurisprudence of this Court that section 17) 9 ( of Law No 3 of 1962, which applies to this part of the Appellant’s term of employment, provides that “in the case of renewal of the contract, the renewal period shall be considered an extension of the previous period, and the service of the employee shall be reckoned as from the date he commenced service with the employer for the first time for the purposes of any benefit or privilege available for him out of the length of his service”, and it means that the extension of the employment relationship, even if by virtue of consecutive contracts, shall be considered in reality as a single employment contract, the continuation of which shall not deprive the employee of any privilege or benefit acquired from the employer regarding any period in his continued term of service. It has been established, with no contention from the parties, that the Appellant was employed with the Respondent Company since 1981 up to the termination of his contract on 16.7.2006. The Company paid him the end of service indemnity for the period from 1981 to 31.12.1993, and then stopped paying the same as of 1.1.1994. The Appellant thereby acquired a right in such indemnity of which he should not be deprived as regards any subsequent period of service, by action or declaration, in any future contract resulting in a continued term of service. Where the judgment appealed against by cassation departs from such jurisprudence, it becomes defective, and worthy of cassation in this connection.
 

Since the matter is ripe for settlement, and based on the aforesaid, and because the judgment appealed against has obliged the Respondent Company to pay end of service indemnity for the period from 1981 until the termination of his contract on 9.7.2006, it becomes in accord with proper law, and it should be confirmed in this connection.