Cassation
No. 930 of 2019 (Administrative)
Panel:
Chief Judge/Mohammed Abdul Rahman Al Jarrah - Head of the Chamber - and
Counsellors/ Judges/Dr. Ahmed Al Sayegh and Dr. Ahmed Yamin.
Restructuring.
Administrative Decision. Administrative body. Job position
“abolition”. Law “its application”. Judgment
“flawed substantiation”. Reversal “accepted
grounds”.
Abolishing
a job position in the organisational structure of a public utility means to
permanently write off the job with all its duties and responsibilities from the
tasks of the organisation within which the job in the government entity is
included; unless it is decided that such position and duties are to be
transferred to another organisation in the same/or to a different government
entity.
-
Example of flawed substantiation.
Whereas
it is prescribed in the rules of the Human Resource Law that the abolition of a
job in the organisational structure of a public utility means to permanently
write off the job with all its duties and responsibilities from the tasks of the
organisation within which the job in the government entity is included, unless
it is decided that such position and duties are to be transferred to another
organisation in the same/or to a different government entity; and whereas it is
prescribed in Article 145/7 of the Human Resource Regulation for ... on 6/1/2015
that: - The service of the employee ... shall end by a decision of the head of
... as a result of restructuring the organisational units or the jobs ... -;
and whereas it was established that the respondent used to work in the office of
the head of ... in the position of public relations and local communication
officer, starting from 25/9/2016. Decision No. 127 of 2018 was issued on
16/12/2018 by the head of... stipulating in the first article that: The office
of the head of ... shall be restructured ... and the following job positions
shall be abolished 2: The position of public relations and local communication
officer, which is the position that the respondent held for a period not
exceeding three years; and it has not been proven that the tasks associated with
this position have been transferred to an organisational unit within the
departments of ... or to another government entity, and they totally disappeared
from the organisational structure of .... which has not been refuted by the
respondent, hence the decision terminating his service shall be deemed to have
been issued based on a legitimate ground, which was not considered by the
contested judgment, which constitutes a breach of the law, and this has
prevented it from discussing the elements of the case, and thus necessitates its
reversal.
Whereas
in the facts as apparent in the contested judgment and all cassation documents,
the Respondent has filed Lawsuit No. 57 of 2019 Abu Dhabi requesting the
cancellation of Decision ... terminating his service, based on the ground that
said Decision is illegitimate, and imposing paying him his dues. By way of
explanation of his lawsuit, he said that he used to hold the position of public
relations and local communication officer in the office of the head of
.......... as of 25/9/2016 until his service was terminated due to the
restructuring on 2/1/2019 and then he finally requested the cancellation of the
termination decision and alternatively imposing upon ... to pay him his dues
including the end-of-service gratuity, his salaries and his leave balance. The
court of first instance ruled in the session dated 30/06/2019 to reject the
lawsuit. On 9/11/2019, the Court of Appeal ruled to cancel the first-instance
judgment and ruled once again to cancel the contested termination decision;
thus, the appeal was filed and was presented to this court in the deliberation
room; thus, the chamber decided to present it in a session, and the court
decided to pronounce the judgment in today's session.
Whereas the cassation was based on nine grounds whereby the Appellant objects,
in the first to the fifth ground, to the contested judgment, stating that it
violated the law and erred in its application when it ruled that the decision
terminating the service of the respondent is illegitimate, while said decision
was based on a legitimate ground, as the Respondent used to work for the
Appellant in the position of public relations officer in the office of the head
of ..., which is the position that was abolished by the decision of
restructuring and organizing ..., which means that the decision is based on a
legitimate ground that is well founded in fact and in law, which was not
considered by the contested judgment, thus said judgment shall be deemed flawed
and necessitated its reversal;
Whereas
the objection is apposite as
it is prescribed
in the rules of the Human Resource Law that the abolition of a job in the
organisational structure of a public utility means to permanently write off the
job with all its duties and responsibilities from the tasks of the organisation
within which the job in the government entity is included, unless it is decided
that such position and duties are to be transferred to another organisation in
the same/or to a different government entity; and whereas it is prescribed in
Article 145/7 of the Human Resource Regulation for ... on 6/1/2015 that: - The
service of the employee ... shall end by a decision of the head of ... as a
result of restructuring the organisational units or the jobs ... -; and whereas
it was established that the respondent used to work in the office of the head of
... in the position of public relations and local communication officer,
starting from 25/9/2016. Decision No. 127 of 2018 was issued on 16/12/2018 by
the head of... stipulating in the first article that: The office of the head of
... shall be restructured ... and the following job positions shall be abolished
AThe
position of public relations and local communication officer, which is the
position that the respondent held for a period not exceeding three years; and it
has not been proven that the tasks associated with this position have been
transferred to an organisational unit within the departments of ... or to
another government entity, and they totally disappeared from the organisational
structure of .... which has not been refuted by the respondent, hence the
decision terminating his service shall be deemed to have been issued based on a
legitimate ground, which was not considered by the contested judgment, which
constitutes a breach of the law, and this has prevented it from discussing the
elements of the case, and thus necessitates its reversal, provided that such
reversal is made with referral.