Cassation
No. 891 of 2019 (Administrative)
Panel:
Chief Judge/Mohammed Abdul Rahman Al Jarrah - Head of the Chamber - and
Counsellors/ Judges/Ashraf Mohammed Shehab and Sabri Shamsuddin Mohammed.
Complaint. Administrative decision. Administrative authority. Discipline. Abuse
of power. Penalty “its estimation”. Judgement “flawed
substantiation”. Reversal “of accepted grounds”
-
The right to file a complaint is guaranteed by the law and protected by the
Constitution, provided that the complaint is filed to the competent authority
that has the power to ensure elimination of injustice and restitution of
rights.
-
Filing the complaint to other than the competent original authorities, or
getting carried away with expressions charging accusations without evidence
shall be deemed to cause the proceedings to go astray and miss their goal and
necessitate holding the Appellant liable.
-
The disciplinary authority may have final power to estimate the seriousness of
the offense with a commensurate penalty, provided that it does not commit any
abuse of power or an overestimation of the penalty.
Overestimation
means the disproportion between the degree of seriousness of the offense and the
type and amount of the penalty.
An
example of a substantiation that is considered flawed due to overestimation,
causing the decision to become invalid.
Whereas
it is prescribed that the right to file a complaint is guaranteed by the law and
protected by the Constitution, and the exercise of this right requires the
fulfilment of specific conditions the first of which is that the complaint shall
be filed to the competent authority having the power to ensure elimination of
injustice and restitution of rights; thus Filing the complaint to other than the
competent original authorities, or getting carried away with expressions
charging accusations without evidence shall be deemed to cause the proceedings
to go astray and miss their goal and necessitate holding the plaintiff liable
for disciplinary offence. However, although the disciplinary authority may have
final power to estimate the seriousness of the offense with a commensurate
penalty, such estimation requires the authority not to commit any abuse of power
or an overestimation of the penalty. As an example of such overestimation is the
disproportion between the degree of seriousness of the offense and the type and
amount of the penalty. Such proportionality is to be fulfilled in light of the
precise definition describing the offence through the circumstances that form
its dimensions, which means that the gravity of the material act that
constitutes the offense is related to the moral consideration associated with
its commission so an offense based on omission or negligence shall be not deemed
equal to an offence that is committed intentionally and that aims at achieving
an unlawful purpose, since there is no doubt that the first is less severe than
the second, and this is what shall be taken into account in the estimation by
the authority undertaking the imposition of the disciplinary penalty in light of
the valid conclusion inferred from the documents related to the matter.
Whereas
it is established in the documents that the Appellant has been referred to the
Offences Commission for having posted two videos on social media sites that
include a call for help and a complaint filed to ..., and the videos contained
the following expressions: (We are a group of national doctors and pharmacists,
there is no justice for us ), (our rights are being violated), (they are
intending to throw as away from the Ministry), and upon the direction of the
Offences Commission, the Appellant has been precautionarily suspended from work
and she has been interrogated. The Investigation Committee has recommended
dismissing her from service. Although the aforementioned complaint included
accusations without any supporting evidence, which have caused the proceedings
to go astray and miss their goal; however, the evidence established in the
documents showing that what was mentioned in the complaint was not the result of
groundless fabrication by the Appellant, but rather based on the measures taken
against her including the withdrawal of some of her powers, the attribution of
violations to her, and her interrogation; and the Appellant’s intention
was to report what she considers, according to her conviction, as legal measures
taken against her. Further, this complaint doesn’t show that she has been
driven by the will to harm her colleagues or superiors or to deceive them
without any factual grounds, which is confirmed by the fact that she has not
specified a specific person to whom these accusations were attributed, which
sets her free from the suspicion of having filed the complaint with intent of
insult or defamation, and confirms her intention to put an end to the violation
committed against her, despite the conclusion reached by the investigation
regarding the unsoundness of the complaint, as an employee is not required to be
able, before submitting the complaint, to conduct a thorough and in-depth
research for which he has no means, and to explore other aspects thereof, which
confirms that her behaviour was in good faith even if it involved recklessness
and invalid conclusions. Although the foregoing permits holding her disciplinary
liable; however, Article (83) of the Human Resources Law included many gradual
penalties, starting with drawing attention, to salary deduction, to demotion,
and finally dismissal from service. However, the Respondent has chosen the
harshest penalty i.e. dismissal from service without opting for a less severe
penalty commensurate with the seriousness of the administrative offence in light
of the circumstances happening before or at the time of filing the complaint, in
light of the moral consideration associated with the commission of the offense,
reflecting negligence and recklessness, which was not committed deliberately
with the intention of insult or defamation; hence, the contested decision shall
be deemed to have involved overestimation causing it to be considered as
invalid, and thus necessitates its annulment. Whereas the court has not adhered
to that view in the contested judgment and has rejected the request for
annulment of the contested dismissal decision, therefore the contested judgment
necessitates its reversal.
Whereas
in the facts - as apparent in the contested judgment and all documents - the
appellant has filed against the Respondent a lawsuit under No. 177 of 2017
(administrative – plenary - Abu Dhabi Federal) on 8/8/2017, requesting
the court to rule the following: 1- Annulling the decision to terminate her
service and bringing her back to her job with the same job rank 2- Annulling the
decision to deduct the pay of ten days from her salary 3- Paying her salary from
the time it was suspended until her return to her job with the payment of the
prescribed allowances, incentives and bonuses 4- Adding the period from
termination of her service until her return to work to her service period 5-
Paying her compensation for the damages incurred by her as a result of those
decisions, and, precautionarily, assigning an expert to review the documents in
the case. By way of explanation of her lawsuit, she said that the contested
decision was issued to deduct the pay of ten days from her salary and that she
objects to that decision stating that it was not based on a correct ground, and
added that after the issuance of the aforesaid decision, she has addressed a
call for help against the behaviour of the Respondent... However, the latter has
considered such call as a violation that requires interrogating the Appellant.
Accordingly, she was suspended from work, then a decision was issued to
terminate her service in violation of the law, and it ended with her previously
stated requests.
In
the session dated 8/8/2017, the court ruled to dismiss the Lawsuit for having
been filed after the prescribed time-limit.
The
Appellant filed an appeal under No. 150 of 2017 against the aforementioned
judgment. In the session dated 14/11/2017, Abu Dhabi Federal Court of Appeal
ruled to confirm the appealed judgment.
The
Appellant has filed Cassation No. 27 of 2018 before the Federal Supreme Court,
which ruled, in the session dated 27/6/2018, to reverse the contested judgment
and ordered to refer the case to Abu Dhabi Federal Court of Appeal for retrial
with a different panel.
In
the session of 29/1/2019, the Court of Appeal ruled to annul the appealed
judgment as to the ruling whereby the court decided to dismiss the Lawsuit,
retry the case, and return it to the Court of First Instance to decide on the
merits with a different panel.
In
the session dated 20/8/2019, Abu Dhabi Federal Court of First Instance ruled to
dismiss the case.
The Appellant filed an appeal against that judgment under No. 149 of 2019.
In
the session dated 5/11/2019, the Court of Appeal has ruled to reject the appeal,
and the Appellant has filed the present Cassation.
Whereas
the court has examined the cassation in the deliberation room and deemed that
it’s worthy of being heard, it set a date for the hearing.
Whereas,
the Appellant objects to the contested judgment stating that it violated the law
and erred in its application since ordinarily, the courts’ control over
the ground of the administrative decision shall be only limited to determine
whether the conclusion reached by the decision is a validly inferred; and
although the administration shall have the discretionary power to make such
inference; however, this shall be done without any abuse of power. Whereas the
Appellant’s call addressed to ... based on which the contested decision
terminating her service was issued did not affect any of the employees of the
Respondent, and did not result in any harm to any of them; thus, the Respondent
shall be deemed to have abused its power by issuing said decision, which
necessitates its annulment and the reversal of the contested judgment.
Whereas
it is prescribed that the right to file a complaint is guaranteed by the law and
protected by the Constitution, and the exercise of this right requires the
fulfilment of specific conditions the first of which is that the complaint shall
be filed to the competent authority having the power to ensure elimination of
injustice and restitution of rights; thus Filing the complaint to other than the
competent original authorities, or getting carried away with expressions
charging accusations without evidence shall be deemed to cause the proceedings
to go astray and miss their goal and necessitate holding the plaintiff liable
for disciplinary offence. However,
although
the disciplinary authority may have final power to estimate the seriousness of
the offense with a commensurate penalty, such estimation requires the authority
not to commit any abuse of power or an overestimation of the penalty. As an
example of such overestimation is the disproportion between the degree of
seriousness of the offense and the type and amount of the penalty. Such
proportionality is to be fulfilled in light of the precise definition describing
the offence through the circumstances that form its dimensions, which means that
the gravity of the material act that constitutes the offense is related to the
moral consideration associated with its commission so an offense based on
omission or negligence shall be not deemed equal to an offence that is committed
intentionally and that aims at achieving an unlawful purpose, since there is no
doubt that the first is less severe than the second, and this is what shall be
taken into account in the estimation by the authority undertaking the imposition
of the disciplinary penalty in light of the valid conclusion inferred from the
documents related to the matter.
Whereas
it is established in the documents that the Appellant has been referred to the
Offences Commission for having posted two videos on social media sites that
include a call for help and a complaint filed to ..., and the videos contained
the following expressions: (We are a group of national doctors and pharmacists,
there is no justice for us ), (our rights are being violated), (they are
intending to throw as away from the Ministry), and upon the direction of the
Offences Commission, the Appellant has been precautionarily suspended from work
and she has been interrogated. The Investigation Committee has recommended
dismissing her from service. Although the aforementioned complaint included
accusations without any supporting evidence, which have caused the proceedings
to go astray and miss their goal; however, the evidence established in the
documents showing that what was mentioned in the complaint was not the result of
groundless fabrication by the Appellant, but rather based on the measures taken
against her including the withdrawal of some of her powers, the attribution of
violations to her, and her interrogation; and the Appellant’s intention
was to report what she considers, according to her conviction, as legal measures
taken against her. Further, this complaint doesn’t show that she has been
driven by the will to harm her colleagues or superiors or to deceive them
without any factual grounds, which is confirmed by the fact that she has not
specified a specific person to whom these accusations were attributed, which
sets her free from the suspicion of having filed the complaint with intent of
insult or defamation, and confirms her intention to put an end to the violation
committed against her, despite the conclusion reached by the investigation
regarding the unsoundness of the complaint, as an employee is not required to be
able, before submitting the complaint, to conduct a thorough and in-depth
research for which he has no means, and to explore other aspects thereof, which
confirms that her behaviour was in good faith even if it involved recklessness
and invalid conclusions. Although the foregoing permits holding her disciplinary
liable; however, Article (83) of the Human Resources Law included many gradual
penalties, starting with drawing attention, to salary deduction, to demotion,
and finally dismissal from service. However, the Respondent has chosen the
harshest penalty i.e. dismissal from service without opting for a less severe
penalty commensurate with the seriousness of the administrative offence in light
of the circumstances happening before or at the time of filing the complaint, in
light of the moral consideration associated with the commission of the offense,
reflecting negligence and recklessness, which was not committed deliberately
with the intention of insult or defamation; hence,
the
contested decision shall be deemed to have involved overestimation causing it to
be considered as invalid, and thus necessitates its annulment. Whereas the court
has not adhered to that view in the contested judgment and has rejected the
request for annulment of the contested dismissal decision, therefore the
contested judgment necessitates its reversal.
Whereas
the Cassation is filed for the second time, and therefore the court shall
address the adjudication of the dispute as per the provisions of Article (184)
of the Civil Procedure Law;
Whereas
with respect to the request of annulment of the decision terminating the
Appellant’s service and the resulting consequences thereof as to her right
for adding the period from the date of termination of her service until the date
of returning to work to her service period, the court has ruled, based on the
aforementioned, to annul the contested termination decision and the resulting
consequences thereof.
Whereas
with respect to the request of annulment of the decision to deduct the pay of 10
days from the Appendant’s salary, the court has confirmed the conclusion
reached by the Court of First Instance as to the rejection of the request of
annulment of said decision based on supporting grounds;
Whereas with respect to the request for
compensation, as the element of fault is not fulfilled on the part of the
Respondent as to the aforementioned deduction decision, and whereas the
Respondent’s fault of having imposed the penalty of dismissal from service
due to overestimation has been induced by the Appellant’s fault for which
she shall have been sentenced to a disciplinary penalty that is less severe than
dismissal from service as mentioned above; therefore, the Respondent shall not
be held liable for compensation and thus the aforesaid request shall be
rejected.
Whereas
with respect to the request of paying the Appellant’s salary as of the
date of termination of her service, it is prescribed as per the ruling of the
present court that a salary is paid in return for work while the Appellant has
not performed any work for which she shall be entitled to a salary; therefore,
said request shall be rejected as well.