Cassation No. 891 of 2019 (Administrative)
Issued on 29/01/2020
Panel: Chief Judge/Mohammed Abdul Rahman Al Jarrah - Head of the Chamber - and Counsellors/ Judges/Ashraf Mohammed Shehab and Sabri Shamsuddin Mohammed.
1- It shall be considered that 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.
2 - 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.
3- 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 the gravity of the material act that constitutes the offense is related to the moral consideration associated with its commission.
4- The contested decision dismissing the Appellant for having posted two videos on social media sites that contained the following expressions: (We are a group of national doctors and pharmacists, there is no justice for us), and (our rights are being violated), shall be deemed flawed with overestimation causing it to become invalid and necessitates its annulment since 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; while the Appellant’s intention was to report what she considers, according to her conviction, as legal measures taken against her, without any intent of insult or defamation.
5- The Respondent shall not be held liable for compensation since 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.
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.
The court,
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.

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