Kuwait Court of Cassation principle number 392

Summary: - The first respondent company’s notification to the appellant—the worker—and others working for it of its desire either to transfer their residence permits or for them to return to their countries. Its import: it became the party responsible for terminating the employment contract. The reason: the 2 options it offered its workers, including the appellant, namely transferring residence permits or returning to the country of origin, necessarily lead to termination of the contract on its part. The appellant’s submission of a request to transfer his residence permit does not alter this reality. The challenged judgment, affirming and supplementing the first-instance judgment, departed from this view, adopting the expert’s report that regarded the appellant as having left his work voluntarily and consequently as not entitled to an end-of-service gratuity. A defect requiring its cassation. Rule: It is established in this Court’s jurisprudence that the grounds of a judgment are tainted by defective reasoning if they contain a flaw affecting the soundness of the inference. This occurs if the court bases its conviction on evidence objectively unfit to support that conviction, fails to understand the factual elements established before it, or finds a contradiction between those elements, as where the conclusion reached by the court does not logically follow from those elements established before it. Although the court of merits may adopt an expert’s report in forming its conviction, this is conditional upon the part of the report it adopts resting on sound grounds having a proper basis in the papers and leading to the conclusion reached. If, however, those grounds do not adequately answer a material defense maintained by a litigant, and the court relies on them in its ruling, its judgment is defective for inadequacy of reasoning. That being so, the appellant maintained before the court of merits that the first respondent company was the party responsible for terminating the employment contract through its circular dated 1/2/2011, 3 months before the expiry of the appellant’s contract, which included a request that its workers inform it of their wish either to transfer their residence permits or to return to their country of origin in the event of termination of the contract concluded between it and the second respondent company. The import of this defense presented to the court of merits was that the first respondent company was responsible for terminating the contract, since the 2 options it offered its workers, including the appellant, namely transferring residence permits or returning to the country of origin, necessarily lead to termination of the contract on its part, and the appellant’s submission of a request to transfer his residence permit does not alter this reality. As the challenged judgment, affirming and supplementing the first-instance judgment, departed from this view, adopting the expert’s report that regarded the appellant as having left work voluntarily and consequently as not entitled to an end-of-service gratuity upon the expiry of the last employment contract dated 17/7/2010, it is defective in a manner requiring its partial cassation in this respect.