Kuwait Court of Cassation principle number 536

Summary: - Supervisory positions. Civil Service Council Decision No. 25 of 2006 laid down special provisions concerning their occupancy, with which the administrative authority must comply, whether upon assignment to them or confirmation in them. These conditions include the necessity of an actual period of experience for each level of occupancy of these positions, which the employee must have spent directly performing his work and actively engaged in it or connected with it in the exercise of his duties. The necessary consequence: periods of sick leave granted to the employee under the law reduce the employee’s actual period of experience, since he does not perform his work during them, and are therefore deducted from the period required as actual experience. Rule: Article (1) of Decision No. 40 of 2006 concerning the rules for calculating periods of experience defined its scope of application as determining the financial grade prescribed in the general cadre grade schedule in respect of determining the grade of appointment or reappointment or when determining the salary or monthly remuneration of non-Kuwaitis. Notwithstanding this, Article (1) of Civil Service Council Decision No. 25 of 2006 concerning the conditions for occupying supervisory positions identified supervisory positions as follows: (Department Director – Controller – Section Head – Division Head). Article (2) of the same decision also contained the conditions for occupying supervisory positions, including the position of Controller, and required that the employee hold a university qualification + experience of no less than eight actual years in the field of work to occupy this position, with four actual years to be added to the actual experience period for holders of a specialized diploma or its equivalent or training courses of no less than two years after general secondary education, and that the last two reports received by the employee be rated Excellent. Article (3) of the same decision also provided that, when assigning supervisory positions, account must be taken of their being initially by assignment for at least one year before confirmation in them. Article (4) of the same decision also provided that the conditions in Article (2) thereof represent the minimum with which the administrative authority must comply in filling these positions. Whereas, in view of the special nature of the supervisory position, the aforementioned Decision No. 25 of 2006 laid down special provisions concerning its occupancy, with which the administrative authority must comply, whether upon assignment to it or confirmation in it. These provisions include the necessity of an actual period of experience for each level of occupancy of these positions. For the position in dispute (Controller), it required an experience period of eight actual years, meaning that the employee must have spent them actively engaged in his work his work, directly performing it, so as to have acquired the occupational experience necessary to occupy this position as a position of a special nature differing in its substance and methods of occupancy from promotion to a current grade, whether by seniority or selection, since each has its own provisions and rules, even though they are similar in that they move the employee up the employment ladder. In comparing those who satisfy the conditions for occupying supervisory positions, Decision No. 37 of 2006 concerning comparison criteria is called upon. Accordingly, the actual experience period specified by Article (2) of the aforementioned Decision No. 25 of 2006 concerning the conditions for occupying supervisory positions must have been spent by the employee directly performing his work and actively engaged in it or connected with it in the exercise of his duties. Consequently, although periods of sick leave obtained by the worker are granted to the employee under the law, they reduce the employee’s actual experience period, since he does not perform his work at all during his sick leave. They are therefore deducted from the period required as actual experience for occupying supervisory positions, whether by assignment or appointment.