30012011 YOU AND THE LAW (UAE)

~ UAE – Questions answered by Advocate Mohammad Ebrahim Al Shaiba of Al Bahar Advocates and Legal Consultants

I worked in a company based in Sharjah; but six months ago, the company asked me to look for a job in another company due to non-availability of work for me and the unstable conditions of the company. Six months later, I returned to the company after failing to get a job in another company and I asked the employer to cancel my visa and to pay my labour dues, but he told me that I am not entitled to claim anything since I left the company for more than six months and that the law entitles the employer to terminate the employee in case of his absence from work for more than seven days without any dues. Please note that the employer did not report to the Ministry of Labour on this matter.

My question here is: what is the position of the law on this matter? Am I entitled by law to claim my rights in full including salaries for the said six months during which I did not work in the company? Please provide your advice in this regard, as the company has terminated me recently.

I would like to advice the questioner, if he failed to reach an amicable solution with the employer, to file a complaint before the Ministry of Labour claiming his labour rights in full, including salaries for the said six months even if he did not work during such period, as the employer is the one who asked the questioner to look for another job and this is against the labour law.

Also, the questioner may claim for compensation for the arbitrary dismissal, as according to the law, dismissing the employee from work due to his claim for his rights is deemed as arbitrary dismissal.

I have worked for one year only under a contract for unlimited period; the company where I am employed pays salaries every three months only due to the financial problems in the company according to the manager and that the company may be shut down if this situation continues.

My question here is: in the event of cancellation, is the matter of ban for six months still applicable as per the new law notes that it is said that the six months ban is no longer applicable at present and others say that it is applicable, therefore my question is: if the law of six months ban is applicable as per the new law, are there exceptions to such ban law?

I would like to clarify to the questioner that the law of a ban for six months is still applicable at the Ministry of Labour as per the decisions of the new law. However, the Ministry of Labour excludes the employee from the six-month ban and allows him to transfer to a new company in the following cases:

1. If the employer breaches his obligations specified by law or agreed upon, such as non-payment of the salary for more than 60 days.

2. When the end of relationship is not caused by the employee such as the case filed by the employee against the company where he is employed due to the company’s shut down, in this event, a report from the Inspection Department at the Ministry of Labour is required, confirming that such company is not practising its activity for a period exceeds two months provided the employee has contacted the Ministry of Labour during the same.

3. In respect with the complaint being filed by the employee before the Ministry of Labour against the employer, based on such complaint, the Ministry of Labour would refer the same to the competent court after the failure of amicable endeavours before the Ministry of Labour, in this event a final judgement is required to be issued from such court, stating the eligibility of the employee of at least two months’ salary or a judgement for him on the compensation for the arbitrary dismissal or otherwise the termination of the limited employment contract preterm or any other rights has not been paid by the employer to the employee.

I would like to know how the end-of service gratuity is calculated and whether it is calculated on the basic salary basis plus the commission and overtime hours, and whether the said salary is calculated in the employment contract or the current salary.

I would like to clarify to the questioner that article No. 134 of the Federal Labour Law No. 8 of 1980 states the following: “Without prejudice to the provisions of laws that grant pensions or retirement benefits to employees in certain firms, severance pay shall be calculated on the basis of the wage last due for monthly, weekly and daily paid workers, and on the basis of the average daily wage referred to in Article 57 hereof for those paid on piecemeal.

The wage used as a basis for calculating severance pay shall not include whatever is given to the worker in kind, housing allowance, transport allowance, travel allowance, overtime pay, representation allowance, cashier’s allowances, children education UAE Labour Law 29 allowance, allowances for recreational and social facilities, and any other bonuses or allowances”.

I worked in a company for more than three years under a contract for unlimited period. About two months ago, I submitted my resignation. However, when I completed the notice period, they told me that my resignation had not been approved by the manager and I have to return to work, otherwise I will lose my rights related to end-of-service gratuity. I refused the company’s request and told them that I would no longer return to work. When I failed to reach a solution with them, I went to the Ministry of Labour to file a complaint against the company, but the complaint took more than one month due to the prolonging by the managing director and his reluctance to appear before the Ministry of Labour.

My question here is; A: Does the Labour Law require the employer to come to the Ministry of Labour for the complaint to be referred to the competent court? B: What is the legal period as per the law for the complaint to be referred to the competent court? Is there a legal text in this regard?

I would like to clarify to the questioner that the Labour Law requires the attendance of the employer before the Ministry of Labour. However, the reluctance of the employer to appear before the Ministry of Labour does not prevent the complaint to be referred to the competent court. The Ministry of Labour would request from the employer to attend in order to acquaint him with the complaint so that the dispute might be settled amicably and thus saving time and efforts which the employee would have had if the issue had been referred to the competent court which might take some time for consideration.

As for the question on the legal period, after which the complaint shall be referred to the competent court, article No. 6 of the Federal Labour Law No. 8 of 1980 states the following: “Without prejudice to the rules provided for under this Law concerning collective labour disputes, if the employer, the worker or any beneficiary thereof disputes any of the rights provided for any of them under this Law, he shall file an application to the competent Labour Department, which shall summon both parties and take whatever action it deems necessary to settle the dispute amicably. If no such amicable settlement is reached, the said Department shall, within two weeks from the date of application, refer the dispute to the competent court under a memorandum containing a summary of the dispute, the arguments of both parties, and the Department’s comments. The court shall, within three days from date of receiving the application, fix a hearing date and notify the parties accordingly. The court may summon a representative of the Labour Department to explain the content of the memorandum submitted by it. In all cases, no claim for any of the rights provided for in this Law shall be heard if brought to court after the lapse of one year from the date of accrual, nor shall any claim be admitted if the procedures stated in this Article are not complied with”.