Labour Law Contract, Gratuity Calculation, Arbitrary Dismissal - Essay Example

?Ask the law Feb 18, Gulf News This article consists of two queries which Mohammad Al Shaiba has addressed. Query Labour Law Contract The first question in this section was linked with Labour Law. The questioner was working in a company from last three years out of these three years period, two years and four months he worked on a visa that did not belong to the company he worked. After eight months of visa adjustment with the employing company, the employment led to termination due to some dispute. However the company paid the labour dues only on the calculations based on the eight months legal service, giving reference of Labour Law. The primary concern of the questioner is whether his concern can be referred to the court. The other two concerns are: 1. Position of the concerned court with respect to end-of service gratuity for the previous period of the visa. 2. Salary difference of the actual received and mentioned in the labour contract. Response: Al Shaiba clarified about the right of questioner that he has full right to get compensation based on his actual employment duration which is three years. Regarding the salary difference, Labour Law calculates the compensation based on the current salary drawn by the employee. Therefore, both the concerns addressed clarify that the employee shall get his case referred under the concern court through the Ministry of Labour. Query#2: Gratuity Calculation The questioner worked in a company under unlimited contract for one year before tendering his resignation. Questioner has two queries: 1. The end of service gratuity was calculated on the basis of 21 days salary. 2. If the questioner is legally entitled for a return ticket to his home country as the contract was signed in the home country. Response: Al Shaiba gave the reference of Article No 137 of the Federal Labour Law No.8 of 1980. This article clarifies the doubt of the respondent. The article states, "Where a worker under an indefinite term contract abandons his work at his own initiative after a con­tinuous service of not less than one year and not more than three years, he shall be entitled to one-third of the severance pay provided for in the preceding article. Such a worker shall be entitled to two thirds of the said severance pay if his continuous service exceeds three years up to five years and to the full severance pay if it exceeds five years". The second doubt is clarified that the employee is entitled to get the return tickets to home provided he returns back to home country and does not work with a new employer. Query 3: Arbitrary Dismissal This is a case of dismissal of an employee who was working for his company from more than two years. The nature of the contract was for unlimited period. The employee received dismissal due to his absence from work for five consecutive days without excuse, 6th day he was present at work but again 7th and 8th day he went absent. The dismissal was justified under pursuant of the Article n. 120 (Labour Law) and employee was explained that he was not entitled to end-to service gratuity even after producing medical report for the absence period. The queries were: 1. Questioner wanted to know the Article 120 in detail. 2. Questioner wanted to clarify what should he do if the dismissal is not in conformity of the Article no.120 of the Labour Law 3. If there is no conformity; could he get reinstated by his company under legal obligation of Ministry of Labour/Competent court? Answer: The article No.120 of the Federal Labour Law No.8 of 1980 is as follows: "An employer may dismiss a work­er without notice if and only if the worker: 1. Assumes a false identity or na­tionality or submits forged certificates or documents; 2. Is engaged on probation and is dismissed during or at the end of the probationary period; 3. Commits a fault resulting in sub­stantial material loss to the employ­er, provided that the latter notifies the labour department of the inci­dent within 48 hours of his becoming aware of its occurrence; 4. Disobeys instructions on the safety of work or workplace, pro­vided that such instructions are in writing and posted at a conspicuous place and are communicated verbally to the worker, in case he is illiterate ; 5. Defaults on his basic duties un­der the contract and fails to redress such default despite a written interrogation and a warning that he will be dismissed if such default is repeated; 6. Is finally convicted by a competent court of a crime against honour, honesty or public morals; 7. Reveals any confidential information of his employer; 8. Is found in a state of drunkenness or under the influence of a narcotic drug during working hours; 9. Assaults the employer, the manager in charge or any of his workmates during working hours; or 10. Absents himself from work without a valid reason for more than 20 non-successive days in one single year or for more than seven successive days". On the basis of the details provided by the questioner, Al Shaiba opines that the dismissal might be contrary to article no.120 of the Federal Labour Law No.8 of 1980. This can be considered as arbitrary dismissal is the competent court finds the dismissal contrary the article mentioned above. In that case, questioner can claim for the compensation along with the other labour dues. However the question of reinstate is not applicable as the court will not oblige employer to reinstate the employee in the job irrespective of whether the dismissal is contrary to the Labour Law. Ask the law 2 Date: Feb 25, 2011, Gulf News Query 1: Better Job opportunity during Contract for a limited periods The questioner is employed under contract for a limited period of three years out of which 2 years of the contract has passed. The query is for the better job opportunity he has received: 1- Questioner wants to know if he has the right to terminate the contract and work with new employer under the new Labour Law without the need of a No objection certificate from the current employer. 2- Questioner’s current employment contract does not require one month notice, however questioner wants to clarify is he/she should give one month’s notice if he/she decides to leave work and terminate the current employment contract? Answer: Al Shaiba clarifies that the questioner is not required to get No-Objection certificate from the current employer if he/she has completed two years of employment with the current employer if the contract is for unlimited period under the decision of the Ministry of Labour. However this case is different as it is for the contract for limited period; worker is required to work till the end of the contract so that it is not deemed contrary to law and affects the entitled compensation. The consequences may also lead to one year ban if the current employer asks the Ministry of Labour due to the termination of limited period contract by the employee. Further, Al Shaiba explains that “an employee under a limited contract is not obliged by the law to give notice to employer”. As per his advice, “the questioner needs to comply with the contract and seek agreement and consent of the employer to leave the company”. Query#2: Resignation The questioner had worked for a company for 3 years under an unlimited period contract. He tendered his resignation along with a notice that he would work for one month as stated in the employment contract signed between company and him. However, employer asked him to leave immediately and denied his labour due under the law. Questioner asks 1- Has the employer breached the law when he declined to let the questioner work during the notice period? 2- Is this deemed as an arbitrary dismissal? 3- Is the questioner entitled to compensation? Answer The employee submitted his resignation with free will and once the resignation is tendered, it is employer’s right to accept or reject the one month notice period work from the employee. Therefore the employee did not breach the law. This is therefore not deemed as arbitrary dismissal. Since the employer has not dismissed the employee, no compensation is entitled. Query#3: Disability This question was raised by the spouse of an employee who met with an accident during his work. This occupational accident resulted in 60% disability and employee was unfit to work. Employment was terminated based on the report form the government hospital as well as employee’s request. He was given end-of-service gratuity. However he was denied any compensation for disability. The query was: Is this conformity with the law? If yes, can the employee choose between taking the end of service gratuity or the compensation if one is higher than the other? Answer: As per the Labour Law the employee is entitled for both the compensations; compensation for injury that led him disability and end of service benefits. Ask the law # 3 March 4, 2011, Gulf News Query#1: The questioner received a cheque from a person for a financial transaction between them in front of his friend in his office a year ago. The person issuing cheque only signed it whereas the rest of the details (date, name and amount) were blank. A month ago when the questioner asked the person to give him claimed amount to return the cheque he declined and threatened that he has reported police that his cheque is stolen so if the questioner submits the cheque and it gets bounce, he only would be at risk as he can not write the other details and he would be charged for stealing. The query was 1- Was the claims made by the cheque issuing person right? 2- Is the questioner entitled to write the missing information on the cheque and get the claimed amount? Answer: Mohammed al Shaiba’s provides guidance to the questioner by clarifying the fact that he can not be charged for stealing and can furnish all the remaining information and claim his amount. To support this he explains: 1. The questioner has an eye witness, in front of whom the cheque was signed and issued. 2. The cheque issuer has already signed a blank cheque and given the authority to the questioner to fill the information. 3. The police report is a month old whereas the cheque was issued a year before. Query#2: Compensation The questioner worked as a teacher for 2 years in a private school. The dismissal from employment was without any reason due to which questioner filed a complaint against the school to reinstate under the Ministry of Labour. Considering the dismissal as arbitrary dismissal, questioner claimed compensation. However the school refused to reinstate the arbitrary compensation and stated that they are ready to provide end-of-service gratuity only. This resulted in a condition where questioner asked the Ministry of Labour to remit the complaint to the competent court to reinstate him/her. The queries are linked to the same: 1- If arbitrary dismissal is proved, will the questioner legally entitled for to ask for reinstatement? 2- What’s the amount of compensation for the arbitrary dismissal and how is it assessed by the court? 3- Is the school entitled to ask the Ministry of Labour to force the questioner to vacate the accommodation provided by the school which is the current residing place for him/her? Answer: This matter is against the Labour Law therefore questioner is not entitled by law to ask the competent count to reinstate him/her. However if arbitrarily dismissal is proved before the competent court, questioner may ask the court for the compensation. In that case the compensation amount shall be equal to the maximum of three months salary and determined on the basis of the period of service of the questioner in the school. The questioner is not obliged to vacate the accommodation unless she received her full payment or the payment of the same in the Ministry of Labour treasury as security until the case is decided by the competent court. In the case where the dues are paid in the Ministry of Labour, questioner would be required to vacate the accommodation within 30 days of making of the payment. Query#3: Contract renewal The questioner worked for a company under a limited contract for three years. The contract expired two months ago and it was not renewed. Employee has been working without renewal and wishes to join other company with better opportunity. This was verbally discussed with the Managing Director as questioner expressed his desire to leave the job by tendering the resignation. However he was told that he is not entitled by the law to leave the job as the contract got automatically renewed once he continued working after expiry and he will be subject to ban if he works anywhere else. The queries of questioners are regarding 1- The legal position of the questioner 2- Is the contract really deemed renewed for the limited period when he continued working? Answer Under the Article no 39 of the Federal labour Law no 8 of 1980 “An employment contract shall from its inception be considered as an indefinite term contract if and only if 1. Is not written. 2. Is concluded for an unspecified period 3. Was originally written and concluded for a definite term but both parties without a written agreement between them continued to perform it after its expiry or 4. Was originally concluded for the execution of a specific work that had no specific duration or that is recurrent by nature, but the contract continued after completion of that specific work” The clarification provided clearly states that even if the contract is renewed, it will be considered for unlimited period therefore the questioner can give notice of resignation and leave after the notice has expired. Ask the law # 4 Query#1: Construction and Real Estate Regulatory Authority Date: March 11, 2011, Gulf News This is a query linked with Real Estate and Construction industry. The questioner bought a 2 bedroom from a developer and paid 80% of the property value. The developer committed to hand over the property in April 2010. When the questioner approached the Land Department in Dubai he was informed that such property was not registered and there is no escrow account for the developer which means that the property wasn’t registered with the questioner’s name. The questioner contacted the developer regarding the same. The developer stated that 60% of the project is complete. The registration will start after the completion of the project. The questioner informed the developer that she/he will stop the instalments until the property is registered. 1- Is it possible to file a case against the developer, terminate the contract, and reimbursement of everything paid when the property has not been handed over more than one year of the promised date? Answer: The questioner obliged by law to terminate the contract and get the reimbursements as well as interest and probably compensation in the case where questioner and developer can not reach to any amicable solution. This is a breach of law no 13 of 2008 (organisation of real Estate Registry, Dubai) by the developer. Query#2 Termination The questioner works in a private school for more than 2 years under an unlimited contract. After 30 days of maternity leave she received an email for the termination of her service. The reasons provided for the termination was the 2nd maternity leave along with plenty of sick leaves. The queries are 1- Is the school management legally entitled to dismiss the questioner from work during the leave period and does such dismissal affect current maternity leave dues? 2- If not, than is she entitled to ask the Ministry of Labour or competent court to reinstate her in work? 3- Is she legally entitled to transfer to a new school without the need for No Objection certificate from the existing sponsor? Answer: The first query was answered that as per the law she may not be dismissed during leave. This can be considered the dismissal as arbitrary by the competent court. The school management will be obliged to compensate the questioner. In such case, her maternity dues will not be affected. The questioner is entitled for all of her rights of the maternity leave. However reinstatement can not be asked as the law does not oblige anyone to reinstate an employee. In the case questioner seeking job in other school she does not require a no-objection certificate from the current sponsor. Query #3: Contract Ratification in Real Estate The questioner rented a property in Sharjah from a real estate office without any contract. 1- Who is legally responsible for the ratification of the contract 2- Is there a penalty for not ratifying the contract? And who is responsible for it? What is the nature of the penalty? 3- What is the legal period for ratification? 4- Is there any need for ratification of the tenancy contract? Answer: The law no 2 of 2007, regarding the organisation of relationship between the tenant and landlord in Sharjah, obliges the landlord to ratify the contact unless agreed otherwise. If the tenancy of contract is not ratified within 15 days, it will result in penalty triple the amount of ratification by the party obliged to ratify. The questioner was asked to apply to the execution judge and ask him to direct the landlord to ratify the tenancy contract provided that there is no provision in the contract stating the tenant is obliged to pay the ratification charges. Read More