Sunday, November 21, 2010

Termination of Unlimited Employment Contract in UAE- Frequently asked questions

Termination of the employment contract by worker: article (117).

1. I am employed under a labor contract of unlimited period, and I want to leave my Present job. What should I do?
This labor should submit his written resignation letter…And should mention in it that he want to work for a period of one month only, and this one month period shall represent the notice period fixed in one month.
2. I have terminated the service of one labor employed with me under a labor contract of unlimited period; do I need to give him a notice of one month?
Yes… because, based on Article No. 117, if the employer is desirous to terminate the service of any of his employees, he should do so in writing and should give him a notice of one month as per the law…except in case of termination pursuant to Article No.120
3. I am employed under a labor contract of unlimited period…and I receive my salary on per diem basis…, how can I send a notice to my employer in case I have submitted my resignation? Article No. 117
The notice can be send by per diem labors as follow:
1- If the labor has worked for a period exceeding 6 months and less than one year, he should sent a notice of (one week) to his employer.
2- If the labor has worked for a period not less than one year, he should send a notice of (two weeks) to his employer.
3- If the labor has worked for a period not less than five year, he should send a notice of (one month) to his employer.
* Example (1): A labor with a labor contract of unlimited period, who worked with his employer for a period of 7 months for a salary of DHS. 25/day…If such worker needs to resign, he should give a notice of one week to his employer commencing from the date of his resignation letter
* Example (2): A labor with a labor contract of unlimited period, who worked with his employer for a period of one year for a salary of DHS. 30/day…If such worker needs to resign, he should give a notice of two weeks to his employer commencing from the date of his resignation letter
*Example (3): A labor with a labor contract of unlimited period, who worked with his employer for a period of five years for a salary of DHS. 50/day…If such worker needs to resign, he should give a notice of one month to his employer commencing from the date of his resignation letter *Example (4): A labor with a labor contract of unlimited period, who worked with his employer for a period of three years for a salary of DHS. 20/day…If such worker needs to resign, he should give a notice of two weeks to his employer commencing from the date of his resignation letter
4. If the employer or the worker refused to receive the termination or resignation letters, how can we proof the same?
- Both parties should resort to the Labor Relation Department…As for the worker, he should continue in performing his duties in case he has submitted a compliant.
5. I have submitted my resignation letter to my employer, knowing that I am working under unlimited labor contract, do the said one month notice to be calculated within the total service period? Article No. 118
- Yes, such period shall be calculated within the total service period provided that the worker has actually worked within the said period
6. I have worked during the notice period of one month after I have submitted my resignation letter… And after the notice period has expired, my employer asked for an extension of the notice period without any reason. Shall he have the right to do the same?
The employer may extent the notice period after the worker has completed his work in that period, but the same should be under the consent of both parties.
7. I have submitted my resignation letter to my employer, knowing that I am working under unlimited labor contract besides, we have already, me and my employer agreed to reduce the notice period, what shall be my legal position in such a case?
The one-month notice period may neither be reduced nor may the month period be relieved from even if the same has happened under the consent of both parities… but the respite period may be increased, (the month notice)
8. How can the month notice allowance be calculated if the worker has submitted his resignation letter or if the employer has terminated the service of the worker…and the worker has already done his duties during the said period?
- It shall be calculated based on the last salary received by the worker.
* Example: A labor with a labor contract of unlimited period, and who worked with his employer for a salary of DHS.2000… but at present time, he receives DHS. 3000 as the employer has increased his salary- In this case, the worker shall have the right to receive the one month notice salary based on the last salary he received from his employer which amounts to DHS. 3000
9. I have worked with my employer for a period of one year under a labor contract of unlimited period, yet I have submitted my resignation letter… and I have worked during the notice period of one month, but it was stipulated in my labor contract that if I submitted my resignation, I should work for 3 month as a notice period…Do I need to be bound to such condition?

- Yes, the labor should be bound to the one month notice period, (3 months), if his contract so requires.

10. In case the worker has submitted his resignation letter, but he suddenly ceased working before completing the one month prescribed notice period, what shall be the legal action in this case? Article No. 119
 If the worker didn’t work during the notice period or if he didn’t complete the prescribed period…he should, in this compensate the employer with an allowance called: (the notice allowance) and this shall be through the last salary received by him from his employer.
11. In case the employer has terminated the worker’s unlimited labor contract and didn’t ask the said worker to work during the notice period…, or if he has reduced the notice period, then What shall be the legal action towards such case?
- If the employer has terminated the service of his employee, he should, in case he is not desirous to avail the work of his employee during the notice period, pay to the worker the one month notice period’s salary based on the last salary received by the worker. And in case the employer has terminated the service of his employee after the later has worked for a limited period from such notice period, then the employer should compensate his said employee for the remaining period.
* Example: The employer has terminated the service of his employee, whereas such employee has worked for 20 days from the one month notice period, but the employer has asked him to cease working…In this case, the employer has to compensate the worker also for the remaining period which amounts to 10 days.
12. A worker was terminated by the employer after the former has worked for 11.5 months…whereas the employer has paid him the value of the one month notice period, do such worker deserves the end of service gratuity?
The worker shall not have the right to obtain the end of service gratuity as he didn’t work during the one month notice period.
13. If the worker has submitted his resignation letter and was ready to work during the one month notice period…and the employer has waived such period, do such worker deserves the allowance of the one month notice period?
 Yes, he shall have the right to claim for the allowance of the one month notice period.

14. In case the worker has submitted his resignation letter and took a leave… or resigned during such leave period…shall the said one month notice period become invalid?
 No, it shall not become be invalid and the worker should work for the one month notice period.
15. May the employer terminate the worker without notice? Article: (120)
 Yes it is possible in some cases including:
1- If the worker has impersonated a false personality or nationality or if he has presented forged documents or certificates.
2- If the worker is still in the probation period and was dismissed within or at the end of such period.
3- If the worker has committed a mistake out of which a great loss has resulted to the employer…provided that such employer has already reported this case to the Ministry of Labor within a period of 48H from being informed by the incident.
4- If the worker has violated the work safety instructions or the work place, provided that such instructions were in writing and displayed in a prominent place.
5- If the worker hasn’t performed his main obligations as per the labor contract…and continue in so doing in spite of a written investigation made with him for this purpose and of noticing him not to repeat this violation, otherwise he shall be liable for termination.
6- If the worker has been finally adjudged by a competent court for a crime damaging honor, general morals or for breach of trust.
7- If he had disclosed the company’s confidential information.
8- If he was found drunk or using drugs during the work hours.
9- If he had assault his employer, the manager in charge or any one of his colleagues during the work hours
10- If the worker is absent without presence of reasonable cause, for: - More than discontinuous 20 days during the year.- More than 7 continuous days.
Note: In all the above cases, the employer should prove the occurrence of the relevant incident.
* Example: I have worked with my employer…and he has accused me for the crime of breach of trust…an investigation in the matter was carried out and as a result I was finally adjudged for a fine and imprisonment… ACCORDINGLY, the employer terminated my service…so I am claiming for the amount of the notice period and the compensation such termination.- The worker shall not have the right to have the amount of the notice period based on Article: 120 of the labor law as such worker was dismissed as a result of breach of trust…so the employer shall have the right to terminate him without notice.
* Example: I have been absent from duty for more than 7 continuous days…when I am back to work, my employer dismissed me without any reason… I am claiming for the amount of the notice period.- The worker shall not have the right to have the amount of the notice period if he was absent without reason for 7 continuous days… but if he has any reason, such as an approved sick leave, his employer shall not have the right to dismiss him.

16. If the employer is having a right to dismiss the worker without notice…, shall such worker have the right to leave the work without a notice? Article: 121:
 The worker may have such right in the following two cases:
* If the employer has violated his obligations before the worker with respect to the terms provided for in the contract and the law.
* If an assault had happened against the worker from the employer or from his representative.
Note: The worker should prove the occurrence of both cases.
* Example: I am working with my employer… but he didn’t pay me the salary of 3 months…so I have left the work…but my employer is claiming for the notice period?
The employer shall not have the right to claim for the notice period as he has violated the law and the labor contract based on Article: 121
17. My employer has dismissed me without any reason after I have passed the probation period… do such dismissal considered arbitrary? Article: 122
 If the employer has dismissed the worker, after the probation period without any reason, or if the reason of such dismissal has no connection with the work or if it is due to a complaint to the concerned authorities against the employer or for a case filed against the employer…then such dismissal shall be considered arbitrary.
18. If the employer has arbitrary dismissed me without presence of any reason and I am damaged due to the same…how can such damage and arbitrary dismissal be determined?
Article: 123 The competent court is the party which adjudge the employer to pay the compensation for the worker…and it is the party which estimate the value of such compensation as per the work nature and size of damage incurred by the worker in addition to his period of service…provided that the compensation value shall not exceed the salary of 3 months calculated on the basis of last salary received by the worker.
19. The employer has terminated my service due to the fact that I am not fit from the health point of view, shall he have the right to do the same? Article: 124:

 He may not have the right to do the same for health reasons before the worker has utilized all his legally due leaves. However any agreement or condition contrary to this Article shall stand null and void.

20 Can I have the right to obtain an experience certificate after I have spent my work period with my employer? Article: 125:
The employer should give the worker, on the basis of the later request, and at the end of his contract period, a free experience certificate…such certificate should include:
A- Date of joining the work
B- His contract expiry Date.
C- Total service period
D- Type of work.
E- Last salary obtained in addition of other entitlements, if any.
* The employer should also give back to the worker all his certificates, tools and equipment, if any.
21. I have worked with my employer, but he have sold the establishment for some other person…how can I obtain my work dues? Article: 126:- Based on Article: 126, the service shall be continuing even if the establishment was sold to any other person…both new and old employers shall be jointly responsible for a period of 6 months…and after this period the new employer should bear the responsibility alone.

* Example: An establishment was sold by the original employer to some other person, but the original employer didn’t settle the labors dues…then 3 months were elapsed since it was sold to the new employer…in this case both the new and old employers shall be jointly obliged to pay the workers dues…and after 6 months the new employer shall bear such responsibility alone.

22. I have signed the labor contract…whereas mentioned in the said contract a term which stipulates that after the expiry of my service or during suspension of my work, I should not work with any other competing company for a period of two years?
 Article: 127:- If it was agreed in the labor contract as such…then the worker should be bound to the same…and should not work with any competing company all through the period mentioned in the contract… provided that:
1- The worker should be of 21 years of age when the said contract was concluded.
2- To fix the time…e.g.: Not to work with any competing company for a period of two years from the date of cancellation.
3- To fix the place…e.g.: Not to work with any competing company in UAE…or any particular Emirate.
4- Type of work… e.g.: In the same company’s field of work… or the same job.
* Important:The condition of non- competition was not stipulated in the labor contract approved by Ministry of Labor, but it was mentioned in the labor contract concluded abroad or in the internal labor contract concluded between the two parties or in the work offer, do this be valid?