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Legal View

Saleh Ahmed Al Obaidli / 13 February 2012

Saleh Ahmed Al Obaidli is an Emirati Lawyer at the Hadef & Partners Advocates and Legal Consultants, Associate Member of Dubai International Arbitration Centre and a Member of the Jurists Association, with a Masterís Degree in commercial law, Deakin University, Australia. Readers may e-mail their questions to: news@khaleejtimes.com or send them to Legal View, Khaleej Times, PO Box 11243, Dubai.

Annual average commission to be included in gratuity

I have worked as a doctor in a private clinic since 2004 on an unlimited contract. I get salary plus commission. The commission offer is mentioned in a separate letter signed by the Managing Director. Now the commission is pending. If I have to resign, how much notice period should I serve? What about my end of service benefits? Do I need a release to change my job? Will there be a ban? If so, can it be lifted? If so, how? If they don’t pay the pending commission, can I claim it as they have a given it in the offer letter two years ago?

The notice period you are required to give to the clinic will depend upon the relevant provisions in your contract of employment.

If no specific notice period is mentioned in the contract, the Labour Law stipulates that a minimum of 30 days notice must be given by the party wishing to terminate the contract. It is unusual for a doctor (as opposed, for example, to a salesman) to receive commission. 

However, if the terms on which you are remunerated include commission, and if the Managing Director’s letter is clear and unambiguous on this point, then you will be entitled to all commission earned by you during the period of your employment by the clinic.

Besides, commission payments you will also be entitled to the usual statutory benefits (including salary and allowances to the end date of your period of service, encashed value of accrued but undertaken annual leave entitlement and end of service gratuity), together with any additional benefits provided for in your contract which are as yet unpaid.

If the clinic, for any reason, decides not to pay you the full amount of your commission and all other statutory and contractual benefits to which you have a right, you may bring a claim against the clinic, in accordance with established procedures.

You should further note that, in accordance with recent Cassation Court judgments, supplementary forms of remuneration, such as commission payments (but not allowances), are to be included, on an annualised average basis, for the purpose of calculating end of service gratuity entitlement.

Household employee

I work as a private driver with an Afghani family here in Jumeirah. If I don’t want to renew my visa after a year, is there any labour ban they can seek on me?

If, as it seems possible, you have signed a Ministry of Labour standard employment contract, the “No Objection Certificate” rule may apply to you.

If so, you will be required to complete a period of at least two years service with your present employer before you can change your employment. If, however, you hold a high school diploma and you are able to secure alternative employment at a salary of at least Dh5,000 per month, then the NOC requirement will not apply to you. If you do not have an employment contract registered with the Ministry of Labour, but are classified as a ‘household’ employee of the family, then you are free to move to another job, without fear of any ban being imposed upon you.

Recruitment approvals

My brother has recently signed a contract with a firm here in Dubai. He was in the UAE on a visit visa when he was offered the job, and he accepted it. Does the company have to pay for his ticket to exit and re-enter the country or does this expense have to be borne by the employee? Who should bear the costs of the medical fitness test and all other formalities of visa processing? The company is currently asking him to pay for his medical tests and insurance.

Under the basic rules, it is not permitted for a non-national to enter the UAE on a visit visa and then, in the event that he secures employment here during the course of his stay, to seek registration as an employed person and the issue of a residence visa.

Instead, he must leave the UAE prior to the expiry of his visit visa, and remain out of the country until his prospective employer has received the necessary ‘recruitment’ approvals from the Ministry of Labour and General Directorate of Residency and Foreigners Affairs.  There is, however, an exception to this rule in favour of nationals of certain economically developed countries, like the United States, the United Kingdom, other countries of the European Union, Switzerland, Japan, Australia and New Zealand (but not for the time being Canada). 

Under this exception, nationals of these privileged countries who enter the country on visit visas are able to ‘convert’ their temporary visa into a permanent ‘residence and work permit’, in the event that they find employment during the currency of his ‘short stay’ visit visa.

On the assumption that your brother is not a ‘privileged country’ national and is therefore unable to take advantage of this exception (to the general rule) as outlined above, he will – even if he receives a confirmed offer of employment – have to leave the country, while the company seeks the necessary recruitment ‘approvals’ from the authorities concerned.

As to whether, in the present instance, you brother, or his future employers, would have to pay for his outward and return airfares, this is a question of negotiation between the company and your brother.

However, on the face of it, the reasonable solution would be for the company to cover these expenses.

As regards the medical fitness test and visa processing formalities, these are for the account of the employer and not for the person being recruited.

If the company is indeed asking your broker to pay for his medical tests and (if this is the case) to contribute to staff health insurance cover, arranged by the company, these are signs that the company has low ethical standards and will almost certainly prove to be a bad employer.

The only advice to be given to your brother is that he should either obtain the company’s written commitment to cover all the charges mentioned or to withdraw his employment application and have nothing further to do with the company in question.

Compiled by Ahmed Shaaban

 
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