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Home > Legal View
 
Leave without pay will affect gratuity

Mushtaq Ahmad Jan / 29 October 2012



I am working with a company here. I have a one-month annual leave. Is the annual leave period deducted from the years calculated for gratuity? What is the leave that will be deucted from the same?

Annual leave is the basic right of an employee guaranteed by the UAE Labour Law. Article 75 of the UAE Labour Law states: “The employee must be granted an annual leave during each year of service which may not be less than: 1.) Two days per month in respect of any employee with more than six months and less than one year of service; and 2.) thirty days per annum in respect of any employee whose period of service exceeds one year. In the event of termination of an employee’s service, he shall be entitled to an annual leave for the fractions of the last year of service.”

Therefore, annual leave should not be deducted from the gratuity period as per the above-mentioned article.  However, Article 132 of the UAE Labour Law mentions that days of absence from work without pay are not included in computing the period of service. Thus, if one remained absent from work without pay, then, that duration will not be counted. Article 132 states: “The employee, who has completed one year or more in continuous service, is entitled to the end-of-service remuneration. Days of absence from work without pay are not included in computing the period of service, and the remuneration is to be calculated as follows:  1.) Twenty-one days’ pay for each year of the first five years of service; and 2.) 30 days’ pay for each additional year, provided that the entire total remuneration shall not exceed two years’ pay.”


Firm can file civil case if contract terms not met

We have an L.L.C company in Ajman since 2005. In December 2010, we signed a subcontract with another company for a work. The work was successfully completed by September 2011 as per the agreement. The contractor has already received full payment from the main contractor, but they haven’t still settled our payment. As per the contract, they were supposed to give us a post-dated cheque. But they are not doing so saying they don’t have money in their account. We are facing a financial crisis now because of the way things turned out. I want to know if there is a legal way we could get them to settle our pending amount. Please advise us as our situation is going from bad to worse.

The UAE law emphasises on the duty to act in good faith in a commercial contract.  Parties are bound to act and fulfil their obligations in the manner mentioned in their contract. Article 246 of the Civil Code states: “(1) The contract shall be performed according to its provisions and in a manner that ensures good faith. (2) The contract shall not be restricted to liability of the contracting party under it, but it shall also include other requirements according to the law, custom, and nature of the transaction”. Furthermore, the standard practice in the UAE courts is that good faith is determined by the contract terms and prevailing facts. The Dubai Court of Cassation ruled in Petition Nos. 93, 132, and 188, 2004, dated 15/05/2005 that “all obligations as stipulated in the contract must be fulfilled by the parties in good faith”.

Therefore, it is your legal right to receive the price of your contract in accordance with the agreement. Since you have fulfilled all obligations by completing the required work, therefore, pursuant to Article 272 of the UAE Civil Code,  you have a right to file a civil case for specific performance of the contract and may also ask the court for reasonable compensation. Article 272 states that “if a party to a contract does not do what they are obliged to do under the contract (the obligor), the other party may, after giving notice to the obligor, require the contract be performed (specific performance) or cancelled. The court may order the obligor to perform the contract immediately or may defer performance to a specified date. The court may also order that the contract be cancelled and compensation paid if appropriate.”


No jurisdiction over divorce granted in another country

I have divorced my wife in the Islamic Shariah court of Pakistan. As per the decision of the Shariah court,  my two-and-a-half-year-old daughter will remain in her mother’s custody up to the age of nine and after that the mother will hand over the daughter to me forever. By profession, my ex-wife is an MBBS doctor and she has got a job in the UAE. Now she wants to bring the baby girl to the UAE without my permission and willingness. I have an objection because I want my daughter to grow up and get early education in Pakistan. In this scenario, can I file child abduction case against her if she brings my daughter to the UAE? She had come to the UAE on a residence visa sponsored by me before divorce. She did not cancel the visa but she stayed out of the UAE for more than one year. Now what legal options do I have to prevent her from entering the UAE with my daughter? Please guide me.

Since the divorce was ordered in Pakistan by a court and the custody of your daughter was given to her by a Pakistani court, therefore, UAE courts do not have any jurisdiction to enforce the judgment issued by a Pakistani court. That matter has to be dealt there in Pakistan.

However, you may apply for cancellation of her visa or file a absconding complaint if she does not cancel it. 


Compiled by Ahmed Shaaban

Mushtaq Ahmad Jan is a lawyer at the Global Advocates and Legal Consultants, with Master Degree in international commercial law, University of Hull, Kingston-upon-Hull, England. Readers may e-mail their questions to: ktedit@emirates.net.ae or send them to (Legal View), Khaleej Times, Dubai P.O. Box 11243.

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