Legal View: Guidelines on availing leave pay

Mr Zubair, Dubai: Is the service term preceding the issue and enforcement of the UAE Federal Labour Law to be added when calculating the end-of-service payment (Gratuity)? What about the leave periods which I did not avail? I would also like to know about the leave pay? Am I entitled to claim from the employer?

By Compiled By Mustafa Barakat

Published: Sun 16 Mar 2003, 11:10 AM

Last updated: Wed 1 Apr 2015, 10:52 PM

Answer: It is clearly stipulated under the provisions of Article 136 of the Federal Labour Law that no employment situation preceding the date of commencement of this Law shall be regarded as a situation entitling a worker to gratuity unless he is a national, but without prejudice to any rights acquired by the worker under revoked labour legislation or under an employment contract, agreement, by-laws, or work rules of the establishment.

As to the second part of the question, it is established under the provisions of Articles 75, 79 and 78 of the same law that the leave was introduced by the law for issues relating to public order and an employer is compelled to satisfy these obligations:

(i) Two days a month if a worker's period of service is more than six months and less than a year.

(ii) Thirty days a year where a worker's period of service is more than one year.

The worker is entitled to encash the remuneration, namely the basic salary plus the housing allowance, if any, against the unavailed annual leave.

This is permissible under the law in two cases: first, if the circumstances of the work require a worker to continue work during all or part of his annual leave and the leave days are not brought forward to the following year.

Secondly, if a worker is dismissed or leaves his job after the notice period prescribed under the law. In any event, it is unlawful to employ a worker during his annual leave more than once in two successive years.

Service contract

Dr A.T., Dubai: I am a doctor by profession employed by a clinic. Due to my ignorance of the laws of UAE, I was forced to sign some papers by the owner of the clinic. I now understand this was the contract which stipulates that it is mandatory for me to work for a period of four years. It also states that if I leave early, I am supposed to pay a huge compensation. Is there a minimum period that I should work in this clinic? Please advise me on how to deal with this situation?

Answer: We cannot advise you without a copy of your employment contract. However, we would like to summarise as follows: Article 35 of the UAE Labour Law states that a contract of employment shall be written in two copies, one to be retained by the employer and the other by the employee. Your letter indicates existence of a written contract, which is for a period of four years and a limited period contract.

It is mandatory for the employment contract to be attested by the Ministry of Labour and Social Affairs and any special conditions included in the contract, to the extent legally justifiable, are binding both on the employer and employee.

The validity of an arbitrary and financially punitive clause can be challenged before the Court and likely to be unenforceable.

In this regard, please note Article 116 of the law reads: "Where a contract is revoked by the employer for reasons other than those specified, he shall be required to compensate the employer for any prejudice the latter sustains as a result, provided that the amount of compensation shall not exceed half the employee's remunerations for three months or the remaining period of the contract whichever is less, unless the contract contains a provision to the contrary."

By including a compensation clause, your employer is perfectly within the law. Yet, and if your statement is factual, the strategy adopted by the employer is unethical. You may consider the 'pros and cons' of working with such an employer and weigh the consequences of opting out of this employment.

Visa status

Mr M.S.P., Dubai: A friend of mine, employed with a government department left on the pretext of leave, and is now gainfully employed in Australia. His UAE residence visa will expire only in May 2005. Would there be any implications if he chooses never to return to UAE? How can he get his visa cancelled from Australia itself?

Answer: Since your friend has left on leave and has not resumed duties, it is likely that he is declared an absconder from employment.

The authorities have the right to initiate proceedings against an absconder, which will be enforced if he enters the UAE.

It is advisable for him to contact his former employer and request for a cancellation of the residence visa based on a copy of the passport as the visa automatically becomes void if its holder stays more than six months outside the UAE.

Exemption

Mr. S.M., Dubai: I have been working as an assistant accountant for the last three years with a general trading company. My visa was renewed a few days ago. Of late, work conditions have deteriorated and I wish to resign and cancel the visa. If a ban is stamped will I be able to come back to the UAE on a visit visa, as I hold a bachelor's degree?

Answer: As per the Explanatory Note to the Ministerial Resolution No. 30 of 2001, merely possessing a bachelor's degree is not an exemption and only employees belonging to the exempted category can avail of exemptions, if they intend to transfer employment/residence visa to a new sponsor. A bachelor's degree does not entitle you to an exemption. Furthermore, it is highly unlikely that a person who is banned from entering the UAE will be successful in obtaining a visit visa.