Am I entitled for bonus, leave salary after resignation in UAE?
An employee is entitled for annual leave salaries on the number of annual leave days which was not availed by him.
Q: I am working as senior software engineer for a telecom company in Abu Dhabi for around 3.5 years in unlimited contract. I am planning to resign and join in another company as the salaries and other benefits are delayed continuously. I have two questions:
a) For us, the annual leave is in working days, not in calendar days. I have around 22 annual leave days (working days) pending as of now. When I resign, do the company has to pay one-month salary additionally for the pending leave days (21 working day is approximately one month)?
b) In 2018, the company promised us that they will be paying bonus. While I was on vacation last December, my manager informed me that I am entitled to get one and half month salary as bonus for my performance. He mentioned it in his message approved by the management. But I have not received this money or any letter from the HR department so far. My manager keeps saying that it will be processed by July or September, as the company is currently having some financial issues. If I am resigning from my position now, how can I get the approved bonus? If my employer rejects to pay that, can I file a case against them using the WhatsApp messages from my line manager? I want to know whether the company is bound to pay the bonus or not if I resign?
A: Pursuant to your queries, we assume that you are employed in the private company based in the mainland of Abu Dhabi and therefore your employment may be governed by the provisions of the Federal Law No. (8) of 1980 regulating Employment Relations in the UAE (the 'Employment Law') and the subsequent ministerial orders issued from time to time.
You are entitled for 30 days of annual leave upon completion of every year of employment with your employer. Even though your employer calculates the annual leave based on working days you shall be entitled for 30 calendar days as annual leave. This is in accordance with Article 8 of the Employment Law, which states, "The periods and dates prescribed in this law shall be calculated according to the Gregorian calendar. For the purpose of the provisions of this Law a calendar year shall be deemed to consist 365 days and a month of 30 days, unless otherwise specified in contract of employment." Since you have 22 working days of annual leave we assume that this is equal to 30 days of calendar days per year keeping in mind that you work five days in a week.
An employee is entitled for annual leave salaries on the number of annual leave days which was not availed by him. The annual leave salary accrued shall be payable upon termination of employment contract and shall be part of the end-of-service entitlements.
This is in accordance with the Article 79 of the Employment Law which states: "An employee who is dismissed or who leaves his job after the period of notice prescribed by law shall be paid for any accrued annual leave days. Such payment shall be calculated on the basis of the employee's remuneration as on the date when the leave became due".
It may also be noted that the Employment Law is silent related to payment of bonus to the employee and therefore payment of bonus is at the discretion of the employer.
However, if the contract of employment specifically states the payment of bonus, then the employer is under an obligation to pay bonus to an employee. This is in accordance with Article 1 of the Employment Law which defines 'remuneration' as "all payments made to an employee whether on yearly, monthly, weekly, daily, hourly, piece meal, output or commission basis, in return for his service under an employment contract, whether such payments are made in cash or kind".
"Remuneration shall include the cost of living allowance. It shall also include any grant given to an employee as a reward for his honesty or efficiency, provided such amounts are stipulated in the employment contract or in the firm's internal regulations or are being so customarily granted that the firm employees regard them as part of their remuneration and not as donations."
It may further be noted that if the payment of bonus to employees is a custom or practice prevailing in the company for a long period of time, then the employee may claim bonus from his employer. Therefore, you may contact the Ministry of Human Resources and Emiratisation (MoHRE) in the event of a dispute with your employer pertaining to the non-payment of bonus. Further you may present the WhatsApp messages before the authority concerned to be used as evidence. This is in accordance with Article 12 (1) of Law of Electronic Transactions and Commerce Law No. 2 of 2002 (the 'Electronic Transactions Law'), which states: "Nothing shall prevent the acceptance of an Electronic Communication or Electronic Signature as proof:
(a) Solely on the ground that the communication or the signature was electronic in its form.
(b) Solely on the ground that the communication or the signature was not original or in its original form, if such electronic communication or signature is the best evidence that the person adducing it could reasonably be expected to obtain."
Based on aforementioned provision of law, your communication on WhatsApp messenger with your line manager pertaining to the payment of bonus may be used as evidence before the MoHRE or later in the competent court in the UAE to prove that you are entitled to bonus from your employer. However, the employer may contest that the concerned line manager had no authority to grant/allot bonus to his employees.
Ashish Mehta is the founder and Managing Partner of Ashish Mehta & Associates. He is qualified to practise law in Dubai, the United Kingdom, Singapore and India. Full details of his firm on: www.amalawyers.com. Readers may e-mail their questions to: firstname.lastname@example.org or send them to Legal View, Khaleej Times, PO Box 11243, Dubai.