Coronavirus in UAE: Employer can't dismiss worker while he is on leave
An employer may terminate an employee on various grounds.
By Ashish Mehta
Published: Sun 22 Mar 2020, 1:15 PM
Last updated: Sun 22 Mar 2020, 9:02 PM
Q-Considering the Covid-19 pandemic and the crisis it has unleashed, my employer is implementing contingency measures by instructing its employees to take unpaid leave. It's actually being forced on us. The company is asking its staff to fill out a waiver letter addressed to their employer, which stipulates that the employee is voluntarily availing of the unpaid leave. It also says that the employer may choose to extend the unpaid leave when it deems it necessary. The aforesaid waiver letter further stipulates that the employee agrees to be made redundant if the duration of the unpaid leave exceeds six months. Is it legal to do so?
We assume that your employment with your employer is governed by the provisions of the Federal Law No. (8) of 1980 regulating employment relations in the UAE (the 'Employment Law').
Pursuant to your query, it may be noted that an employer may terminate an employee on various grounds including but not limited to disciplinary actions, poor performances, long-term health issues and genuine economic challenges faced by the employer. However, an employer shall not terminate an employee while he is on leave. This is in accordance with Article 90 of the Employment Law, which states:
"Without prejudice to the instances in which an employer is entitled to dismiss an employee without notice or without the gratuity provided for in this law, an employer shall not dismiss an employee or serve a notice of dismissal on him while the employee is on a leave provided for under this section."
Whereas, you have mentioned that the waiver letter contains a stipulation which allows the employer to terminate its employee if the duration of the unpaid leave exceeds six months, it may be noted that if an employer is undergoing genuine financial difficulties and if it is able to prove that its deteriorated financial position due to prevailing natural calamity-pandemic health crisis has compelled it to take contingency measures, then the employer may terminate the employee. It may further be noted that the Employment Law is silent on termination due to pandemic health crisis.
However, in continuance it should be noted that the employee must voluntarily sign the waiver letter. The employer cannot force or coax its employees to sign the waiver letter as it is a criminal offence to do so. This is in accordance with Article 397 of Federal Law No. (3) of 1987 related to issuance of the Penal Code, which states:
"Shall be sanctioned to term imprisonment, whoever obtains by force or threat a deed, a signature on it, amendment or cancellation thereof or destruction."
Based on the aforesaid provision, if the employer has forced an employee to sign a waiver letter, he/she may initiate a criminal complaint against the company.
In view of the foregoing, an employer may terminate employment, if the employee voluntarily issued the waiver letter and the termination was effectuated after the fulfillment of the condition stipulated in the document. However, if the termination takes place without the fulfillment of the condition stipulated in the waiver letter or for the reason that the employee is not willing to sign it, then the employee may approach the employer and request to be compensated for arbitrary dismissal, if such termination is considered arbitrary by the courts.
Know the law
If an employer is undergoing genuine financial difficulties and if it is able to prove that its deteriorated financial position due to prevailing natural calamity-pandemic health crisis has compelled it to take contingency measures, then the employer may terminate the employee
Ashish Mehta is the founder and Managing Partner of Ashish Mehta & Associates. He is qualified to practise law in Dubai, the United Kingdom 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