Deliberate error may cost your job

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Deliberate error may cost your job

Dubai - Disciplinary penalties can vary from warning to dismissal if the mistake makes substantial loss to the employer.

By Ashish Mehta

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Published: Mon 28 Nov 2016, 5:39 PM

Last updated: Mon 2 Jan 2017, 5:16 PM

Can an employer hold a junior clerical level employee accountable for any kind of commercial loss incurred by the company through his work as a data entry clerk, which were assigned to him verbally? However, the data entered is electronically uploaded by his senior. Can the employer withhold his salary? If yes, what recourse can the employee take?
You have mentioned that a junior clerk committed an error, which caused a loss to the employer, but you have not mentioned whether the junior clerk and/or his superior had deliberately committed the error, were negligent in their work or that the error had happened as a consequence of the instructions given to them.
In the event of deliberate mistake or negligence, the employer may elect to impose disciplinary penalties on the employee if the losses are not substantial. This is in accordance with the provisions of Article 102 of the Federal Law No 8 of 1980 on the Regulation of Labour Relations (the "Labour Law") which states -
These penalties can be imposed on the employee if a deliberate mistake causes losses to the employer:
> Warning
> Fine;
> Suspension with reduced pay
(Max. 10 days)
> Forfeiture or deferment of
increment
> Forfeiture of promotion
> Dismissal without prejudice
to severance pay
> Dismissal with forfeiture of
the severance pay.
It may further be noted that an employer may also terminate the employment of an employee without notice in case his act during the course of employment caused substantial material loss to the employer. Article 120(c) of Labour Law reads: "An employer may dismiss a worker without notice if the worker makes a mistake resulting in substantial material loss for the employer, on condition that the latter notifies the labour department of the incident within 48 hours of his becoming aware of its occurrence:The employer may, as part of its internal policy, decide to withhold the salary of an employee, however such an action shall be subject to the scrutiny of the Ministry of Labour and subsequently that of the court of competent jurisdiction. The employer shall be bound to pay all amounts of withheld salaries if the Ministry of Labour or the court of competent jurisdiction may direct the employer to do so.
As a recourse, the employee shall have the right to challenge the decisions of the employer and represent himself before the Ministry of Labour. It may be noted that the ministry may on its own assess arguments from both sides and try to reach an amicable settlement between both parties. However, if there is no amicable settlement of the dispute, either party may seek to proceed to the court of competent jurisdiction for adjudication of the dispute. The employee reserves the right to reject the propositions of the Ministry of Labour and then proceed to the court of competent jurisdiction whereupon the employee may also apply for thorough investigation on the matter through the court.
 Avoiding ban on limited contract
I am a graduate and have been working on a limited contract as a business information clerk with a monthly salary of Dh3,500, for the last one year and 5 months. There are 8 months left until the expiry of my contract. At present, I want to leave for my home country due to an urgent domestic situation, but the company won't grant me leave because I have already used my approved vacations. Please advise me if there is any way to cancel my visa precluding ban?
It is understood that you are a graduate working on a limited period employment contract for approximately one and a half years in the UAE as a business information clerk having a monthly salary of Dh3,500 and we note that your employment contract will expire on September 8, 2016. Further, we understand that you are planning to go to your home country on emergency, but unfortunately your employer is not granting you leave as you had already availed your annual leaves.
Pursuant to your question, with effect from January 1, 2016, there has been a new 'Ministerial Order Decree No. 765 of 2015 on Rules and Conditions for Termination of Employment Relations' come into force.

Know the law
If you and your employer agree to terminate your employment contract mutually or upon fulfilling the legal obligations towards the employer then there will be no labour ban as you have completed more than six months of employment with your employer. Automatic 6-month ban is waived if the employee has skills or professional levels classified 1, 2 and 3 by the Ministry of Labour.
Article 1 (1) of the aforementioned law states: "An employment relation between employer and worker may be terminated as follows:
In the case of fixed-term contracts (approved by the ministry for a term of no more than two years), an employment relation is terminated if any of the following instances occurs:
>The term of the contract expires and the contract is not renewed.
> Employer and worker mutually consent to terminate the contract during the course of its term.
> Either party (employer or worker) acts unilaterally to terminate the contract and complies with the legal steps that are described in clause (4) of this article. The terminating party bears any legal consequences of early termination.
> Either party (employer or worker) acts unilaterally to terminate a renewed term contract, whether renewal has occurred before or after this decree enters into effect, provided the terminating party complies with the following legal steps:
a. Notify the other party in writing of its intent to terminate the contract in accordance with the notice period to be agreed to by the two parties, not less than one month and not to exceed three months. If renewal occurred before this decree enters into effect and the parties had not agreed to a notice period, this notice period shall be three months.
b. Indemnify the other party to the level that was agreed to by both parties, not to exceed equivalent of three months of gross wages. If renewal occurred before this decree enters into effect and the parties had not agreed to the amount of indemnification, this indemnification shall be the equivalent of three months of gross wages.
> Either party (employer or worker) acts unilaterally to terminate the contract without complying with the legal steps that are described in clause (4) of this article, and for no reason of non-compliance by the other party; in this case the terminating party bears any legal consequences of early termination.
6) The employer acts to terminate the contract of a worker who commits any of the violations that are described in Article 120 of the Federal Labour Law."
As per the above mentioned labour regulations, you and your employer may mutually consent to terminate the contract before the expiry of the term. In the case the employer does not agree for mutual termination you can resign from your employment giving 3 months' notice to the employer or by terminating your contract immediately by paying the employer a gross salary of 3 months.
Further, if you and your employer agrees to terminate your employment contract mutually or upon fulfilling the legal obligations towards the employer then there will be no labour ban as you have completed more than six months of employment with your employer. Further, the automatic labour ban of six months is waived if the employee has skills or professional levels classified as level 1, level 2 and level 3 by the Ministry of Labour. Since you are a graduate you fall under the purview of the first professional level, under which Dh12,000 monthly salary is required to take up new employment before expiry of your contract period. It is assumed that your educational certificates are duly attested as per the requirements of the Ministry of Labour.
Article 4 of the Ministerial Order No. 1186 of 2010 states that: "As an exception to the provision of the Item No.2 of Article 2 of this Resolution the Ministry may issue a work permit to a n employee without requiring the two-year period in the following cases:
a) In the event that the employee is starting his new position at the first, second or third professional levels after fulfilling the conditions for joining any of these levels according to the rules in force at the ministry, and provided that his new wage is not less than Dh12,000 at the first professional level, Dh7,000 at the second professional level and Dh5,000 at the third professional level."
 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: news@khaleejtimes.com or send them to Legal View, Khaleej Times, PO Box 11243, Dubai.



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