Legal View: Termination during probation

Read on to find out what happens if during your probation period you are suddenly sacked by the employer.

I rented out my apartment to a female tenant in the Dubai Marina area. Subsequently, the rent cheques given by her bounced one after the other. I filed a police case against her but she refused to report to the police station. I initiated a court case against her at the Dubai Courts (and paid Dh5,000 to file the case), however, the tenant never appeared for any of the hearings. Pursuant to the case, the tenant was ordered to pay the rent for the leased premises, but no eviction order was passed against her. Now what do I do? I went to the police station and found out that she had a few more cases against her. How do I get my apartment back?
Pursuant to your question (as per my understanding), it may be noted that since you have secured an order of payment of the outstanding rent for the leased premises, you have the right to execute or enforce the order against the judgment debtor,  which in your case is the tenant.
   It is presumed that this order of the court is from the court of first instance.
It is learnt that usually in matters of tenancy, orders for payment of rent are accompanied by an order for summary execution of the order. However, if there is no order for summary execution of the court's order, you may seek an execution of the court's order by way of an executive deed.
This is in accordance with Article (225) of the Federal Law No 11 of 1992 On the Issuance of the Civil Procedures Law (the "Civil Procedure Law") which states: "1. Compulsory execution may not be effected except by an executive deed for an existing right to a specific amount and matured payment.
2. Executive deeds are:
a) Judgements and orders.
b) Instruments authenticated according to the law regulating the authentication and attestation.
c) Minutes of reconciliation confirmed by courts.
d) Other papers that acquire such capacity by law."
In cases other than those accepted under the law, the execution may not be made except by a transcript of the executive instrument in the following execution text: "The competent authorities and bodies shall effectively execute this instrument and assist in executing it whenever they are requested to do so."
3. The executive instruments shall not be executed if abandoned for a period of fifteen days from the date of the last executionary transaction or if fifteen days pass following such a transaction without their being executed."
Further it may be noted that upon the passing of an execution order against a judgement debtor, the person concerned must repay his debt within fifteen days. This is in accordance with the provisions of Article (239) of the Civil Procedure Law which states: "Article (239)
1. Execution shall be preceded by summons of the execution deed according to the procedures of summons prescribed under this law.
2. The summons shall include a statement of the debt, and the debtor's charge to repay it within fifteen days of the date he was notified. It shall include the designation of a selected domicile for the person who applies for the execution at the court circuit where the execution is conducted, if his original domicile, his place of work or his selected domicile does not exist therein."
Pursuant to the foregoing, if the tenant still fails to pay, you may seek other remedial measures against the tenant for non-payment.
However, if you are seeking eviction of the tenant, you may file an appeal at the appropriate court against the order of the Court of First Instance.
You may base your appeal on the provision that a landlord may ask for eviction in the event the tenant fails to pay his/her rents.
This is in accordance with the Article (25) of the Law No (26) of 2007 Regulating Relationship between Landlords and Tenants in the emirate of Dubai (as amended by the Law No 33 of 2008) which states: "1. Landlord may demand eviction of tenant prior to expiry of tenancy period in the following cases:
a. If tenant fails to pay rent value, or part thereof, within thirty (30) days of the landlord's notification for payment; unless parties agreed otherwise."
However, if you seek to have the property under your possession, you must serve a written notice to the tenant to that effect. Such notice must be served at least twelve months prior to the anticipated date of eviction and must be sent through the Notary Public or by registered mail.
 The provision as such is described under clause 2 of Article (25) of the Tenancy Law which states:"Landlord may demand eviction of tenant upon expiry of tenancy contract limited to the following cases:
a. If the owner wishes to demolish the property for reconstruction or to add new constructions that prevent tenant from benefitting from the leased property, provided that necessary licenses are obtained;
b. If the property requires renovation or comprehensive maintenance which cannot be executed while tenant is occupying the property, provided that a technical report issued by Dubai Municipality or accredited by it is to be submitted to this effect;
c. If the owner of the property wishes to recover the property for use by him personally or by his next of kin, provided that he proves that he does not own a suitable alternative property for that purpose;
d. If the owner of the property wishes to sell the leased property;
In view of foregoing, it may be advised that you may seek eviction of your tenant provided you serve notice for the same a year before the anticipated date of eviction.
We further advice you to take the help of a legal practitioner in Dubai who may provide comprehensive counselling and litigation support in this regard.
Termination during probation
I am working in a salon in Abu Dhabi as a beautician since January 2015. But the visa issuance date is Feb 3, 2015 in my passport. I just want to know about my probation period. If my employer cancels my visa during this probationary period, am I going to face a ban? I feel its unfair if during your probation period you are suddenly sacked by the employer and then the Ministry of Labour puts a six-month ban on you. How can one find another job in that kind of a situation? I have read the labour law on the Internet but it is not clear regarding the ban in case if the employer terminates the employee or if the employee resigns during this period. Hope you can help clarify this point.
It is presumed that your employment is subject to provisions of Federal Law No. 8 of 1980 regarding Regulation of Labour Relations (the "Labour Law".
Pursuant to your question (as per ) on the exact period of your probation, it may be noted that a period of probation shall be effective only once in the course of an employment for a maximum period of six months.
 This is in accordance with Article 37 of the Labour Law which states as follows: "A worker may be engaged on probation for a period not exceeding six months, during which his services may be terminated by the employer without notice or severance pay. Where a worker successfully completes his period of probation and remains in his job, the said period shall be reckoned towards his period of service."
Pursuant to the foregoing, you may refer to the template of the Ministry of Law, UAE which may be taken as the date of commencement of employment. 
Further, it may be noted that should your employer terminate your employment contract during the probation period, you may not take up the employment with any new employer for one year. Article 128 of the Labour Law states: "Where a non-national worker leaves his work without a valid reason before the expiry of a contract for a limited period, he may not, even with the employer's consent, take up other employment for one year from the date on which he left his work.
 It shall not be lawful for any other employer to keep him in his service before the expiry of such a period."
However, if your current employer is willing to provide you with an NOC to work with another employer then there will be no labour ban. But in case, your employer is not willing to provide the NOC and wishes to cancel your employment contract, the Ministry of Labour may impose a labour ban on you.
Alternately, it may be noted that no employment ban will be imposed on you, if after termination of your existing employment contract you are subsequently offered a salary in accordance with your professional qualifications.
This is in accordance with Article 4 of the Ministerial Order No. 1186 of 2010 on "Rules and Conditions of Granting a New Work Permit to an Employee after Termination of the Work Relationship in Order to Move from One Establishment to Another" (the "Ministerial Order") which states: "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 an 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 twelve Dh12,000 at the first professional level, Dh7,000 at the second professional level and Dh5,000 at the at the third professional level."

Ashish Mehta is the founder and managing partner of Ashish Mehta & Associates, Dubai. Readers may e-mail their questions to: news@khaleejtimes.com or send them to Legal View, Khaleej Times, PO Box 11243, Dubai.

• UAE