Ask the law: August 31, 2007

Illegal workers cannot file complaint

A reader in Dubai asks: I currently work for a company and I am leaving my job in a few days due to the fact that I am pregnant. I am on my own residence visa. Conveniently enough, my husband has found a job here. Can I remain here with him and can he sponsor me? What are the rules? Will I have to leave the country? Will there be a ban on my passport?

The reader has not clarified enough in her question her relationship with her company; whether it is legal as per the Labour Law or not. However, what I can assume from her enquiry is that she is working for that company illegally. If that is the case, then neither the reader nor the company can file a labour complaint with the Ministry of Labour, due to the fact that the Ministry does not accept any complaint of whatever kind if the labour relationship between the concerned parties of the complaint is in violation of the Labour Law. Moreover, the Ministry in such a case may refer the employer along with the employee to the Public Prosecution on the charge of working for another company other than the sponsor, and in that case the penalty will be in the form of a fine or imprisonment and deportation. Therefore, I advise the questioner to solve the matter with the company in an amicable way.

As for the possibility of the husband sponsoring the reader, that is permitted under the condition that the husband's salary should be a minimum of Dh3,000 with accommodation or Dh4,000 without accommodation, and such procedures can be done without the need for the reader to leave the country.

Passport with court

A reader in Abu Dhabi asks: I am working as a systems analyst for a software company in Abu Dhabi. A case was filed against me by a rival company 3 months back, due to which my passport is with the Abu Dhabi court. The case is still continuing. When I approached the court, they said the case is still going on and will take more then 30 days from now.

My employment visa expired on August 16. It looks like I have to overstay in the UAE until my case is finished (I am confident that I will get a not guilty sentence). My wife is also under my sponsorship.

My questions are: Will the court give any document stating that my passport is with them, so that I can renew my visa later? (My current company is giving me full support and they want to renew my visa). Will there be any problem if my wife stays with me after my visa expires?

As long as the reader's passport is retained with the competent court as pledge for the case, then the reader can submit an application with the court seeking to exchange his passport with another person's passport (guarantor) in order to be able to renew his visa.

If the court dismisses his application then the questioner can request the court - upon finishing the case - to grant him a certificate proving that his passport has been retained by the court. He will be granted such a certificate to be submitted with the competent authority in order to renew his visa. He might be exempted from any late fines related to the same matter. Moreover, I confirm that there will be no problem at all for his wife under the same visa.

Cancellation procedures

A reader in Dubai asks: I have a doubt to clarify about the cancellation procedure of my labour card. Actually my labour card expired on August 4, 2007. But my visa is up to October 10, 2007. I had planned to resign on August 1, 2007. As per the labour rule, I'll be forced to work 30 days after that. If the company cancels my labour card, can I get a grace period of 30 days from the date of cancellation? How many days' salary will I get as gratuity? Can I get any other benefits? Can I get an air ticket from the company? How about my NOC? Will a 6-month ban be implemented?

We would like to state out that the labour card cancellation along with the other cancellation procedures for the employee will be usually processed after the lapse of the notice period and handing back all the company's belongings kept with the employee, if any. Upon receiving all his labour dues of gratuity, the employee shall sign a declaration of the same before the Ministry of Labour. This is the right procedure and the employee shall not come back to work for the company after those above mentioned procedures, except in case the cancellation is done by the company after expiry of the labour card and the employee has been forced to work thereafter as part of the notice period. Then there would be no penalty on the reader since he has a period of one month to leave.

As for the reader's enquiry about the gratuity, as per Article 132 of the UAE labour law: "The labourer who completed one year or more of continuous service will be entitled to gratuity for the days of his service except for days of non-paid leave, and the gratuity is calculated as follows:

Twenty-one days' payment for every year service for the first five years; Thirty days' payment for any subsequent term. However, the gratuity shall not be on aggregate more than two years' wages."

In addition, the gratuity is calculated as per the last salary received by the labourer who is entitled to compensation for overtime, if any along with any bonus, if any and his return ticket to his home town in case of his departure, a compensation for arbitrary dismissal, in case of arbitrary dismissal against the labourer, which will be estimated by the court and also a compensation for the notice period, in case the labourer is not notified as per the Labour Law.

As for the reader's enquiry about the ban upon cancellation, the Ministry of Labour usually applies such a ban of six months, however the questioner may request his employer to provide him with an NOC letter if the questioner desires to transfer to another company.

Changing jobs

A reader in Dubai asks: I have been working with my current employer for the past year and 10 months and am planning to change my job and move to a new career. I currently hold professional company certifications like Cisco & Microsoft. The title on my visa is 'Electrical Occupation'. I have an unlimited contract with my company.

I believe that since my contract is unlimited, my only obligation would be to give a month's notice to my current employer. Can my employer still go ahead and put a ban on my visa?

Due to my certifications and title on current visa, will I be in the exempted category of the ban? Will I still need a NOC from my current employer if the next employer wants to apply for a fresh visa? And in that case, without an NOC, will there be a ban? Even if there is a ban on the employment, can it be revoked by payment of a certain amount? Please help me find answers to these questions as I want procedures to be followed legally.

I confirm to the reader that in his case he can submit his resignation to his company with the obligatory one month's notice as per the Labour Law or as per the notice period as per his labour contract if it is more than one month. However, the Ministry of Labour would apply a labour ban for six months, and consequently the reader will need in this case to request his employer to provide him with an NOC letter to transfer smoothly to another company.

English teacher

A reader in Dubai asks: I am an English language teacher and I started my contract in April. My contract is limited for one year and I am getting many great offers in the UAE, so can I resign from my job and get another job? If I got a new job with the government, can I be appointed easily? Or will I have to finish my contract at any cost?

I advise the reader not to rush into resignation before expiry of the limited contract term, as the reader would - in such a case - be committing a violation of the Labour Law and a ban for one year would be stamped by the Ministry of Labour, if so requested by his employer, in addition to bearing a compensation in favour of the employer for breaching the contract.

However, if the reader has an offer from a government body, then he is advised to approach such body and inquire whether this body will send a letter to the concerned departments in order to seek an exception in favour of the reader to revoke the ban.

Questions answered by Advocate Mohammad Ebrahim Al Shaiba of Al Bahr Advocates and Legal Consultants.

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