Dubai: If you are working under a full-time contract and have conducted one year of continuous service, you are entitled to gratuity as per the UAE Labour Law. But what happens if your employer calculates your employment period from the date that your employment visa was issued and not the day you officially started working? A Gulf News reader wrote in seeking clarification on this matter.
They said: “I joined my previous company on February 7, 2021, and my visa was stamped on May 3, 2021. I resigned from the company on February 10, 2022, after serving a notice period of 30 days. My employer is refusing to give my gratuity stating I have not completed 12 months since my visa got stamped in May.
“The employer has also deducted Dh5,250 from my settlement, stating that I have breached the work contract. I resigned from this company due to late salary issues. My employment contact period was three years in total.”
Gulf News raised the query with Dubai-based lawyer Ludmila Yamalova, who is the Founder and Managing Partner of HPL Yamalova & Plewka DMCC to find out whether the term of service is calculated from the date the employment visa is stamped on the passport of the day the employer starts working.
She said: “Legally, the term of your employment starts when you start working, not from the time of the visa stamping. So, if you have documentation to show that you were working from your actual day, you will have worked a full year. Therefore, you would be entitled to end-of-service payment.”
Yamalova added that the reader is not required to pay any amount of money as penalty, since they have not breached their contract.
“Also, there is no penalty for resigning under the new law [Federal Decree-Law No. 33 of 2021]. So, you should not be paying anything to the company. Furthermore, if you resigned because your salary was not being paid, this gives you the right to resign without notice,” she said.
Legally, the term of your employment starts when you start working, not from the time of the visa stamping.
Can the reader take legal action?
According to Yamalova, this is the recommended course of action the reader can take to ensure their legal rights:
1. State your position to the employer and request payment of your dues and visa cancellation.
2. If the employer refuses, in particular, to cancel your visa, you should file a complaint with the Ministry of Human Resources and Emiratisation (MOHRE) or the equivalent authority for your company (in case of a free zone) - and make the same claims - the payment of your dues and visa cancellation.
3. According to Yamalova, there will then be a mediation process. If it is unsuccessful, the authority will issue a No Objection letter to raise the issue with the relevant court. Then, you can file a labour complaint with the labour court. "This you can and should do online," Yamalova added.
Yamalova added that the application should be submitted in Arabic, including the supporting evidence. "The court proceedings are entirely online, including hearings, and they move very fast. So, you may have a decision in just a few weeks," she said.
How to file a labour complaint
There are three ways a worker or employer can file a labour complaint with MOHRE; through the Ministry’s hotline on 800 60, the MOHRE mobile application or visit the official website www.mohre.gov.ae and select the option for filing a labour complaint.
If you are filing the complaint online, you would need to create an account if you are choosing the second and third option. You would need your passport details and work permit (labour card) number to do so. Find out how to access your employment details online here and the step-by-step process for applying for a labour case here.