Dubai: If your employment contract was re-negotiated during the COVID-19 pandemic, would you be considered a ‘new employee’ if you sign a revised contract? And can the company put you on probation once again after the new contract comes into effect? A Gulf News reader wrote in with his experience of working with a UAE-based company, asking if such a practice was within the UAE’s Labour laws.
He said: “I have been employed with a company in Dubai since May 2013 and completed the six months' probation period in November that year. Last year, however, my company terminated my service due to the impact of COVID-19 on businesses. Even though my last working day was supposed to be in July, they cancelled the termination on condition that my salary would be reduced by 25 per cent, to which I agreed. Accordingly, I am considered as a new employee. However, there was no documentation in this regard and they paid me my gratuity and end of service benefits in the month of December. In January, 2021, I was detected positive for Covid-19 and was on sick leave for 15 days. However, the human resources department told me that I am not eligible for sick leave as I am still in the probation period of six months. The company didn't at any point of time inform me that I am supposed to serve a probation period. Please advise if this is legal and if my employer can enforce two probation periods on the same employee, that too without any break in the service period.”
Gulf News raised the query with Patricia Antoci, legal adviser at UAE-based law firm Elnaggar and partners, who spoke about what the Labour Law says as well as the best course of action someone should follow when they find themselves in such a situation.
Does a revised contract mean you are considered a new employee?
Antoci said: “Even if the employer has decided to terminate the employment relationship, followed by revoking such a decision and replacing it with new employment conditions - like the reduced salary - the employee may not be considered a ‘new employee’. The fact that the end-of-service gratuity was paid has nothing to do with considering the employee as a new one. The employment term has not been interrupted. What happened can be interpreted as a change in the employer's financial obligations towards the employee, as per the parties' mutual agreement. It must be mentioned that it is also fair to be compensated for the past years based on the past salary conditions and to start afresh for the end-of-service calculations going ahead, based on the new agreement. However, such facts should not affect the status of being an employee of the company since he had joined in 2013.”
Even if the employer has decided to terminate the employment relationship, followed by revoking such a decision and replacing it with new employment conditions - like the reduced salary - the employee may not be considered a ‘new employee’.
What does the law say?
Article 37 of the UAE Labour Law clearly states that the worker cannot be placed on probation more than once with the same employer.
Article 37 of UAE Labour Law
The employee may be appointed for a probationary period not to exceed six months, and the employer may terminate the services of the employee during this period without giving a notice or end of service remuneration. Appointment of the employee on probation basis in the service of one particular employer may not be made more than once. However if the employee passed the probationary period satisfactorily, and remained in service, such period of service shall be computed in the period of his service.
What to do next?
While the employee is within his or her rights to file a complaint with the relevant authorities, Antoci advised trying to find an amicable solution with the employer first.
“It is of utmost importance for the employee to negotiate and raise all his queries and concerns to his employer, stressing on the employees' rights provided by the Labour Law. If the desired outcome of the employee is to continue his relationship on good terms with the employer, first such a matter has to be brought to the employer's attention in an attempt to negotiate with them in the best interest of all parties involved. Only when such internal negotiations between the employer and the employee fail, the next resort can be to file a complaint,” she said.
How can I file a complaint?
UAE-based employees can file labour related complaints with the Ministry of Human Resources and Emiratisation’s (MOHRE) Twa-fouq centres.
Twa-fouq service centres function under the management and direct supervision of MOHRE. The centres primarily aim at reaching an amicable settlement between employers and employees when a labour complaint is filed by either of the two parties.
The centre investigates the complaints and provides recommendations to the Ministry for approval and to take a decision on the dispute resolution. If a settlement is not reached, the centres refer the case to the Labour Court.
To read a detailed guide on Twa-fouq centre locations and the complaint resolution process followed, read our detailed guide here.