Dubai: Can a worker take back their resignation after they have sent it to their employer? Can the company reject such a request from an employee? And can the company ask the employee to pay a penalty in such a case? A Gulf News reader wrote in sharing their experience to find out what their rights are in such a situation.
They said: “I was previously a domestic worker. After leaving that job, I started working as a messenger at an office. After four months of work at the company, my boss's relative assigned me a personal task - to drop and pick up a family member from Abu Dhabi. We agreed that my timings would be between 7am to 5pm. After a while, the work hours became longer. So, after four months, I decided to give a one-month notice, saying that I would resign since the working hours were unhealthy. In February, I sent an email to my employer giving them a notice that I will resign, but received no reply. So, I sent another email three days later. A few days after that, I took a leave for four days due to a death in the family.
"When I returned to work the next week, I tried to tell my boss that I would not be continuing my resignation, but he said it was fine that I resign. He said that he would cancel my contract and I would have to pay a month and a half's salary. I told my employer that I cannot afford to pay the amount and I am willing to render my notice. He then sent me an email informing me that this would be my last working day. I cannot afford to pay my employer because I have not received my salary since February. Please help me solve my problem. I'm not sure what to do because the company, not me, breached the contract in the very first place. ”
Gulf News raised the query with Bassel Boutros, an associate at Dubai-based law firm – BSA Ahmad Bin Hezeem & Associates – who stated that since the issue happened in February, it would be governed by the new UAE labour law.
“Since the dispute arose after February 2, 2022 it will be governed by the new Federal Decree-Law No.33 of 2021 on Regulation of Labour Relations and its implementing regulations as per Cabinet Decision No. 1 of 2022. It is important to note that the interpretation of said laws by UAE Courts is relatively new. On the other hand, as it is the case in every disputed matter, in addition to the laws in force many factors will affect the case such as the factual background, supporting documents…,” he said.
Is the reader’s notice period valid?
According to Boutros, it is important for an employee to clearly state in the resignation letter that they send to their employer that they would be serving a notice period.
“If they did mention serving a one-month notice period, then they have the right to claim one-month salary for March as well," he said.
However, if you do not mention that you are serving your notice period, the circumstance will be entirely different.
“Previous court precedent considers that the employee’s resignation will be effective once it has been sent, unless the employee remains in the workplace, based on the employer's instructions. Furthermore, the employee needs to prove this," he said.
If the employee resigns without serving the notice period, the employer has the right to terminate the employment agreement.
Does an employee have to pay 45 days' salary?
If an employee does leave a job without serving the notice period, does he or she also have to pay 45 days' salary as penalty?
Boutros cited Clause 4 of Article 45 – Leaving Work Without Notice - in the new UAE labour law, where it is mentioned that if the employer asked the worker to carry out duties that were different from their employment contract, they may not have to pay 45 days' salary.
He said: “As for the one-and-a-half month payment, the employee can argue that she terminated the employment agreement pursuant to Article 45, clause 4 of the Labour Law, which gives the employee the right to terminate the employment agreement and leave without notice while retaining their rights upon termination of service, since the employer asked them to carry out work which is fundamentally different from the work agreed upon under the employment agreement without obtaining their prior written consent on the work.
“The employee should benefit from this situation, given the fact that the employer asked her for a personal task without obtaining her written approval, particularly since the task is not considered a necessity, as per the provisions of the new Labour Law. We note that in this situation the employee is not under the obligation of notifying the Ministry of Human Resources and Emiratisation (MOHRE) as is the case if the employer’s breach their contractual obligations.”
The employee should benefit from this situation, given the fact that the employer asked her for a personal task without obtaining her written approval, particularly since the task is not considered a necessity, as per the provisions of the new Labour Law.
What are my rights if I withdraw my resignation?
If a worker does plan on withdrawing their resignation, it needs to be discussed and approved by the employer.
Boutros said: “The employee cannot rescind her resignation without the approval of the employer. That is why an employee should be careful before sending their resignation letter to the employer and include the reasons behind the resignation.”
What are the reader’s legal rights in this situation?
According to Boutros, in such a case, an employee can file a complaint before MOHRE clarifying that they left their employment without serving a notice period pursuant to Article 45, clause 4 of the new Labour Law, and ask the employer to settle the following:
- Salary for February.
- Any other entitlements agreed upon between the employee and the employer in the employment agreement.
He added that the employee will not be entitled to the end-of-service gratuity unless he or she has completed a year of service. Also, an employee would not be entitled to an annual leave before completing six months of service.