Ask The Law - November 28, 2003

Gulf News file Readers' queries answered by Dr Mohammed Khalifa Al Mualla of International Legal Consultancy.


Sacking an employee is illegal if reason is not related to work
A Dubai reader asks: "I was working in a company which terminated my services verbally under strange circumstances. The company later allowed me to look for a job and agreed to give me a release. As a result, I found employment with another local organisation, but the previous company took a long time to settle my dues. I asked them to cancel my visa and pay me later. They have made the mistake of paying gratuity for seven days per year instead of the allocated 21 days, while they also failed to pay me my remaining balance of nine days' leave. I would like to know if I can approach the relevant authority for action. I had worked for almost three years with this company. They have even sent me an email saying that they are going to deduct my remaining leave entitlement to cover a visa status change.

Article 122 of the Labour Law states that a worker's service shall be deemed to have been arbitrarily terminated by his employer if the reason for the termination is irrelevant to the work and, more particularly, if the reason is that the worker has submitted a serious complaint to the competent authorities or has instituted legal proceedings against the employer that have proved to be valid.

Therefore, the cause of termination should be relevant to the work and based on justifiable grounds. Otherwise, such termination would be deemed arbitrary, which allows the employee to claim compensation. The court shall assess such compensation with due regard to the nature of the work, the amount of prejudice he has sustained and his period of service, and after investigating the circumstances of the work.

The amount of the compensation shall not exceed the employee's remuneration for three months calculated on the basis of the last remuneration he was entitled to.

As to the calculation of gratuity, Article 137 of the law stipulates that if a worker who is bound by a contract of unlimited duration leaves his work of his own accord after continuous service of not less than one year and not more than three years, he shall be entitled to one-third of the severance pay (seven days' remuneration where the continuous period of service exceeds three years but does not exceed five years, he shall be entitled to two-third of such severance pay (14 days' remuneration); where the continuous period of service exceeds five years, he shall be entitled to the full severance pay (21 days' remuneration).


Cancelling expired visa
An Abu Dhabi reader asks: "Is it possible to cancel an expired visa without getting a ban and bring the person on a visit if we are willing to pay the fine?

According to the UAE Residence Laws, a work permit should be cancelled once an employment relationship is terminated. In this event, no new work permit or entry visa for the purpose of work is permissible to be issued, only after expiry of six months from the date of leaving the UAE and one year for housemaids. This applies to all professions except certain categories specified in the law, including doctors, pharmacists, nurses and auditors. Nevertheless, an employee who is not included under the category may transfer his employment visa to a new employer provided he obtains a no objection letter issued by the former employer and submits it to the immigration department requesting an exemption from the six-month ban.


Changing visa
Ateeq A. in Dubai asks: "I had my labour card cancelled from my previous employer and got a new visa approved by the Ministry of Labour through my new employer. Now I want to cancel my visa, but my wife is on my sponsorship as her visa expired five months ago. I want to know how much time I'll get from the ministry to exit the UAE after cancellation for me and especially for my wife. Secondly, is it possible that my wife doesn't need to exit the country as I'm now entitled to sponsor my family and the moment I get a new visa stamped on my passport I'll renew my wife's visa? Lastly, how much fine would I have to pay for five months' delay for my wife's visa?

Since you managed to obtain an approval to join a new employer from the Ministry of Labour, we advise you to commence proceedings with the cancellation of your visa, and pay the fine afterwards, and within 30 days you should arrange to complete your transfer of visa procedure with the new employer, so as to be able to sponsor your family who will not be compelled to exit the country provided you complete the said process within the 30 days. As to the fine, submit an application in this respect to the Immigration Department which will calculate the fine considering any surrounding circumstances.


Freelance photographer
An Australian reader asks: "I lived in Dubai from 2000 to 2002 and I'm thinking of returning to the UAE. I work as a photographer now and was wondering if it is possible for an expatriate to work as a freelance photographer in Dubai. If yes, what are the rules regarding sponsorship, visa, etc. and their costs? Do I have to start a business?"

A professional licence must be obtained from the Economic Department, and an office must be opened and a residence visa, sponsored by this office, must be obtained from the Residency Department. The licence will be in the reader's name and a UAE national agent must be hired. The agent will be in charge of all dealings with government departments. He will not intervene in the management and does not have a share in the business. A contract must be signed between the reader and the agent determining the annual salary and benefits. Another option, is to contact the Dubai Media City at info@dubaimediacity.co.ae, which can provide an advanced infrastructure and supportive environment for media-related businesses and allows companies 100 per cent ownership along with commercial benefits that include a 50-year tax exemption from personal, income and corporate taxes.