Ask The Law - September 26, 2003

Readers' queries answered by Rashid bin Shabib of Rashid bin Shabib & Associates Lawyers
& Legal Consultants

End-of-service benefits
Devesh Kuwadekar from Dubai asks: I have been asked to leave my company and will be granted a release. However I have been told I can stay on the company's visa until I get my next job. I haven't given any resignation letter and have not received any termination letter. What are the implications of not having anything in written. Is there anything I can get? How will I get my last month of salary which is not being paid to me? I will not get my end-of-service benefit as it is a precedence. How can I claim it? Would I have to pay money to take the case to a labour court? Are there any other options open to me?

It would be better if you had stated the period you worked with the company. However, according to the Labour Law, if an employee has not tendered his resignation or has not agreed in writing to cancel the employment contract, then the 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.

Your dismissal can be considered as arbitrary or unjustified especially if it came after a serious complaint to the competent authorities or if you instituted legal proceedings against your employer that were proved valid.

Therefore, the cause of termination should be relevant to the work and based on justifiable grounds. Otherwise such termination would be deemed as an arbitrary termination, 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 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 and since the employer had terminated your service, it should be calculated on the basis of 21 days remuneration for each year of the first five years of service.

On whether you can approach any relevant authority for an appropriate action, we would advise you to consult a lawyer as it is necessary to know if any discharge receipt was signed by you as confirmation of receipt of your gratuity, in addition to the finding out the time bar for establishing a legal action.

Ban possibility
Noorjahan of Dubai asks: I am an Indian female executive secretary and have been working for a private company for more than a year. Now, due to large workload, pressure and inadequate level of remuneration, I would like to change my job. I am a masters degree holder and it was attested and used at the time my visa was completed. Will there be any ban if I am quitting and cancelling my present visa?

As per the provisions of the residence law of the UAE, work permits should be cancelled once an employment contract is terminated. In such an event no new work permit or entry visa for work purposes can be issued until a six month period has been served from the date of leaving the UAE.

The said provision is applied to all professions except certain categorised professions specified in the law, including but not limited to doctors, pharmacists, nurses, qualified administrative personnel and auditors.

With your masters degree, you are included in one of the said categories.

An employee who is not included under the stated categories may only transfer an employment visa to a new employer if a no objection letter is issued by the former employer and submitted to the Immigration department requesting an exemption from the six month ban on the respective employee.

Cancelling visa
Miguel Caitano from Abu Dhabi asks: My family is on my sponsorship and I am currently in the process of cancelling my visa without a ban. I have already had labour clearance from my prospective employers. I wanted to know whether I need to cancel my family's visa before my visa as they are still under a valid visa for three years. Can their visa cancellation be kept on hold until I get my new visa stamped, at which point they can be linked to my visa?

Since you managed to obtain an approval to join a new employer from the Ministry of Labour, we would advise you to proceed with the cancellation of your visa. This will involve the payment of a fee and you should then arrange to complete the transfer of your visa with the new employer within 30 days.

You will be able to sponsor your family who will not be compelled to exit the country provided you complete the said procedure within the stated 30 days.

Parents for residence
Alson Lopez of Dubai asks: What is the procedure for bringing parents on residence visa on humanitarian grounds? My monthly salary as in the employment contract is Dh3000 plus accommodation provided by the company. My company has revised my salary but not in the contract. My wife and my baby are sponsored by me and my wife is working in a reputed company. Will they consider our case if I show both our salary certificates together? And If it is not possible can I bring her on a visit visa with the above employment contract?

If your employment visa is issued from Dubai and your salary is the net of Dh5000 then you can only bring your parents on a visit visa. If your salary is Dh6000 or above, you can bring your parents on a residence visa.

In this case a guarantee of Dh5,000 must be deposited with the Naturalisation and Residency Department for each person, with respect of the residence visa. Dh2,000 must be deposited for each person with regard to the visit visa.

If your employment visa is issued from Sharjah, then you can only call your parents on a visit visa no matter how much your salary is. To give you an idea of the process involved I would say that a standard application prepared by the Immigration and Naturalisation Department has to be filled out by you in this regard. A sum of Dh100 should be paid towards the application fees either for the visit or residence visa.

After the ban
Tarun Kumar Gyanani asks: I was in Dubai on a residence visa and received a six month ban after cancelling my visa. Now I am in India and wondered if I may apply for a visit visa to Dubai or any other emirates, in order to enter the UAE?

You may enter on a visit visa, but remember that you cannot re-enter the UAE for the purpose of work until after the end of the ban period.

Visa transfer rules
Sudheer Babu, living in Dubai, asks: I am a civil engineer and my job was terminated after I had worked for a period of six months. Will I receive a ban if I cancel my visa now? And if I get a ban, can I reenter the country with a visit visa? After finding a job in that time, will I be able to transfer my visa to the new sponsor> Or will I be exempted from the ban, if I get a new job before cancelling the visa and then get a no objection letter from the previous sponsor. Will I be able to transfer my visa?

Certain categories of expatriate workers are allowed to transfer to another job and hence transfer their sponsorship. Engineers