Ask The Law - September 5, 2003

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

Employee cannot be deprived of gratuity benefits due to debts
Mohammed Zaheer of Dubai asks: "I am working for a company as an assistant sales manager (even though my labour card still says salesman). I have resigned and served my 30 days notice period and have now found that my manager is not willing to sign my papers for cancelling my previous labour card and visa, all because there are debts and payments outstanding in my name from certain companies and banks. Please let me know if it is legal to do this and whether there is a law which says a worker cannot leave the country without clearing these payments?"

Zaheer asks a question that comes up often. Can an employer deduct any amount owed by debtors from an employee's end of service gratuity? The answer is no.

As per the Labour Law, the employer may only deduct any amount covered to him by the employee such as outstanding loans, from the employees end of services gratuity. If there is any dispute over the payment of gratuity or the amount of gratuity payable, the matter should be referred to the Ministry of Labour for mediation.

An application must be made to the ministry in the emirate in which the employer's establishment is located.

The complaint must be submitted in writing to the ministry's complaints department, setting out a summary of the facts, calculation of the amount due, and enclosing a copy of the employment contract.

The application will be filed with the ministry upon payment of Dh100 as a registration fee. Either party in an employment contract can be summoned to explain their argument at the labour office, which must make a recommendation within two weeks from the date on which the application is filed. Should the party fail to settle the dispute in the manner recommended by the ministry, the matter will have to be referred to the courts.

The ministry will issue a summary of the facts of the lawsuit together with its recommendation and the arguments put forward by both parties within three days of the application being received.

The court will then schedule a hearing date and summon the other party to attend. Employees are exempted from paying court fees. This exemption also applies if an appeal is filed at the Court of Appeal.

However, if a dispute is not settled and the employee involved left the country, a person who is authorised to proceed with court action must pay court fees, which are normally based on a percentage of the amount claimed.

We would advise Zaheer to consult a lawyer in this particular case. But our preliminary advice is that the employer has no right to deprive you of your end-of-service service gratuity.

Residence visa
G.S. Amin from Jamacia asks: I was working with a company in the UAE as sales executive before returning home a year ago. I didn't cancel my residence visa which expired a long time ago. Will I face any problems if I am travelling back or applying for a new visa with another company?

We advise you to send your passport to your previous employer in order to have your existing visa cancelled without a ban. Otherwise, the records will be incomplete and you would indeed face problems when you enter UAE.

Visa transfer
Mohammed Abdul Salam asks: I am a commerce graduate and want to transfer my visa from my previous company for whom I was registered as an accountant. Can I do it while based in Sharjah?

Expat workers may be allowed to transfer their sponsorship, if they fall under certain categories including qualified accountants. Therefore, you may transfer your sponsorship to a new employer, provided you have spent at least one year with the previous employer, plus other conditions you should meet.

These are:
1) Employee should work for the new employer under the same job description as he used with the previous employee.
2) Employee should have a valid residence permit on his passport.
3) Employee should have obtained consent of the previous employee before transfer of sponsorship. Otherwise the previous employer would be within his/her rights to request a ban, preventing the employee from transferring his/her visa.

Fine for overstay
M.S. Kumar of Dubai asks: I am running a business in Dubai and found that I needed to terminate the employment of one member of staff. His visa lapsed and I did not renew it. Following are the dates on which certain procedures were applied: Date of visa Expiry: 02/06/2003; Date of cancellation: 24/06/2003; Date of leaving the country: 16/07/2003. The authorities demanded a fine, saying that he had overstayed. We paid this money and sent the employee back home. However, I am given to understand that we have a space of one month for the visa to be cancelled and the employee is allowed to stay a further 21 days after the visa is cancelled. Can you please clarify my situation and tell me whether this was appropriately handled by the authorities.

Based on these details, the employee should not have been fined for overstaying. Hence, we advise you to make sure the dates provided for each incident are correct and verifiable, before you proceed.

Sponsoring a child
Mirjana Zivkovic of Yugoslavia asks: How can I sponsor a child in Abu Dhabi. I cancelled two residence visas as my salary doesn't meet sponsorship requirements.

According to current guidelines, an expat may sponsor family if he/she earns a monthly salary of not less than Dh3000 plus housing allowance.

Six-month ban
Kapil Grover of Dubai asks: I received a six-month ban from the Residency Department when I resigned from my job as a sales supervisor after three years. My company did not request a ban for me, but it was not willing to give a No Objection Letter allowing me to join another employer. I am a graduate and have now found a job with another company. Please advise me if it is possible for me to get a new sponsor without a No Objection Letter from previous company. Also, can my wife who earns Dh 6,000 sponsor me on a residence visa?

Your wife may not sponsor you on a residence visa, but she may do so on a visit visa. It is not possible for you to transfer your employment visa without the no-objection letter.

Registered marriage
Sreeja Bhaskaran of Dubai asks: Is it possible, for a Hindu man aged 21 to marry a Muslim girl aged 21? Is a registered marriage between the two possible? If yes, what are the procedures. If no, what is the reason?

According to the Islamic Sharia, the law is different for men and women. A Muslim woman may only marry a Muslim man. However a Muslim man is allowed to marry females of other religions including a Christian or a Jew.

Visit formalities
Dr Shashi Govila from Abu Dhabi asks: My 21-year-old daughter is British and has a US green card as she is studying there. She also has a UAE residence visa valid until March 2004. After more than a year away, she is visiting us in Abu Dhabi in December for three weeks. Does she need a visit visa or will she get it on arrival? Will her US university identity card be need