Claiming end-of-service benefits
Question: I have been working in a private company for five years. Do I have the legal right to ask my employer to give me my end-of-service benefits while I’m still continuing to work for the company? When is the employer legally entitled to suspend the worker and for how long is the suspension valid. Also, is this suspension with or without pay?
Answer: Firstly, end-of-service benefit is one of the rights that are due to the worker only at the end of his or her employment relationship with the company and not before that.
The law doesn’t oblige the employer to give you such money even if you ask for it, following what is decided in Dubai High Court of Cassation No 77/2021 Labour, stating: ‘The worker’s acknowledgment of receiving the rights established for him or her are not due until the end of his or her work contract, including the end-of-service bonus, before the right to it is established, is void given that the provisions of this law in this regard are considered peremptory provisions and relate to public order.
It is not permissible to challenge the worker’s acknowledgment of receiving such rights unless it is proven that the issuance of this acknowledgment is done after the end of the work relationship between the two parties, in which case, the worker’s acknowledgment of fulfilling those rights mentioned is valid and not invalidated.
Secondly, according to Article (112) of the federal labour law: ‘A worker may be temporarily suspended from work if he or she is accused of committing a deliberate offence against life, property, honour or honesty or an offence associated with strike.
‘The period of suspension shall run from the date the incident was reported to the competent authorities, until the latter renders a decision on the matter.
The worker shall not be entitled to wage in respect of the period of suspension. ‘Where it is decided that a worker is not to be prosecuted or is acquitted,
he or she shall be reinstated and paid his or her wages in full for the period of such suspension, if the employer had maliciously contrived it.
‘To extract whether the employer has accused the worker in a malicious way, is estimated by the trial court when it establishes its judiciary on justifiable reasons that support it in the documents. The burden of proving this malicious intent falls on the worker.’
Status of a partner-worker
Question: I am a partner in a limited liability company. Do I have the legal right to also be a worker at the company and receive a monthly salary? Is the partner, who owns 80 per cent of the company’s share, entitled to replace the manager? Please advise.
Answer: Firstly, you have the right to be a partner and an employee at the same time. It was decided in Dubai High Courts of Cassation No 2010/113 Labour: ‘There is nothing in the law that prevents a worker from combining his or her capacity as a wage earner and that of a partner, so that each class differs in its elements from the other and is governed by its own rules.
Determining whether the partner has the capacity of an employee in the company or whether he or she enjoys independence in performing his or her work and is considered one of the agents or representatives, depends on the circumstances of the situation. It is decided in the judiciary of this court that extracting the work relationship with its elements is one of the issues of reality that are independent of the discretion of the trial court.’
Secondly, the management of the limited liability company shall be assumed by one or more manager(s) as decided by partners in Memorandum of Association (MOA). They shall be selected either from the partners or from others and if they are permitted by the General Assembly of partners. In case of multiple managers, partners may appoint a board of directors to be entrusted with the powers and functions set out in the MOA.
If the MOA or the manager’s appointment contract states the way to dismiss the manager with the majority required, then it should be applied. In case if it is not stated, then Article (85) of the commercial companies UAE law should be followed, which states that unless a company’s MOA or manager’s appointment contract provides otherwise, a manager may be dismissed by a decision in the General Assembly, whether he or she is a partner or not and may also be dismissed by a court judgement upon request from one partner or more in the company, if the court sees that reasons for his or her dismissal are lawfully justifiable.