DUBAI: As per the UAE Labour Law, an employer may not dismiss an employee or give him a termination notice while he is on sick leave. This would cover sick leave for coronavirus or COVID-19 as it is a kind of illness.
The employer must compensate the employee for illegal termination if he terminates the employee or doesn’t pay him his salary and dues during sick leave (without prejudice to the cases in which the employer is entitled to dismiss the employee sans notice or gratuity).
The Supreme Court in its decision made on December 13, 2016, discusses the case of an employee who was obliged to resign because his employer was not paying him his dues during sick leave.
It was shown from documents that the employee was suffering from a bad health condition (heart-related) and had to inform the employer, obtain medical leave and then perform necessary surgery. But the employer refused to acknowledge his leave and considered it as a case of the employee being reluctant to work. The employer denied the knowledge of the employee’s condition despite the fact that the employer had e-mails to this effect sent by the employee, along with medical reports.
If such an employee leaves to work under these conditions, it is considered an embodiment of the provisions of Article (121) of the Labour Law, which concerns the employer’s breach of contractual obligations and will consider that as a form of arbitrary dismissal, which entails the employee’s right to compensation, and also his right to the rest of his entitlements accruing from salaries, leave and end-of- service benefits.
On other hand, if the employee uses all his 90 days’ sick leave and is not able to report to work afterwards, the employer may terminate his services.
In such a case, the employee shall be entitled to the end-of-service gratuity in accordance with the provisions of the Labour Law.
Article 83 states that “an employee is entitled to a sick leave of not more than 90 days per year, only after a period of three months’ continuous service following the probation period. The 90-day sick leave can be continuous or intermittent, and the salary is paid as follows:
• Full pay for the first 15 days
• Half pay for the next 30 days
• No pay for the remaining 45 days
According to Article 82 of the UAE LAbour Law, the employee must notify the employer about his sickness within a maximum two days. The employer has the right to put the employee under a medical examination in order to verify the illness and the authenticity of the employee’s leave.
The employer is entitled to request the employee to present a medical report, which justifies the employee’s absence and the calculation of the entitlement of the pay.
Nevertheless, if the employee feels unable to work again or he needs to rest as per the doctor’s advice, the law gives him the right to resign as per Article 86 of the above mentioned law which states that, “An employee can resign from work because of illness and before the expiry of the first 45 days of the sick leave, if the physician from the respective health facility or the physician appointed by the employer consents to the cause of resignation. In such a case, the employer must pay to the resigned employee the wage that is due to him with regard to the remainder of the first 45 days.”
But there are some cases in which the employee is not eligible for a paid sick leave. They include the following situations:
• During probation period
• If the illness directly arises from the misconduct of the worker such as consumption of alcohol or narcotics
• If the employee works for another employer during the sick leave.
• If this is proved by the employer so he has the right to terminate the employee without notice or sick leave payment
Subject to the provisions set forth by the law, every employee who does not report back directly to his or her job upon the end of the leave shall be deprived of salary for the period of absence from the last day of approved leave.
He or she could also be terminated or banned if proof of their absconding (absent without reporting information for more than a week) is given.
If the employer is obliged to terminate some of the employment contracts (for example in the case of COVID-19) on allegations that the organisation requires the closure of one of the establishment’s departments or the closure of the establishment itself, and in order for this termination to be justified and not described as arbitrary dismissal, the employer must prove his allegations and the court has the power to verify the seriousness of the justification presented by the employer as per his documents. Based on that, the court will take a decision.