Ask the Law
Ask the Law Image Credit: Ask the Law

Question 1: I have been working in a company for seven months. In my internal labour contract, it is mentioned that I have no right to take maternity leave. In such a scenario, have I forfeited my right to ask for maternity leave? Do I need to complete one year in service to ask for maternity leave? Please advise.

Answer 1: UAE Federal Law No (8) of 1980 mentions the following:

Article 30: A female worker shall be entitled to maternity leave with full pay for a period of 45 days, including the period preceding and the period following her confinement, on condition that she has been in the employer’s service for a continuous period of not less than one year. If she has not completed the aforesaid period of service, she shall be entitled to maternity leave with half pay.

See more

Upon expiry of maternity leave, a female employee may be absent from her work without pay for a maximum period of 100 consecutive days, if such absence is due to an illness confirmed by a medical certificate issued by the medical service as specified by competent health authority or if the latter authority confirms that the illness was related to the woman’s confinement.

The leave provided, as mentioned in the two preceding paragraphs, shall not be deducted from other periods of leave.

Finally, according to UAE Labour Law, a female employee is entitled to maternity leave regardless of whether such a provision is mentioned in her contract or not. If the labour contract says an employee has no right to maternity leave, then such a contract will be considered against labour law.

Partnership clause

Question 2: I work in a private company as a manager and partner. It is mentioned in the Articles of Association that I receive a monthly salary, in addition to a commission. A year ago, I didn’t receive my salary, though I got the commission two months ago. I do not have a contract from the Ministry of Labour. My questions are: Does the UAE Labour Law regarding my right to claim my salary for a year apply to me? Which is the court that is competent to hear this case?

Answer 2: Distinguishing a labour contract from any other contract is based on the availability of the dependency element that is subject to the employee’s supervision and management of the employer. This is based on what is stipulated in Article 1 of Federal Law No 8 of 1980. One of the manifestations of this dependency is to determine the type of work and granting the worker a wage, and it is sufficient for this dependency clause to appear in its organisational, administrative or financial form.

The worker may combine his role as an employee and partner and each role is distinguished by its own elements and governed by its own rules. Moreover, determining whether the partner has the status of a wage-earner in the company and whether he enjoys sufficient independence in the discharge of his work and is considered one of the agents or representatives — and not as a mere worker bound by an employment contract — depends upon the circumstances of the situation. But if he is tied, in the performance of his duties, to the management, direction and supervision of other operators, then he shall be considered as one of the workers associated with the company with a work contract (Refer to Appeal No 2016/82 Labour Appeal).

In Appeal No 2010/75 Civil Appeal, Dubai Court decided that “the manager of a limited liability company, whether appointed for a fee or by way of donation and whether he was appointed in the company’s founding contract or in a separate contract or by a decision from the General Assembly of the partners and had great independence in the performance of his work, his relationship with the rest of the partners is based on partnership in the limited liability company in how stipulated [it is] in its founding contract and is not an employment relationship. Accordingly, the Commercial Companies Law applies to him, in which, there is no objection to filing a lawsuit directly with the judiciary.

“If the manager is appointed on a contract that is independent of the company’s founding contract and is not related to it and with a fee and is subject to the performance of his work for the management, direction and supervision of others in charge of the company’s order, he is considered one of the workers associated with the company with an employment contract because of the legal dependence and the lawsuit filed in the labour court must be preceded, by applying the provisions of Article Six of this law, by submitting a request from the plaintiff to the competent labour department to take what it deems necessary to settle the dispute between the two parties, so that if friendly settlement does not take place, then this department must refer the dispute to the competent court within two weeks of submitting the application to it”.

Secondly, based on the above legal provisions and in keeping with your situation, you seem to have total independence in the performance of your duties. Moreover, you don’t have a labour contract, which means that the civil court (not labour) is liable to deal with your case and the one-year cap is not applicable towards the payment of salaries to you.

See more