Question:
I have been working in a private company for two years without a salary. I work on a commission basis, and the company also gave me 2% of the company's total profits. However, this percentage is not mentioned in the employment contract and is only mentioned in the side contract.
Currently, the employer refuses to give me 2% of the profits of this year, as well as the profits of last year, on the grounds that these profits are not mentioned in the work contract certified by the Ministry. How do I calculate the end of service; and is it possible to calculate the annual leave allowance, given that I did not take the annual leave for more than two years? Please advise.
Answer:
To answer such question, I would advise the questioner that:
(1) Your end-of-service rights including the annual leave salary will be calculated based on the same method of Calculating the Wages of Workers on Piecework Basis, as per Article 23 of the law. (The daily wage of workers who receive their wages on piecework basis shall be calculated according to the average amount the worker received for the actual working days during the (6) six months preceding the request or claim regarding any issue related to the wage.)
Article 51 of the law regarding End-of-Service Benefits for Full-Time Workers states that “The full-time foreign worker, who completed a year or more in continuous service, shall be entitled to end-of-service benefits at the end of his service, calculated according to the basic wage as per the following:
a. A wage of (21) twenty one days for each year of the first five years of service;
b. A wage of (30) thirty days for each year exceeding such period.
Without prejudice to the legislation regarding the granting of pensions or retirement benefits to workers in some establishments, the end-of-service benefits shall be calculated according to the last basic wage the worker was entitled to —with respect to those who receive their wages on a monthly, weekly or daily basis, and according to the average daily wage stipulated in the provisions hereof for those who receive their wages on a piecework basis.”
(2) Regarding the annual leave salary, it should be calculated as the method mentioned above. As per Article 29 of the law, the employer may not prevent the worker from benefiting from his annual leave accrued for more than two years, unless the worker wishes to carry it forward or receive a cash allowance for it, in accordance with the regulations in force at the establishment and the Implementing Regulation.
The worker shall be entitled to a wage for the accrued leave days if he quits the work before using them, regardless of the leave duration, with respect to the period for which he did not obtain his leave.
He shall also be entitled to receive leave wage for parts of the year in proportion to the period he spent at work and it shall be calculated according to the basic wage.
(3) You have the right to request for the 2% of the company's total profits as per the internal contract — and leave the matter to the court to estimate whether you deserve it or not. The internal contract will be taken into consideration when its terms are still applied between the parties and the labour contract did not delete or cancel that contract or cancel any of its terms.
