Question: I have a cheque on someone I submitted to the bank and it was returned for insufficient balance. However, a month ago, a judgement was issued by the criminal court that the owner of the cheque was not guilty even though I did not receive the value of the cheque. My question is, what is my legal position towards the cheque holder, and will this ruling affect the civil lawsuit that I will file against the cheque holder to recover my right?
Answer: Article (50) of Federal Law No. (10) Of 1992 On Evidence in Civil and Commercial Transactions states that “A penal decision only binds a judge in a civil suit as regards the facts on which the penal court gave its decision and upon which the court had to give its decision. Nevertheless, the civil judge is not bound by the judgement acquitting the accused unless it is based on denying attribution of the fact to him.”
Article (269) of Federal Law No. (35) of 1992 Concerning the Criminal Procedural Law assures that “The conclusive criminal judgement rendered on the merits of a criminal action declaring innocence or guilt has res judicata and is binding on the civil courts, in cases not yet settled by a conclusive judgement, as concerns the perpetration of the crime, its legal characterisation and in its imputation to its perpetrator. The judgement declaring innocence has the same res judicata, whether based on the negation of the charge or lack of sufficient proof, but not if grounded on basis that the fact is not penalised by law.”
It is necessary to know the reasons for the judgement given to the drawer as not guilty, but, in general, the civil judge is not bound by the judgement acquitting the accused unless it is based on denying attribution of the fact to him. Nevertheless, a civil court is still bound by a judgement issued in a criminal case in matters decided in the criminal judgement and which are common to both the criminal and civil proceedings.
It is decided that the crime of giving a cheque without balance is realised as soon as the cheque is given to the beneficiary with the knowledge that he has no retractable consideration, as by this the cheque is put into circulation and the legal protection that the legislator has awarded with punishment for this crime as it is a fulfilment tool that conducts the flow of money in transactions. After that, the reasons that prompted to give it to the beneficiary do not matter, because they are among the motives that have no effect in the establishment of criminal responsibility as long as the legislator does not require a special intention to carry out this crime.
Bonus and overtime as part of end-of-service benefits
Question: Is bonus and overtime as per the UAE Labour Law included while calculating the end of service benefit? How is the end of service calculated as per UAE Labour Law?
Answer: The end of service as per the article 132 of UAE Labour Law Federal Law No. (8) of 1980 says that the worker, having spent one year or more in continuous service, shall be entitled to an end of service gratuity upon the termination of his service. The days of absence from work without pay shall not be included in the calculation of the period of service, and the gratuity shall be calculated as follows:
1 — The wage of twenty one days for each of the first five years of service.
2 — The wage of thirty days for every additional year provided that the aggregate amount of severance pay shall not exceed two years’ remuneration.
Also, the end of service should be calculated according to the Article 134 as amended by Federal Law no. 12 dated October 29, 1986, which says that:
Without prejudice to the provisions of certain laws on the pensions and retirement benefits granted to workers in certain establishments, end of service gratuity shall be calculated on the basis of the last wage that is due to monthly, weekly and daily-paid workers, and on the basis of the average daily wage as set forth in Article 57 hereof, for the workers getting paid by piece. The wage, used as a basis for calculating the end of service gratuity, shall not include payments made to the worker in reimbursements, housing, transport and travel allowance, overtime pay, representation allowance, cashier’s allowances, children education allowance, allowances for recreational and social services, and any other bonuses or allowances.
Any employee is ordinarily entitled to an end of service gratuity payment in the event of termination of employment, as long as he has the qualifying length of service (and is not being summarily dismissed). End of service gratuity is calculated on the basis of 21 calendar days’ pay for each year of service for the first five years, and 30 calendar days’ pay for each year of service thereafter. Pay for the purposes of end of service gratuity is generally accepted as being the employee’s “basic pay”, excluding allowances, provided that the contract of employment properly distinguishes between the basic pay and allowances.
In order to seek to limit the potential liability for end-of-service gratuity for employees who receive bonuses, it is advisable that performance indicators are utilised which, if not met, mean that the bonuses are not payable.