Defamation case and compensation claim
Question: A month ago, I discovered that a social media celebrity had used inappropriate statements against me and the clinic I own, which affected me and the reputation of my clinic. My question is: How can I sue this person and whether I have the right to lodge a criminal complaint against him, given the fact that more than a month has passed since the incident?
Answer: You have the right to file a criminal case against him within three months of your knowledge of the crime. You can also file a civil case claiming compensation, especially if the perpetrator was sentenced as guilty by the court.
Article (10) of Federal Law No (35) Of 1992, concerning Criminal Procedural Law, states: ‘A criminal case may not be lodged, in the following cases, except upon a written or verbal complaint from the victim or his or her legal representative:
1) Theft, swindling, breach of trust, as well as concealment of objects obtained therefrom, in case the victim is a spouse of the perpetrator or one of his ascendants or descendants and these objects are not seized judicially or administratively or encumbered by a lien in favour of another person.
2) Abstention from delivering a minor to the one who has the right to ask it or take him or her away from the authority of his or her custodian or surety.
3) Abstention from paying the adjudicated alimony, or cost of fostering, suckling or housing.
4) Insult and slander.
5) Other crimes specified by law.
Unless otherwise provided by law, the complaint shall not be accepted after the lapse of three months as of the victim’s knowledge of the crime and its perpetrator.’
UAE Penal Code deals with insult and defamation in Chapter No 6 regarding crimes perpetrated against reputation, libel, insult and disclosure of secrets. Article 372 of this law states: A person ‘Shall be sentenced to detention for a term not exceeding two years or to a fine not in excess of Dh20,000, whoever attributes to another, through a means of publicity, a fact that makes him or her an object of punishment or of contempt’. Article 373 also states that a person ‘Shall be sentenced to detention for a term not exceeding one year or to a fine not in excess of Dh10,000. Whoever casts another, by any publicity means, with any statement that affects his or her honour or dignity without attributing to him or her a specific fact’.” Finally, Article 374 (1) states that a person ‘Shall be sentenced to detention for a maximum period of six months or to a fine not exceeding Dh5,000 in case the libel or insult takes place through the telephone or in the presence of others’.
The same topic was also addressed by the UAE Federal Decree-Law No (5) on Compacting Cybercrimes, in Article 20, which states that ‘Without prejudice to the crime of slander determined by the Islamic Sharia, one shall be punished by imprisonment and a fine not less than Dh250,000 and not in excess of Dh500,000 or either of these two penalties, if one insults or accuses another person of a matter of which he or she shall be subject to punishment or being held in contempt by others, by using a computer network or information technology means’.
Calculation of end-of-service benefits for worker paid on commission basis
Question: I have been working in a private company for five years. According to my agreement with the company, I am supposed to work on a commission basis and I do not receive a fixed monthly salary. A month ago, I submitted my resignation, but the employer rejected it, but I do not want to continue working here. My question is: Does the employer have the right to reject my resignation? Secondly, how will my end-of-service benefits be calculated according to the Labour Law, since I do not have a fixed monthly salary? Also, am I legally entitled to claim annual leave arrears, given that I have not taken leave for more than two years? According to the employer, a worker who works on a commission basis is not entitled to annual leave allowance. Kindly advise.
Answer: To answer your question, I would advise you the following:
1. Regarding resignation: You have the right to end the employment agreement through resignation. The employer cannot force you to work against your desire even if he refuses to accept your resignation — unless you agreed to carry on. The resignation will be effective from the date you submit it.
Dubai Supreme Court has ruled that ‘the worker, after informing the employer, may resign from the job, and this resignation is a unilateral termination of the contract that becomes effective as soon as it is submitted — unless the worker continues to carry out his or her work by order of the employer, if he or she is asked to continue with it. The worker also has no right to change his or her resignation request without the employer’s desire’. (Cassation No 2014/57, Labour.)
2. Regarding payment of gratuity and annual leave encashment: you are entitled to both, even if your salary is in the form of commission, taking into consideration that the law has given you the right to receive your annual leave allowance for the last two years only, not more than that.
According to UAE law, if a worker’s salary is in the form of commission, then it is not fair and equitable, whether for the worker or the employer, to consider the amount due to the worker on the last month of his or her service as the basis for calculating the end-of-service gratuity, as well as the notice of termination of service and annual leave allowance. This is because this amount is not, in most cases, an expression of the reality of the wage and the average wage over a reasonable period of time should be taken into account when calculating gratuity, notice of termination and annual leave allowance.
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UAE Labour Law does not specify this period, so its determination is subject to the authority of the trial court, as it deems appropriate from the circumstances of the case.
This was decided by Dubai Supreme Court in Cassation No 2014/138, Labour, that states: ‘In calculating the end-of-service gratuity for workers who receive their monthly wages, the last basic wage for them shall be taken into consideration, except for what is expressly excluded by Article 134 of the same law, according to which, if the worker’s wage is in the form of a commission, then its average over a reasonable period of time should be taken into account when calculating the amount of gratuity and its determination is subject to the authority of the trial court as it deems fit from the circumstances of the case’.