Question: I am a woman who has been working in a private company for two years. A month ago, I took maternity leave. Two weeks ago, I received an email from the company, stating that I was dismissed from work because of my poor performance. My question is, does the employer have the right to dismiss me from work in this manner, while I am still on maternity leave? According to the job offer agreement, my maternity leave is unpaid leave. Does the employer have the right to put such a condition in the job offer agreement, in the first place? Please advise.
Answer: In general, the employer may not dismiss an employee or serve him or her with a notice of dismissal during his or her leave, according to Article 90 of the UAE Labour Law, ‘Without prejudice to cases where the employer has the right to dismiss the employee without notice or gratuity as prescribed herein, the employer may not dismiss an employee or serve him or her with a notice of dismissal during his or her leave, as is provided for in this Section’.
Article 7 of the law states: ‘Terms inconsistent with the provisions of this Law, including those whose effective date may precede the enforcement of this law shall, unless they are proved more beneficial to the worker, be deemed null and void.’
This means that such condition in your contract is considered null and void since it is inconsistent with the provisions of Articles 30 and 31, stating that ‘A working woman is entitled to maternity leave with full pay for a period of 45 days, including the time before and after delivery, provided her continuous period of service with the employer should not be less than a year. But, if a working woman has not completed the said period, the maternity leave shall be with half pay.
A working woman, upon expiry of maternity leave, may continue with work without pay for a maximum period of 100 consecutive days or intermittent days if such absence is due to illness, which does not enable her to resume work. Such illness shall be backed by a medical certificate issued by a medical authority, attested by the competent health authority or endorsed by such authority, to the effect that the illness resulted from pregnancy or delivery. Leave provided for, in the preceding two paragraphs, shall not be computed as part of other leaves. Article 30 & Article 31 say: ‘In addition to any prescribed rest period, a working woman nursing her child shall, during the 18 months following the date of delivery, be entitled to two additional breaks each day for this purpose, neither of which shall exceed half an hour. These two additional periods shall be considered as working hours and shall not cause any reduction of remuneration.’
It was decided by Dubai Supreme Court that: ‘The worker’s entitlement to maternity leave wages is subject to the existence of the work relationship between the two parties. If that relationship actually ends before the date of delivery, she is not entitled to claim the wages, even if the employer had agreed to that leave during the work relationship, because upon its expiration, she is not certified as a worker.’ (Cassation No 2015/53, Labour.)
Breach of real estate contract
Question: Two years ago, I bought a property from a real estate developer and the property I bought was rented by the developer. I paid for the property in full and the property was registered in my name and ownership was obtained. The purchase agreement states that the developer is obligated to hand over the property free of any tenant. However, the tenant is currently refusing to vacate the property. My question is, am I legally entitled, according to the condition mentioned in the purchase agreement, to terminate the agreement and claim compensation?
Answer: If we take into consideration that the condition mentioned in your agreement is not an option and not restricted with a termination penalty, that the performance of the purchase agreement becomes impossible and that you have fulfilled all your obligations, then the general provisions of Articles 246, 272, 273 and 274 of the UAE Civil Transactions Law should be applied. These provisions give you the right to request for termination of the purchase agreement accompanied with compensation, but the estimation of whether the performance of the purchase agreement becomes impossible or not falls on the court, after checking all the circumstances of the matter.
Article 246 states:
1. ‘The contract shall be implemented, according to the provisions contained therein and in a manner consistent with the requirements of good faith.’
2. ‘The contract is not restricted to what is contained therein, but shall extend to its essentials in accordance with the law, custom and the nature of the transaction.’
Article 272 states:
1. ‘In bilateral contracts, if one of the parties does not perform his or her contractual obligations, the other party may, after serving a formal notification to the debtor, demand the performance of the contract or its rescission.
2. The judge may order the debtor to immediately execute the contract or grant him or her specified additional time, as he or she may order rescission with damages — in any case — if deemed justified.
1. ‘In bilateral contracts, if a force majeure arises, that makes the performance of the obligation impossible, the corresponding obligation shall be relinquished and the contract rescinded, ipso facto.’
2. ‘If the impossibility is partial, the consideration for the impossible part shall be extinguished. This shall also apply on the provisional impossibility in continuous contracts. In both instances, the creditor may rescind the contract, provided the debtor has knowledge thereof.’
Article 274 says: ‘When a contract is rescinded, the two contracting parties shall be reinstated to their former position, prior to contracting, and in case this is impossible, the court may award damages.’
It is decided by Dubai Supreme Court that ‘If the implementation of the obligation in kind is impossible, the contract will be void because it cannot be implemented’. (Dubai, on January 27, 2021, in cassation No 1/2021, General Authority of the Court of Cassation.)
It is also decided that in order ‘to assess whether the seller has been late in the implementation of his or her contractual obligations, and that this delay amounts to what leads to the buyer’s response to the request for the termination of the contract or not, and the assessment of the corresponding binding obligations of the two sides is one of the issues of reality that is related to the court of subject matter’. (Dubai, on April 20, 2021, in cassation No 5/2021, the General Authority of the Court of Cassation.)