Annual leave entitlement
Question: I have been working for a private company for ten years. During this period, I got annual leave for only one month. My question is, do I have the right, according to UAE labour law, to ask the employer for encashment of my leave that I did not claim and for which I did not receive any leave encashment either? Is the cash allowance based on the vacation salary that I was getting at that time or on the basis of the current salary? Does the employer have the right not to allow me to take my full one-month vacation annually? Currently, my employer is allowing me to take leave in three instalments of ten days each, which is quite inconvenient for me. Please advise.
Answer: To answer these questions, I would like to tell the questioner that:
You have the right to ask your employer for a cash allowance for the last two years only. Such payment shall be calculated on the basis of the wages paid to the worker at the time when the leave was accrued.
Article 78 states that: The worker shall receive a basic wage and a housing allowance, if any, for the days of annual leave. Should the work circumstances require that the worker work during his total annual leave or a part thereof, and should the leave during which the worker worked is not carried forward to the next year, the employer must then pay the worker the wage thereof, in addition to a leave allowance for the days of work equal to his basic wage. In all cases, the worker cannot be made to work during his or her annual leave period for more than once during two consecutive years.
Article 79 says: ‘The worker shall be entitled to receive the sum for accrued annual leave days should he or she be dismissed or should he or she leave work after the duly determined notice period. Such payment shall be calculated on the basis of the wages paid to the worker at the time of such leave.’
It is decided by Dubai Court that the employer denied the worker his annual leave more than once for two consecutive years, which means that his right to leave allowance in the event of termination of the contract is not exceeding the period of the annual leave that he did not receive for the last two years. (In Labour cassation No 48/2004.)
As for splitting the leave, the employer has the right to determine its date and to split it if there is a necessity for two maximum periods of leave as per Article 76, which states: ‘The employer may determine the date of the commencement of annual leave, and may split it if necessary to two maximum periods.
It is decided by the court that it is not permissible for the employer to deprive the worker of his or her annual leave for any reason, but this right does not contradict the employer’s right to organise the leave in a manner so that the annual leave does not disrupt work or cause any loss to the establishment. Splitting the vacation into two periods is the right of the employer alone and only when necessary. (In Labour cassation No 118/2014.)
Cheque issued without a signature
Question: I have a cheque from someone who had taken a loan from me a year ago, but I did not check the details on the cheque when I had received it. Now, a year later, it has become clear to me that the cheque does not have the signature of the drawer. Therefore, I asked the drawer to sign the cheque or return the debt to me, but he refused to do either. I know it was my mistake in the first place because I did not check the details on the cheque when it was issued to me. My question is, what is the legal provision in this matter? How can I secure my right? Is it possible to file a criminal case with the police? Kindly note that there was a witness when I had received the cheque a year ago. Please advise.
Answer: To answer this question, I would advise the questioner that:
The drawer’s signature on the cheque is mandatory. The cheque loses its value in case it is not signed and cannot be used in a criminal or civil case.
It is decided by Dubai Court that the drawer’s signature on the cheque is one of the essential formal data that must be available for the validity of a cheque, because it gives the cheque its value, indicates who issued it and the drawer is criminally responsible for the crime of issuing a cheque without ensuring sufficient balance. If a cheque does not bear the drawer’s signature, it loses all its value and is no longer suitable even as a civil deed. (In penal cassation No 589/2017.)
In this case, you cannot file a criminal case against the drawer of the cheque, but you can file a civil case, requesting for the repayment of the loan and you can use the unsigned cheque with the testimony of the witness who was with you at that time this cheque was issued, in order to prove the granting of the loan.
In a civil case, this cheque will not be treated as a cheque by itself, but as any customary paper (statement).
As a creditor, you must prove that you have paid the amount to him or on his behalf with all the means of proof such as: a) Written documents including emails, WhatsApp exchanges ... etc.; b) Testimony; c) Presumptions; d) Eye-witnessing and expertise; e) Avowal; f) Oath, following the general principal that the plaintiff has to prove his right, and the defendant has to disprove it as per Article 1 of the law on evidence in civil and commercial transactions stipulates.
The court has the full authority to examine the evidence and documents presented in the lawsuit, to weigh them and to extract what it deems to be the reality in the case. (As decided in the court in cassation No 179/2020, Real Estate.)
It is also decided that proving the truth of the debt is a material incident related to the reason for writing the cheque. It is permissible to prove it by all the legally established methods of proof. (Civil cassation No 8/2006.)