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Forced resignation: Does UAE law allow it?

by | EDITOR’S CHOICE, News, TOP STORIES

Aug. 21, 19 | 8:01 pm

DUBAI: It pays to know the law, especially if it pertains to employment – the very reason why most Filipinos are in the United Arab Emirates, in the first place.

One such topic making the rounds in accommodations and even on social media via mostly Facebook accounts of overseas Filipino workers (OFWs) is the issue of forced retirement.

Legal experts say the first step when you sense that management is zeroing in on you is to talk to your line manager and ask for valid reasons behind the decision.

999, the official monthly publication of the Ministry of the Interior, reported on the following steps that may be taken if you’ve already exhausted the “talk avenue” and believe that you have a case of arbitrary dismissal – the question being, “Can you be forced to resign?”

The answer, according to three legal experts is: “No – and you can resort to legal assistance.”

Not in the middle of a contract

According to Sarah Anderson, lawyer, said employees cannot be terminated in the middle of their employment contract.

Citing provisions of the UAE Labor Law, Anderson said employment contract can only be terminated on expiry of the period specified in the contract, unless during the period when the contract was extended in accordance with provisions of an existing statute.

Sarah Anderson

Employment contracts, Anderson added, may also be terminated on grounds of mutual agreement upon the expiry of the contract term, where the contract is for a limited term.

This is at the will of either party, provided there are, in the case of the employer, valid grounds and notice is served appropriately.

In this context, the employee can challenge a forced resignation by the employee if the employment has not been terminated in accordance with the mentioned provisions of the law.

Threats

Meantime, Sara Khoja, Partner at Clyde & Co, echoing Anderson’s position, said an employer cannot force employees to resign, as doing so would be against their will.

She also stressed that the matter must be looked at in its entirety, citing contract provisions stating that an employee can be terminated because of poor performance, misconduct, or when there is an ongoing restructuring of the organization.

Sara Khoja, Partner at Clyde & Co

“Depending on the circumstances, the employer can give an employee the option of resigning or being dismissed. Sometimes, employees would prefer to resign than be subjected to disciplinary or poor performance procedures (and have that on their employment record),” Khoja said.

Grounds for termination

There are varied reasons for terminating an employment contract depending on the term and on whether it is being ended arbitrarily or with advanced notification.

The legitimate reasons for terminating a person’s employment vary, depending on the term, and whether the contract is being terminated summarily or on notice.

According to Anderson, grounds for terminating unlimited and limited contracts are as follows.

• Unlimited-term contract. An employer may only summarily terminate an employment contract if there is gross misconduct on the part of the employee, as stipulated in Articles 120 and 88 of the UAE Labor Law. The employer may also terminate on notice provided there is a valid reason involving the worker’s conduct of his or her job.

The law says this is generally accepted so long as an adequate poor performance/disciplinary procedure has been followed prior to termination. Any termination that doesn’t fall into these categories is likely to be considered an arbitrary dismissal, for which the court can award the wronged employee up to three months’ pay as compensation.

• Limited-term contracts. Anderson said that strictly speaking, the employment should proceed till it has been consummated. In the event it is terminated earlier than provided for, due to reasons other than those provided for under Articles 120 and 88 which includes gross misconduct, the employee can push for termination compensation amounting to three months’ salary or pay for the remaining period of the contract, whichever is shorter.

Compensation

Meantime, Khoja said a dismissed employee is legally entitled to several compensations that the company is obligated to pay in full.

These, she said, include appropriate notice period, end-of-service gratuity and holiday, as well as other contractual entitlements such as bonus or commission. It should be noted that compensation is only payable in cases where an employee is dismissed arbitrarily – for an unjustified reason and is not related to his work.

Strictly, as per the law, arbitrary termination is the act of dismissing an employee on grounds not related to the conduct of his or her job, said Imran Khan, Advocate & Legal Consultant at Mohammed Al Marzooqi Advocates.

“The employee’s case becomes stronger if a reasonable complaint is lodged by him/her with the competent authorities, or on grounds of a justifiable action brought by him against the employer,” he said.

Imran Khan, Advocate & Legal Consultant at Mohammed Al Marzooqi Advocates

In such a case, the amount of compensation should not exceed the employee’s pay for a period of three months, to be worked out on the basis of the last pay due to him/her or for the remaining period of contract, whichever is shorter, Khan said.

Penalty

Khan meanwhile said there are certain fines and/or punishments that can be imposed on companies that do not follow the right procedures or processes of employment as per the UAE Labour Law.

But, first the aggrieved employee need to file a complaint or a claim in the Labor Court.

“There are penalties for breaching various provisions of the labor law and ministerial resolutions, such as failure to register employees correctly, obtain work permits and residency visas, apply WPS and so on,” Khoja said.

“The UAE Labour Law does set out a procedure, which employers should follow before taking any disciplinary action (including dismissal), but there is no actual penalty for failing to follow this. Failure to follow the procedure would, however, increase the risk of the employee claiming their dismissal was unlawful and that they are entitled to compensation,” Anderson for her part explained.

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THE FILIPINO TIMES is the biggest and most trusted Filipino newspaper in the UAE.

It has a print run of 60,000 copies and 250,000 readership per week; bolstered by 2.5 million visitors to its website every month. It also has an e-newsletter sent to its 250,000 subscribers every day.

The Filipino Times is FREE and has the widest targeted circulation across the 7 emirates of the UAE.

With more than 2,500 strategic distribution spots, TFT is available where the Filipinos are - at Smart Bus Shelters, Metro Stations, restaurants, supermarkets, schools, airport lounges, Emirates and Etihad Philippine-bound flights, churches, Filipino community events and many more.

THE FILIPINO TIMES. We are where the Filipinos are.

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