ASK ATTY. BARNEY: Answers on visa expiration date, duration of probation period, and filing complaints

396

Should I follow my contract expiration date or visa expiration date for non-renewable of contact?

Atty. Barney, my sister is currently working as an accountant under a limited contract here in Dubai. She will finish her contract on November 28, 2019, but her visa and Emirates ID will expire on December 15, 2019. When she filed her non-renewal letter, the manager wants her to finish her work on the expiry date stated in her Emirates ID and visa. Please advise. – Marielle

Your sister may follow the expiration date of her contract pursuant to Article 1(I) (1) of the Minister of Labor’s Decree No. 765 of 2015 on rules and conditions for the termination of employment relations which states: “An employment relation between an employer and employee may be terminated in the case of fixed term contracts (approved by the ministry for a term of no more than two years), an employment relation is terminated if the contract expires and the contract is not renewed.”

In the event that her employer fails to cancel her work permit and residence visa, she may approach the Ministry of Human Resources and Emiratisation and file a complaint against her employer. Also, she may call the police if her employer unlawfully withholds her passport.

Employee can seek compensation if company files false complaint

Atty. Barney, the company where I am employed filed a complaint for alleged embezzlement of money owned by the company, which I denied for being false and without proof. The complaint is now pending with the Dubai Public Prosecution and the local police confiscated my passport. My employer company has suspended my employment and directed me not to come to work until the Public Prosecution issues a decision on the complaint. Also, said employer company told me that my salary should be withheld until the complaint is resolved. Please advise. – Jessa

 If you are found innocent and exonerated from the complaint, you may file a criminal case and prove that the complaint was spurious, malicious and/or motivated by bad faith. You may likewise demand for the payment of wages for the entire duration of the suspension of your employment, reinstatement to former position prior to the complaint and, with damages against your Employer Company and/or responsible officer therefrom whom initiated/authorized the malicious complaint against you.

Article 112 of the Labour Code states that the laborer may be temporarily suspended from work if he is accused of committing a deliberate offence against life, property, honour or honesty or an offence associated with strike. The period of suspension shall start from the date the incident is reported to the competent authorities until the latter renders a decision on the matter. The laborer shall not be entitled to wage for the period of suspension. Where it is decided that the laborer is not to be prosecuted or is acquitted, he shall be reinstated and paid his full wage for the period of such suspension if it was malicious by the employer.

Probation Cannot Exceed 6 Months

Atty. Barney, I started working for my new company last March 1, 2019 and was placed on probation. My boss told me that I am still under probation until December 30, 2019.  Is my employer correct?  – Analee

No, your employer is not correct. Article 37 of the Labour Code explicitly states that an employee may be placed on probation for a period not to exceed six months. Further, the same employer cannot put the employee on probation twice.

After the probation period, which should not exceed six months, the employee will be considered as a regular employee if she satisfactorily completes the probation period. Note however that the employer can terminate the employee at any time within the probation period without giving notice or end of service remuneration.

End of service gratuity under limited contract

Atty. Barney, I have been with the company for 2 years under limited contract. I got a better job offer from another company. If I will resign from my current company, will I get end of service benefits? – Michael

 No, you will not receive end of service benefits because your employment period with the company is only 2 years and you are under limited contract.

Article 138 of the Labor Code states that:

“Where the laborer under a definite term contract abandons his employment at his own absolute discretion before the expiry of his contract period, he shall not be entitled to end of service gratuity unless his continuous period of service exceeds five years.”

If you will resign, the company has to pay your salary until last working day and the cash value of unused annual leave based on your basic salary. You are not entitled to air ticket since your resignation is voluntary on your part.

Atty. Barney is a Director at the Commercial Department of Gulf Law in the Middle East, Philippines and United Kingdom. Readers can visit www.gulflaw.info or call +971 55 8650 248 for further information.