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Spouse won't be a help in lifting labour ban

Ashish Mehta
Filed on November 17, 2016 | Last updated on November 17, 2016 at 07.41 am
Spouse wont be a help in lifting labour ban

(Corbis Images)

A new work permit is not issued by the Ministry of Labour for the period that the ban remains operative.


Spouse won't be a help in lifting labour ban (https://images.khaleejtimes.com/storyimage/KT/20161117/ARTICLE/312079904/V1/0/V1-312079904.jpg&MaxW=300&NCS_modified=20170102133454

I worked for a company under my husband's sponsorship and quit the job after 18 months. During the cancellation of my labour card, I came to know that I was imposed a ban for one year. Does it mean that I cannot accept a job until a year is over? My prospective new employers told me that the ban cannot be lifted even if they offered me a decent salary and even though I have a Bachelor's degree/diploma. I tried to get a No Objection Certificate from my previous employer but they did not respond. When I called the Ministry of Labour, the staff said it is impossible to lift the ban. Is there a ban for women working under husband's sponsorship? And what is the best possible way to lift the ban and start working again?

It is noted that you have been imposed a labour ban as you had terminated your employment of your own volition after 18 months of service.

Pursuant to your question it may be noted that upon imposition of a labour ban, a new work permit is not issued by the Ministry of Labour for the period that the ban remains operative. As in your case, the employment ban is for a duration of one year, a new work permit may not be issued to you for the same period.

However, it may be noted that employment ban may be lifted if you are being offered a salary which corresponds to your educational qualifications. This is in accordance with the provisions of Article 4 of the of the Ministerial Resolution No (1186) for 2010 on - "Rules and Conditions of Granting a New Work Permit to an Employee after Termination of the Work Relationship in Order to Move from One Establishment to another" which read as follows:

"As an exception to the provision of Item No. (2) of Article (2) of this Resolution, the Ministry may issue a work permit to the employee without requiring the two year period in the following cases:

a. In the event that the employee is starting his new position at the first, second or third professional levels after fulfilling the conditions for joining any of these levels according to the rules in force at the Ministry, and provided that his new wage is not less than Dh12,000 at the first professional level, Dh7,000 at the second professional level and Dh5,000 at the third professional level.

b. In the event that the employer violates his legally stipulated obligations to the employee, or in the event that the employee is not the cause for terminating the work relationship as mentioned in Article (3) of this Resolution.

c. In the event that the employee moves to another establishment owned solely or jointly by the same employer."

Pursuant to the foregoing, if you are holding a bachelors' degree which is duly registered and attested in accordance with the prevailing regulations of the UAE, then in accordance with your educational credentials you must be offered a minimum salary of Dh12,000 in your subsequent employment.

Further it may be noted that a letter of no-objection from your previous employer for you to join another employer, would have been effective if the same was submitted at the time of cancellation of your employment contract. However, since the employment ban is already in place, a letter of no-objection from your employer may not be effective any longer.

Subsequently, it may be noted that labour bans may also be imposed on women residing in the UAE under their husbands' visa sponsorship, if they seek to terminate an existing employment contract before the completion of two years of continuous employment.

The resolution of your problem would be to secure an employment where you are being offered a salary, which corresponds, to your educational qualification as stated hereinabove. Alternatively, it is learnt that labour bans are usually not effective within the jurisdiction of the various free zones operating in the UAE. Pursuant to this you may also look for prospective employment in any of the free zones, or with an entity, which may provide you with a free zone visa sponsorship.

Gratuity rule

I have resigned from my job after completing three years with a company. However, my employer says that I am entitled only for two years' gratuity as I was a temporary employee for the first three months. Could you please advise what I am rightly entitled to?

It is presumed that your employment is subject to the provisions of the Federal Law No 8 of 1980 on the Regulation of Labour Relations (the "Labour Law").

Pursuant to your question, it may be noted that your gratuity or severance emoluments upon termination of an employment contract, are calculated on the basis of the entire period of your employment provided that the employment is continuous and unhindered and that the services have been rendered to the same employer, including its associate concerns. Gratuity usually amounts to one's 21 days' remuneration (last drawn basic salary) if the period of service is of 5 years' duration, whereas it amounts to one's 30 days' remuneration for each additional year of service if the period of service is more than 5 years. This is in accordance with the provisions of Article 132 of the Labour Law which states:

"A worker who has completed a period of one or more years of continuous service shall be entitled to severance pay on the termination of his employment. The days of absence from work without pay shall not be included in calculating the period of service. The severance pay shall be calculated as follows:

1. 21 days' remuneration for each year of the first 5 years of service;

2. 30 days remuneration for each additional year of service provided that the aggregate amount of severance pay shall not exceed 2 years' remuneration."

Pursuant to the foregoing, you may prevail upon your employer to consider your entire period of service to be of three years' duration.

However, in this context, it is also noted that you have resigned from your employment on your own volition. If your employment contract is of unlimited duration, you shall be entitled to receive two-third of the gratuity that you would have been otherwise entitled to receive, as your period of service is between one and three years. This is in accordance with the provisions of Article 137 of the Labour Law, which states:

"Where a worker who is bound by a contract of unlimited duration leaves his work of his own accord after continuous service of not less than one year and not more than three years he shall be entitled to one-third of the severance pay provided for in the preceding article; where the continuous period of service exceeds three years but does not exceed five years, he shall be entitled to two-third of such severance pay; where the continuous period of service exceeds five years, he shall be entitled to the full severance pay."

Subsequently it may be noted that, if your employment contract was of limited duration, you shall not be entitled to receive any gratuity as such, as your period of service is of less than five years' duration. This is in accordance with the provisions of Article 138 of the Labour Law, which states:

"Where a worker who is bound by a contract for a limited period leaves his work of his own accord before the expiry of his contract period, he shall not be entitled to receive severance pay unless his continuous period of service exceeds five years."

Pursuant to the foregoing provisions of the Labour Law, it may be noted that, if your employment contract was of unlimited duration, then you will be entitled to receive two-third of the gratuity amount which shall be your seven days' remuneration (calculated on the basis of your last drawn basic salary) for three years of service as you are terminating the employment of your own accord.

Ashish Mehta is the founder and Managing Partner of Ashish Mehta & Associates. He is qualified to practise law in Dubai, the United Kingdom, Singapore and India. Full details of his firm on: www.amalawyers.com. Readers may e-mail their questions to: news@khaleejtimes.com or send them to Legal View, Khaleej Times, PO Box 11243, Dubai.





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