By PETER STEWART - employed at VISIONAIRE 05 Oct, 2008 - 11 Feb, 2010
- It was based on the unlawfully reduced salary of AED10 000 (2) insofar as Notice Pay was concerned, instead of the AED12 000 as per the JAFZA contract. (3) This had taken place as the owner, Mr Aseem Gupta had undertaken to provide an incentive scheme, which he never did. Neither was any amendment made to the JAFZA Contract (see copy attached/enclosed). So, in any event, this constituted a material breach of contract in terms of Article 9.9.7a of JAFZA Labour Law. (5)
- The Leave Days reflected were understated by 2 days.
- No provision was made for compensation for arbitrary dismissal as provided for in Articles 9.9.6, 9.9.9, and 9.9.10 of The Jafza Labour Law, extracts of which are included in the appendix for ease of reference. (5)
Whilst the staff of the Operations, Legal, and Customer Service Departments were very courteous, friendly, and helpful – and many went out of their way to assist, especially Yousif, Syed, and Reema, and Rashed on the 2 occasions I was able to consult with him, the outcome of the labour dispute was incorrect, unfair, and ……….. even ‘unlawful’.
If we review the events:
- The Letter of Termination (1) listed the reason as: “your position in the company has become redundant”. No background checking or verification of this was conducted by JAFZA. If the position I was holding was the only Client Relationship Manager for the whole of India, and the Company was not closing down, then how can the position become redundant? It is a critical function of the on-going business operations!
- On the day of termination an incorrect and understated EOS schedule was offered to me. This is actually fraudulent. How many employees before me have been cheated in this manner – because they are not familiar with JAFZA Law which is not made available by the Company? The answer is very many. This may be revealed if an internet poll is instituted. For this there was no censure of the Company.
- Numerous promises were made, then missed, delayed, or postponed by the Company, to provide the amended EOS schedule from 18th February through to 1st March, 2010. Then on the 1st March, a date Yousif Al Ali had fixed as non-negotiable and compulsory, Arvind Aware of the HR Department at Visionaire arrived 10 minutes late despite a phone call reminder at 11.00am from Yousif Al Ali.
- No disciplinary meeting was ever convened with me and this is corroborated by the fact that no such documentation was ever filed or lodged with JAFZA.
- My case was a clear cut example of arbitrary, unlawful reduction of salary for the months of October, November, December, and January with no amendment at JAFZA. This action, therefore, constituted breach of contract by violating Article 9.9.7a (5) – effectively, materially, and legally!!
For all the above reasons my case for compensation and refund of short paid salaries was completely valid, strong, and crystal clear, without any opposing argument from the Company. JAFZA’s rulings delivered verbally, and then in writing from the Legal Department (Reema Bawazir), fell way short of any solution dictated by commonsense, let alone legally.
- The Company were ONLY told to refund ONE month of the FOUR short-paid salaries (January, 2010).
- Compensation was set at ONLY ONE month of BASIC salary. Despite formal, legal notices to the company this instruction was ignored and rejected by the Company anyway.
- JAFZA did not enforce any of their powers on the Company and implement a fixed ruling which was full and final – such as provided for in Article 9.9.10 and 9.10.3 – “Jafza reserves the right to calculate terminal benefits itself and to require the Company to provide cash and air tickets for distribution to departing employees. In such cases Jafza’s signature shall be deemed to replace the Company’s authorised signatory.
The eventual solution of a Letter referring the dispute to the Dubai Courts (4), as provided for in Article 9.11.1, is of no practical value for an employee in most instances, and merely allows JAFZA to abdicate themselves from the responsibility to provide a proper resolution in ‘real’ time.
This is for the following reasons:
- The case must be presented in Arabic which usually means that a lawyer must be engaged. Legal expenses are prohibitive in that is a consultation cost, then case preparation cost, and finally the attorney will take a percentage (usually 10%) of the court award.
- The procedure will take up to 90 days, before any appeals are entertained, which bring further delay and more legal costs prior to any final judgment.
- The maximum award by the Courts is 3 (three months salary) – usually full salary in the Dubai Courts which observe UAE Labour Law, but not necessarily, and subject to the ruling of the Competent Court.
- The employee cannot appeal to the Court for any financial relief during the legal process, even from the non-disputed elements of the End of Service settlement, such as the Notice Pay, Gratuity, and Leave Pay encashment.
- The Employee cannot take up alternative employment to fund living, transport, and monthly expenses to financial institutions. By contrast the Company continues to trade and can afford the costs of a lawyer to oppose, obstruct, and appeal the process to further exacerbate the financial problems faced by the employee referred to above.
- Travel (e.g. to home country to await the Court outcome) is restricted to a short period (one week) and needs to be sanctioned by Jafza – so the employee must effectively remain in the UAE.
- No issues of a civil, psychological, or moral nature resulting from abuse, threatening, or illegal treatment can be introduced for consideration by this Court. These would have to be claimed in a separate, legal action through a Civil action – again needing financing by the employee. Even if a criminal case was lodged and taken up by the Public Prosecutor this would involve penalties against the employer, but would not provide any financial award to the employee who initiated the case.
In conclusion the whole process is fatally flawed and completely skewed against the employee getting any justice in the final outcome. The Employer can exploit the loopholes and inconsistencies of the JAFZA Labour Law and delay the process, in the knowledge that JAFZA will not, and does not, enforce or deliver the ‘letter’ of the Laws that are contained in JAFZA Labour Law as published on the JAFZA Website. Apart from some verbal and written ‘pressure’ from JAFZA to conform with instructions which they, and only they, make a decision on whether to enforce compliance, the JAFZA process of pursuing a dispute is for all intents and purposes a waste of time and effort for an employee. I was going to suggest that JAFZA publish a Handbook: ‘Guide to Employees Working in JAFZA’, which would include advice, assistance, and services available from an ‘open door’ policy but, in the light of the above, this would be ridiculous, as it would be mostly the exact opposite of the Labour Law rules and regulations. And going to JAFZA to register a complaint about a company actions and policies inevitably results in termination – on the Company’s terms with little or no protection provided by JAFZA. How can this be overcome? By passive acceptance without raising any objections against unfair practices and violations of Labour Law seems the only way to prolong an employment contract, and finally accepting the settlement offered without any complaint or dispute, seems the best practical solution to employment in JAFZA – even though this is in total contrast to the Employment regulations in most modern and democratic societies, and those that are acceptable in the guidelines of the International Labour Organisation.
(1) See Appendix – Item 1 – Termination Letter_Visionaire to Peter Stewart
(2) See Appendix - Item 2 – Visionaire Payslip Showing Dhs 2000 Short Paid
(3) See Appendix - Item 3 - Scan Copy of Contract of Employment
(5) See Appendix - Item 5 - Extracts of Jafza Labour Law
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Appendix: : click here to view items: 1, 2, 3, & 4 listed in the Appendix.
ITEM 5 | EXTRACTS OF JAFZA LABOUR LAW:
9.9 Rules Governing Termination of Contracts of Employment:
9.9.1 A contract of employment may be terminated as follows:
a) By mutual agreement between the employer and employee and with the approval of Jafza.
b) By the employee or employer during, or at the end of the probationary period (without notice).
c) By employee or employer giving 30 days notice in writing (after the probationary period).
d) On expiry of the service period prescribed in the contract, provided 30 days notice NOT TO RENEW is given by either party.
9.9.2 A contract of employment shall be terminated in either of the following cases:
a) If the employee dies during service.
b) Illness of, or injury to, the employee resulting in a total incapacity to work (which is subject to the provision of a medical report by an acceptable authority).
9.9.6 An employee’s service may be terminated without notice for any of the following reasons :
a) If the employee is ill disciplined, or fails adequately to perform the duties as
defined in the Employment Contract (three written warnings with copies to Jafza
must be given before this rule is activated). (Important requirement)
b) If the employee is sentenced by competent court of a civil misdemeanour or
criminal act.
c) If the employee is found drunk or under the influence of a drug at work.
d) If the employee is absent from work without valid reason for more than seven
continuous days in any one year.
e) If the employee, while at work, assaults the employer, a responsible manager, a
workmate, or a visitor.
f) If any action by the employee results in substantial loss to the company
(provided that the employer notifies Jafza within 48 hours of discovering the
loss). (note that 9.10.1 should be taken into consideration as well in this event)
g) If the employee fails to comply with health and safety regulations (provided that
such regulations are prominently displayed in writing and, in the case of
illiterate employees, that they have been explained orally.)
h) If the employee falsifies his / her identity details.
9.9.7 An employee may cease work without notice if:
a) The employer fails to fulfil the terms of the contract of employment. (such as arbitrary reduction of salary without amendment to the Jafza Employment Contract.
b) The employer, or his representative, assaults the employee.
9.9.8 Termination under clauses 9.9.6 and 9.9.7 are subject to agreement by Jafza before the Employment Contract is cancelled.
9.9.9 Dismissal for any reason other than those in clause 9.9.6 shall be deemed to be an “arbitrary dismissal”. In such cases the employee shall be entitled to compensation in addition to severance payments due under the terms of the Employment Contract.
9.9.10 The amount of compensation to be paid:
a) Shall be assessed by Jafza
b) Shall not exceed three times the basic monthly wage specified in the Employment Contract
Jafza’s decision shall be final.
9.9.19
The employee, on termination of service may request, and the employer shall provide if so requested, a “Service Certificate” to show:
a) Period of service
b) Work performed while employed
c) Final rate of pay and bonus, if any
d) A character reference
Such service certificate shall be provided free of charge.
9.10 Implementing Termination of Employment:
9.10.1 Jafza is to be notified of any disciplinary action taken against seconded staff within ten days of the action being taken.
The following information is to be provided to Customer Service Department:
- Name and CEC number
- Date of offence
- Nature of offence
- Disciplinary action taken
- General Manager’s signature
9.10.2 Upon termination of employment, the Company is required to submit a statement in the prescribed form (copies available from Customer Service Department), of the final dues, giving sufficient details to determine how the final dues have been calculated. This statement shall be signed by the employee and by an authorized signatory of the Company. A copy shall be given to the employee and a further copy, after signature by the employee, is to be presented to the Customer Service Department.
At the same time the Company is to either lodge with Jafza a sum in cash equal to the total of the final dues, or an official receipt showing that the employee has received his final dues.
9.10.3 Jafza reserves the right to calculate terminal benefits itself and to require the Company to provide cash and air tickets for distribution to departing employees. In such cases Jafza’s signature shall be deemed to replace the Company’s authorised signatory.
9.10.4 In all cases when a seconded staff employee is separating from the Company, Jafza, acting as sponsor, will arrange to cancel the employee’s residence permit.
9.11 Resolving Labour Disputes
9.11.1 Jafza is responsible for solving any labor disputes arising through the Customer Service Department in Jafza. If the said Department fail to make the two parties reach agreement, Jafza shall transfer the case to the court if it is required by one of the parties.
11.4 Accommodation Outside The Free Zone
11.4.1 Licensees wishing to accommodate their staff in Accommodation Complex’s or houses outside the Free Zone must first seek the approval of Jafza. To obtain this approval, the following information should be submitted to Group Environment, Health and Safety Division(EHSS):
- Detailed address and location of the premises which is to be used for accommodation.
- General condition of the building with details of any major structural damages.
- The condition of sanitation and hygiene in the building.
- The number of people who will be occupying each room.
- Arrangement for eating or gathering.
- Details of any amendments or renovations the Licensees wish to incorporate
into the building.
- Copy of the tenancy contract.
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JAFZA (Jebel Ali Freezone Authority) - JAFZA is the leading business hub of the Middle East. Company formation in JAFZA, Visa Fee, Trading License Cost etc.
Source: https://dcciinfo.ae/co/jebel-ali-free-zone-fze-jebel-ali/6223
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