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Ban can be lifted based on person’s qualification

An engineering company called me on a tourist visa and agreed to give me a job and employment visa based on my engineering qualification. But they sent me back because they could not settle the issue.

Two months later, they sent me a labour visa and promised that they will shift it to an engineering visa. Four months have passed and they have not converted the visa to an engineer’s visa.

(i) If I resign from the company giving them a month’s notice will I get a six–month ban?

(ii) Will my employment period (including on tourist visa from August last year) count?

Since you have not completed one year with the current employer, he may make an attempt to ban you. However if he imposes a ban, it could be contested by you on the basis of your qualification as an engineer provided such qualification document is duly notarised and legalised from the country you obtained such qualification.

In case an employment ban is imposed, you may contact the Ministry of Labour to lift the ban based on your qualification.

The period you worked with the employer on tourist visa shall not be taken into consideration. Working on a tourist visa is not permitted in accordance with Article 13 of the Federal Law No. 8 of 1980 on labour relations which states: “No non-national may be recruited for work in the UAE without prior approval of the labour department and without first obtaining a work permit in accordance with the procedures and regulations laid down by the Ministry of Labour and Social Affairs.

Such permit shall not be granted unless:

(a) The worker possesses the professional competence or educational qualification which the country is in need of.

(b) that the worker has lawfully entered the country and satisfies the conditions prescribed in the residence regulations in force in the State.”

Valid visa

I work as an engineer for a company in Sharjah Airport Free Zone. I am now on annual vacation and don’t want to go back to work for the same company due to the company’s bad policies. Can I work for another sponsor on their visa? Can my new sponsor issue the new visa even if my current visa has not been cancelled? It is just 60 days since I have been out of the UAE. My leave was sanctioned only for 30 days.

Annual leave due to you and sanctioned to you by your employer was for 30 days. Thereafter you decided to extend your leave by 30 days. You currently hold a valid visa which your current employer will not be able to cancel till six months from the date you departed from the UAE.

Your prospective employer may obtain an employment visa for you after six months from the date you departed from the UAE.

Better job offer

I have been working in a company for more than three years under a contract for a limited period and renewed my contract recently in February. I want to leave the work due to a better job offer with another company. My current contract will expire on October 2014. Will I be able to leave the company with a one-month notice period by submitting resignation? Am I entitled to transfer to a new company as I have completed more than three years with the present sponsor? Am I obliged to pay 45 days’ salary as Article No. 127 of labour law is applicable in my contract? Please guide me.

It is learnt that, currently, the Ministry of Labour does not impose a ban on the employee if the employee has completed one year of continuous employment with his current employer. Since you have completed continuous employment for three years with your current employer, there should be no employment ban imposed on you should you wish to resign from your current employment.

Since you are employed on a limited period contract you may resign in accordance with the notice period specified in your employment offer letter or the employment contract.

Further, your entitlement to gratuity shall be in accordance with Article 132 of the Federal Law No. 8 of 1980 regulating Labour Relations 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 five years of service.

2) 30 days remuneration for each additional year of service provided the aggregate amount of severance pay shall not exceed two year’s remuneration. However since you are employed on a limited period contract, you are not entitled to severance pay should you resign from your employment before expiry of contract period in accordance with Article 138 of the Federal Law No. 8 of 1980 regulating Labour Relations 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 severance pay unless his continuous period of service exceeds five years.”

Article 127 of Federal Law No. 8 of 1980 deals with non-compete; not with compensating the employer for resigning pursuant to limited period employment contract, as stated by you in the question.

Article 116 of the aforementioned law states: “Where a contract is revoked by the worker for reasons other than those specified in article (121), he shall be required to compensate the employer for any prejudice the latter sustains as a result, provided the amount of compensation shall not exceed half the worker’s remuneration for three months or the residual period of the contract whichever is shorter unless the contract contains a provision to the contrary.” Therefore you should check your employment contract to determine whether you are obliged to compensate your employer for terminating a limited period employment contract.

Ashish Mehta, LLB, F.I.C.A., M.C.I.T., M.C.I.Arb., is the founder and Managing Partner of Ashish Mehta & Associates, a legal consultancy firm in Dubai. He also practises in India, United Kingdom and Singapore. He has worked with international and commercial legal procedures, providing analysis and counselling on complex legal documents and policies such as commercial transactions, securitisation, real estate acquisitions, financial restructuring for distressed assets, mergers and acquisitions, arbitration and litigation issues. Readers may e-mail their questions to: news@khaleejtimes.com or send them to Legal View, Khaleej Times, PO Box 11243, Dubai.