What to do if you can't serve notice period in UAE

Q- I am employed as a manager in a mainland company based in the emirate of Dubai since May 2019.  The probation period mentioned in my employment contract is for six months and currently a week is remaining for its completion. Owing to the medical condition of my parents, I wish to resign from my employment and return home. However, my employment contract states a notice period of three months. Can I resign from my employment without serving the notice period? Am I required to serve notice period during the probation period?
Answer
As you are employed by an employer based in the mainland of UAE, the provisions of Federal Law No. (8) of 1980 regulating employment relations in the UAE (the 'Employment Law'), Ministerial Decree (765) of 2015 on rules and conditions for the termination of employment relations (the 'Ministerial Decree No. 765 of 2015') and Ministerial Decree No. 766 of 2015 on rules and conditions for granting permit to an employee for employment by a new employer (the 'Ministerial Decree No. 766 of 2015') are applicable.
As you have not mentioned whether your employment contract is of limited or unlimited duration, your query will be addressed by considering provisions of law which are applicable to employment both types of contracts.
As per the provisions of the Ministerial Decree No. 765 of 2015, it may be noted that an employment contract of limited duration between an employer and an employee may be terminated when either the employer or the employee terminates the employment contract at any time. This is in accordance with Article 1 (I) (5) of Ministerial Decree 765 of 2015, which states: "An employment relation between employer and employee may be terminated as follows:
I - 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 following instance occurs:
5- Either party (employer or employee) acts unilaterally to terminate the contract without complying with the legal steps that are described in clause (4) of this article, and for no reason of non-compliance by the other party; in this case the terminating party bears any legal consequences of early termination."
It may be noted that an employment contract of unlimited duration between an employer and an employee may be terminated when either the employer or the employee terminates the employment contract at any time. This is in accordance with Article 1 (II) (3) of Ministerial Decree 765 of 2015, which states: "An employment relation between employer and employee may be terminated as follows:
II - In the case of unlimited (not term-bound) contracts, an employment relation is terminated if the following instance occurs:
3- One party (employer or employee) acts unilaterally to terminate the contract, without complying with the legal conditions described in (2) above and without reason of non-compliance by the other party; in this case the terminating party bears any legal consequences of early termination."
If you do not adhere to the notice period (three months) mentioned in the employment contract, you may be obligated to compensate the employer by paying remuneration for the number of days for which you have not served the notice period. This is in accordance with Article 119 of the Employment Law, which states: "Where either the employer or the employee fails to serve a notice of termination on the other or reduces the period of notice, the party obliged to give the notice shall pay the other party a 'compensation in lieu of notice', irrespective of whether or not the other party has sustained damage as a result of such failure or shorter notice. The said compensation shall be equal to the employee's salary in respect of the entire or reduced period of notice. Compensation in lieu of notice shall be calculated on the basis of the last salary received, in the case of monthly, weekly, daily and hourly paid employees, and on the basis of the average daily wage referred to in Article 57 of this law in the case of those paid on piecemeal."
In response to your query regarding the notice being served during the probation period, it may be noted that an employee may serve a notice to the employer regarding their resignation during the probationary period. However, it may be pertinent to note that termination of an employment contract within six months of its commencement may attract an employment ban on you in future for a specified period of time as decided by the Ministry of Human Resources and Emiratisation (MOHRE). This is in accordance with Article 1 (I) (2) of Ministerial Decree No. 766 of 2015, which states: "The two parties (employee and employer) mutually consent to terminating the contract during the course of its term, provided the employee has completed a period of no less than six months with the employer; the latter provision is waived for employees that qualify for skill levels 1, 2 and 3, as per the ministry's classification."
Based on the aforementioned provision of Ministerial Decree No. 766 of 2015, the MOHRE may impose an employment ban on you in future if you are not a skilled professional as mentioned in MOHRE's classification. It may, therefore, be prudent on your part to continue to work until you complete your probation period considering it will complete in a week's time. Thereafter, you may terminate the employment contract without serving the notice period and compensate your employer monetarily in lieu of notice. Further, as mentioned Article 1 of the Ministerial Decree No. 766 of 2015, you may also approach your employer and place a request to mutually terminate your employment contract.
Know the law
Where either the employer or the employee fails to serve a notice of termination on the other or reduces the period of notice, the party obliged to give the notice shall pay the other party a 'compensation in lieu of notice'.
Ashish Mehta is the founder and Managing Partner of Ashish Mehta & Associates. He is qualified to practise law in Dubai, the United Kingdom 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.