Rescinding Of A Determined Employment
With the right to employment comes another essential related right which is the right to choice of one’s employment. The right to choice of one’s employment gives the freedom to people to undertake work of their own choice and not toil in the field in which they do not wish to put their labor. Laboring against the will of one’s self can be considered to be forced labor which is illegal in UAE and most of the other countries in the world. Employment contract is an agreement between the employer and the employee where the employee agrees to work for the employer for a fixed period of time and for a specific job – role. Employment contracts sometimes do not fix the duration of employment in which case the contract is known as an undetermined contract whereas determined employment contracts are contracts that bind the employee to the employer for a fixed period of time. Employment contracts are not considered as forms of forced labor as both the employee and employer willingly enter into it but in the long run it may be considered as forced labor as the main aim to fix a duration is to ensure that the employee does not leave the employment before that duration even if he wishes to and therefore once the employee signs an employment contract he has to work for the employer for the number of years fixed by the employment contract and the employee loses his right to leave quit the employment before that period. Though this is not considered forced labor it is in reality a different form of forced labor behind the veil of an enforceable contract.
In the United Arab Emirates the right to employment and all related rights enumerated in its rich constitution is only limited to the nationals of the United Arab Emirates whereas the rest of the people who live here as expatriates have to solely depend on employment contracts and therefore become the victims of the veiled forced labor. The present article discusses the regulations enumerated in the labor law1 for ending the employment and the consequences of breach of employment contracts of fixed duration.
According to the labor of the UAE the employer may on grounds enumerated in article 120 of the federal law no.8 of 1980, rescind the employment contract without giving notice. The grounds enumerated for rescinding of the employment without notice are as under:
1. In case the worker assumes a false identity or nationality, or submits false certificates or documents.
2. In case the worker had been appointed under probation, and the dismissal had taken place during or at the end of the probation period.
3. In case the worker commits an error resulting in colossal material losses to the employer. In such cases the Labor Department should be notified of the incident within 48 hours of the knowledge of the occurrence thereof.
4. In case the worker violates the instructions related to the safety at work or in the work place, provided that such instructions were written and posted in a prominent location, and that the said worker is notified thereof if he be an illiterate.
5. In case the worker fails to perform his main duties in accordance with the employment contract, and thereafter fails to remedy such failure despite a written investigation on the matter and a warning that he would be dismissed in case of recidivism.
6. In case the worker divulges any of the secret of the establishment where he works.
7. In case the worker convicted in a final manner by the competent court in a crime relating to honor, honesty or public ethics.
8. In case the worker is found in a state of drunkenness or under the influence of a narcotic during work hours.
9. In case the worker assaults the employer, responsible manager or co – worker during the work hours.
10. In case the worker remains absent without valid cause for more than twenty non – consecutive days in one year, or for more than seven consecutive days.
In case none of the above circumstances described applies to a case yet the employer terminates the employment of the worker without notice before the expiration of the determined employment contract, the employer has to provide compensation to the employee for the same. The compensation amount that is provided to the worker by the employer is in lieu of the damages suffered by the worker due to the premature termination of the employment. The law provides for a limitation to the amount of compensation which is limited to the total wage due for the period of three months or for the remaining period of the contract, whichever is shorter, unless otherwise stipulated in the contract. Therefore this provision is subject to the terms of the contract. Many times the contract has liquidated damages fixed for specific breaches; in such cases the damages awarded do not exceed nor are less than the liquidated amount.
Similar provisions are also provided in case the worker decides to leave the employment before the expiration of the employment contract. The worker may leave the employment before the expiration of the contract without notice if the following circumstances prevail:
1. In case the employer breaches his obligations towards the worker, as set forth in the contract or the law.
2. In case the employer or the legal representative thereof assaults the worker.
In case the two circumstances mentioned above do not prevail and yet the worker leave the employment prior to the expiry of the employment contract, the worker is be bound to compensate the employer for the loss incurred by him due to the rescission of the contract. The compensation amount is limited by the law to not exceed the wage of half a month for the period of three months, or for the remaining period of the contract, whichever is shorter, unless otherwise stipulated in the contract. Thus here too the terms of the contract if any regarding this matter shall be made applicable in a manner similar as it is explained above regarding termination of employment contract by employer.
These provisions mentioned above hold good only to the citizens of UAE, for the rest of 88% of the population the provision stipulated in article 128 of the law2 applies. Article 128 provides that in the event of a non – national worker to leave his work without a valid cause prior to the end of the contract with definite term, he may not get another employment even with the permission of the employer for a year from the date of abandonment of the work. It further provides for a warning for the employers that they may never knowingly recruit the worker or retain in his service during such period. The Non – national workers may be exempt from such penalties if they can secure an authorization of the original employer and after submitting such authorization in the ministry of labor and social affairs, attain the consent of the ministry for the new employment.