Научная статья на тему 'A THOROUGH REVIEW OF THE COMMON LAW CONCEPT OF "ARBITRARY TERMINATION" AND "UNFAIR DISMISSAL" (including DIFC&ADGM'

A THOROUGH REVIEW OF THE COMMON LAW CONCEPT OF "ARBITRARY TERMINATION" AND "UNFAIR DISMISSAL" (including DIFC&ADGM Текст научной статьи по специальности «Экономика и бизнес»

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Arbitrary termination / Arbitration law / Arbitral Tribunal / misconduct / house holding's working / armed forces / agricultural workers / DIFC law / ADGM law / unfair dismissal / labor law / UAE Labor Law / common law / civil law. / Arbitrary termination / Arbitration law / Arbitral Tribunal / misconduct / house holding's working / armed forces / agricultural workers / DIFC law / ADGM law / unfair dismissal / labor law / UAE Labor Law / common law / civil law.

Аннотация научной статьи по экономике и бизнесу, автор научной работы — Bakhramova Mokhinur

It is crucial to distinguish between unfair dismissals from the common rule that is enforced for wrongful dismissal. The latter is a civil law remedy, formed mainly by infringement of the employment contract. From the worker's point of view, this civil law as a solution involves major flaws. Civil law offers no redress by restoration. Although, as a rule, the employer has the right to terminate following the expiration of the applicable notice period in compliance with the terms of the contract as provided for in the contract, the harm would always be limited to loss of earnings during this time. Common Labor Legislation consists of several legal provisions working places in various laws. Employment Agreement shall be considered current if the employee (service) is obliged to provide service for a certain period of time (to the employer). Staff who depend on the employer personally and economically possess the right to work under labor legislation (personal labor law), (Collective labor legislation), procedural laws and conditions, health and safety issues. This is the main purpose of the right to work, eliminating the social imbalance between employees and employers. It is an important part of social policy. In contrast to European countries, the termination of business relations may be more complicated, particularly for long-term employees, the UAE can simplify the employment of a worker by giving the agreed number of employers.

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A THOROUGH REVIEW OF THE COMMON LAW CONCEPT OF "ARBITRARY TERMINATION" AND "UNFAIR DISMISSAL" (including DIFC&ADGM

It is crucial to distinguish between unfair dismissals from the common rule that is enforced for wrongful dismissal. The latter is a civil law remedy, formed mainly by infringement of the employment contract. From the worker's point of view, this civil law as a solution involves major flaws. Civil law offers no redress by restoration. Although, as a rule, the employer has the right to terminate following the expiration of the applicable notice period in compliance with the terms of the contract as provided for in the contract, the harm would always be limited to loss of earnings during this time. Common Labor Legislation consists of several legal provisions working places in various laws. Employment Agreement shall be considered current if the employee (service) is obliged to provide service for a certain period of time (to the employer). Staff who depend on the employer personally and economically possess the right to work under labor legislation (personal labor law), (Collective labor legislation), procedural laws and conditions, health and safety issues. This is the main purpose of the right to work, eliminating the social imbalance between employees and employers. It is an important part of social policy. In contrast to European countries, the termination of business relations may be more complicated, particularly for long-term employees, the UAE can simplify the employment of a worker by giving the agreed number of employers.

Текст научной работы на тему «A THOROUGH REVIEW OF THE COMMON LAW CONCEPT OF "ARBITRARY TERMINATION" AND "UNFAIR DISMISSAL" (including DIFC&ADGM»

12.00.05-Labour law. Bakhramova Mokhinur,

PhD Researcher at Tashkent state university of law,

ORCID: 0000-0001-8686-6005 E-mail: [email protected]

A THOROUGH REVIEW OF THE COMMON LAW CONCEPT OF "ARBITRARY TERMINATION" AND "UNFAIR DISMISSAL"

(including DIFC&ADGM)

A R T I C L E I N F O

A B S T R A C T

Keywords:

Arbitrary termination, Arbitration law, Arbitral Tribunal, misconduct, house holding's working, armed forces, agricultural workers, DIFC law, ADGM law, unfair

dismissal, labor law, UAE Labor Law, common law, civil law.

It is crucial to distinguish between unfair dismissals from the common rule that is enforced for wrongful dismissal. The latter is a civil law remedy, formed mainly by infringement of the employment contract. From the worker's point of view, this civil law as a solution involves major flaws. Civil law offers no redress by restoration. Although, as a rule, the employer has the right to terminate following the expiration of the applicable notice period in compliance with the terms of the contract as provided for in the contract, the harm would always be limited to loss of earnings during this time.

Common Labor Legislation consists of several legal provisions working places in various laws. Employment Agreement shall be considered current if the employee (service) is obliged to provide service for a certain period of time (to the employer). Staff who depend on the employer personally and economically possess the right to work under labor legislation (personal labor law), (Collective labor legislation), procedural laws and conditions, health and safety issues. This is the main

purpose of the right to work, eliminating the social imbalance between employees and employers. It is an important part of social policy.

In contrast to European countries, the termination of business relations may be more complicated, particularly for long-term employees, the UAE can simplify the employment of a worker by giving the agreed number of employers.

Introduction required to obey to UAE

There are no legal Federal Law No.8 of 1980, as

remedies based on breach of amended ("UAE Labor Law") -

contract, for failure to comply the fundamental laws

with valid complaints and concerning employment

disciplinary procedures before situations in the UAE - when

dismissal. "However, it will be implementing disciplinary action

stated below that the against to an employee.

development of the concept of Legal arrangements that

unfair dismissal and the number strictly regulate the application

of remedies available to it may of penalties listed in Article 110

have given the employee an of the United Arab Emirates

ironic result that he may Labor Law may not be

ultimately be less satisfied with established:

the consequent unwillingness 1.The employee has been

on the part of potential notified in writing of the

employers to expose allegations against him;

themselves to the 2.The employee has been

consequences of using an given an opportunity to

individual who, in time, wiH be comment on the allegations;

able to pursue such a strong 3.^ employer has

relief from them" [6]. .. . . . ,

investigated any defense

Results and Discussion , , ,

provided by the employee in

The individual employers

(all off shore zones in the UAE respect of the allegations; and other than the DIFC) are

4.The process listed in (1) and the employment of the

to (3) above is recorded in the employee is arbitrary.

employee's personnel file, and In labor law experience,

the penalty noted at the bottom the Courts only accept a

of the report termination to be "valid" and

There are very severe time thus decline to award arbitrary

limits to disciplinary action. The dismissal compensation, where

director shall start his either (i) the employee is guilty

disciplinary activities during 30 of one of the specified (and

days after the beginning of the exhaustive) gross misconduct

regulatory process, and any type reasons listed in Articles

disciplinary measures should 88 and 120 of the UAE Labor

be followed within 60 calendar Law, or (ii) the employee is a

days after consideration has poor performer (and there is

been finished. documentary evidence

"An employer may supporting the poor

terminate an employee working performance or misconduct).

under an unlimited term The biggest

contract at any time on written reimbursement to be granted to

notice, provided the employer an employee according to an

follows the process set out arbitrary termination request is

above, gives the employee the 3(three) months' earnings,

correct written notice of calculated based on the late

termination in accordance with salary received by the

the employment contract and employee prior to termination.

the dismissal is for a "valid For these goals, "remuneration"

reason"." Notice period should is the employee's full pay

be at least 30 calendar days. (fundamental salary plus any

Although the United Arab monthly allowances). In

Emirates Labor Law does not addition, where the employee

contain a "justifiable reason", receives a systematic or

the termination of the case is guaranteed award or

"not related to employment", commission installments, these

may also be taken into account

by the Court when deciding the offense) or wait for the final

employee's payment. The real judgment against the employee

size of the award, if any, is before filing a complaint with

eventually controlled by the the police and approving their

Court. Whilst the cap on final judgment. A national of the

compensation might be United Arab Emirates requires

recognized from a costs- the employer to notify the

benefits proportion as Ministry of Labor 30 days

impartially low-risk by some before its decision is approved

employers, what should not be for completing the dismissal. overlooked or deducted is the Article 122 of the Labor

unavoidable management time Law prohibits arbitrary

and legal fees that will be disclosure if there is a non-

incurred in protecting a claim business reason. The article

presented by an aggrieved also states that "if the employer

employee. has made a serious complaint

It is essential for the to the competent authorities or

employer to adhere to a fair has enforced legal action

and equitable process to against the employer, then that

eliminate the impossibility of would be even more". The

applying less penalties against Labor Code does not provide

employees, and any penalties additional guidance on cases

are supported and justified by where the termination of a case

documentary evidence. This is considered unjustified and is

should be applied equally to part of arbitrary conduct of the

cases of misconduct made employer in the United Arab

under Articles 88 and 120 of Emirates. the Labor Code of the United An example of the

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Arab Emirates and the abolition dismissal of the United Arab

of the judgment. In the essence Emirates courts is that it is

of the offense, employers may unfair, and it justifies

be required to inform the acting compensation for the

public authority (differently employee: depending on the type of

S If the employer violated the obligations stipulated in the labor contract or the legislation, including the obligation to pay the employee's salary within the term specified in the employment contract, and the employee has terminated his work; and

S If the employer has violated the terms of the employment contract and has been proven to be an act of abrogating such obligation.

It is recommended that employers comply with the minimum requirements set by the United Arab Emirates Business Act (Disability Policy, Human Resources or Freelance Policy). Any disciplinary policy should be made available to all staff, accessible to them, and guided by a disciplinary process.

The basic laws governing labor relations in the United Arab Emirates are 1981, No 24, 1981, No 15, No 12 and No 8 (Labor Legislation) and the Ministry's instruction to execute those provisions.

• Staff assigned to federal and local government officials, employees and federal and local government projects.

• Households working in private homes.

• Armed forces, police and security personnel.

• Agricultural workers (repairs of agricultural machinery).

• Employees working at Abu Dhabi Global Market (ADGM) and usually working for ADGM. These employees are eligible for ADGM Employment Law No.1 of 2014.

• Employees working at DIFC and working in the DIFC are usually employees of the Dubai International Financial Center. These employees have amended DIFC Labor Act No. 4 (2005 DIFC Labor Law).

However, in practice, the courts of the United Arab Emirates generally have the jurisdiction, usually when they are not handled by DIFC or ADGM (unless they believe that they have assumed the jurisdiction of the DIFC or ADGM) jurisdiction.

DIFC's sovereign The residence and job permits

workflow, DIFC Labor Act are valid for a cycle of three

(DIFC Act 4/2005, amended) years and may be renewed due

settles business-related to the diplomatic eclipse among

problems in DIFC. Dubai the two countries, Qatari

International Finance Center citizens, who are not currently

(DIFC) is a free zone that allowed to the United Arab

manages under the legal Emirates, are only one

system of the UK law. It does exclusion. The United Arab

not depend on the arrangement Emirates labor regime is closely

or method of act of other free connected to the immigration

zones or areas of the UAE. It is regime. Residents of other

significant that the DIFC has no countries could not work legally

concept of dismissal and in the DIFC, without the right to

therefore, there is no dismissal employ and the right to address

compensation. However, there for labor permission by a

are accurate and clear domestic licensed or registered

prejudicial rules. DIFC does not legal department.

have employer requirements or The DIFC Business Act

policies or employment does not include any particular

regulations for UAE citizens. rules controlling or settling post-

The passport holders of contractual limitations.

the United Arab Emirates and However, since DIFC is a

other Gulf Cooperation united authority (with respect to

Councils (GCC) are the common civil jurisdiction of

commented narrowly differently, the United Arab Emirates), the

since they buy or purchase a DIFC courts may force limits on

place residence permit of the the employer's labor contract

United Arab Emirates not after certain terms, and this is

required (The Concept of due to the English legal rules -

Freedom of Movement in its degree, expanse and length

Different States of GCC and does not have a

Membership). However, there is reasonable need to preserve

still a request for a DIFC card. the benefit of the employer's

82

legitimate labor interests. The A solitary figure of ADGM

SISC can take juridical action is the drafting of a new

against the worker, but in authority, but another feature is

implementation this can only be the development of a new

done in the DIFC territory. regulatory body. Most workers

These procedures could not be currently employed by ADGM

productive if the employee are allocated to the Ministry of

chooses to work externally from Labor ("MOL"). Their

the DIFC. employees are granted labor

As with the Dubai cards (work permits) and

International Finance Center employers' MOL observations

("DIFC") ADGM becomes a and supervision. There are

private free zone and controls some state-owned

as a new authority from the organizations in the region that

United Arab Emirates and does do not have MOL.

not observe with the UAE civil In the case of the Free

and commercial laws. Any Zone, the migration process will

misdiagnosis of common law is be licensed by employers with

addressed to a section of the the ADGM Free Zone Territory

ADGM law with suitable and ("FZA"), and employees will be

detailed measures so as not to granted with free entry visas.

be postponed by ADGM, and its From the point of view of the

common law applies. This was right to work, this is to cancel

not a sudden event because one job and start another. It is

ADGM composes a legitimate important to consider how to

legal environment for deal with benefits calculated by

international banks and the employer as well as the end

financial institutions. of the annual leave. The From the point of view of majority of employers are

employment, the Rules expected to work to achieve

carefully apply to the these new benefits through

requirements of the DIFC and existing contracts.

differ from a number of key "In Abu Dhabi (but not for

areas of the UAE. the employee's visa) it is not

83

clear yet whether this will government-sponsored bodies.

change under the new regime. Codes are illegal and not

From an employer's mandatory, but they should be

perspective, the FZA will considered by the Labor

replace the MOL as the Tribunals, taking employers into

regulatory and oversight body. account. Contract law (based

Generally speaking, free zones on customary law) plays an

are considered more relaxed essential role in protection.

about providing permission for There is plenty of

hybrid working arrangements employment in the European

and short term working Union. As Part of the European

arrangements. Union (EU), Britain is

Most free zones have a subordinate to the EU business

mediation process (with legislation, some of which are

different levels of formality) that directly related to the UK but

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must be exhausted by the most of them define minimum

parties to an employment standards must be made locally

dispute before a party can file a by each Member State. Thus,

case in court and it remains to there are many laws in Member

be seen whether this is followed States different from those of

in ADGM. the same EU law.

Overall the regulations are "At Common Law, an

likely to be welcomed by employer can terminate the

employers and without a doubt, services of an employee

they send out a powerful without giving reasons,

message that ADGM is open provided that the appropriate

for business. period of notice is given in

Labor protection in Great accordance with the applicable

Britain is primarily legitimate. contract. However, this position

Additionally to legal provisions has been altered by the Act,

(by courts and, For example, which establishes certain

years of the workplace), some minimum procedural standards

areas (e.g. discrimination and an employer must follow prior to

dismissal) are issued by terminating the services of an

84

employee who is eligible to claim unfair dismissal".

According to the Common Law system for arbitrary termination following

circumstances should happen, such as:

• Whether or not the employer has an explanation to do so whether the job is terminated and whether the employer has been granted or not so with the opportunity to respond;

• Whether there are valid reasons to stop based on the employee's capabilities or behavior according to the employer's operational requirements;

• Lacks of alerts or warnings are given to the employee prior to termination of the case.

Discrimination claims should normally be granted before Labor court. As discussed above, the time limits are short, and claims must be filed within three months of the appearance of the complaint. If temporary discrimination

persists, the time will come from the last movement in the

chain. Complaints on the same charge the law can be enforced at any time or in the following cases:

I. Within six months of employment termination (for requests in front of the Labor Courts); or

II. 6 years (for prior notice) traditional courts).

Compensation is the main tool of guilty behavior and it gives advice to the Tribunal that the employer has taken concrete steps to eliminate discrimination

actions.

"There are five reasons that are treated as "fair" reasons under the legislation:

(i) Redundancy (where an employer reduces the number of employees in a particular role and/or at a particular site);

(ii) Misconduct;

(iii) Capability (i.e., performance issues or inability to do a job);

(iv) Where continued employment would breach a legal duty (such as allowing a disqualified driver to continue to drive); and

(v) Some other substantial redundancy is genuine (i.e.

reason, which acts as a catch- other employees are also being

all category." made redundant and the

In contrast to the Common specific job in question should

Law system, Labor disputes in not be taken by another

the United Arab Emirates are employee etc.).

subject to the jurisdiction of the "Examples of where the

United Arab Emirates courts UAE Courts have held a

following the initial intermediary dismissal to be unfair thereby

sent to the United Arab entitling the employee to

Emirates Ministry of Labor. compensation include:

Courts of the United Arab • where an employer has

Emirates are not affiliated with been in breach of his

the precedent, and similar obligations under the

cases are considered on a employment contract or those

case-by-case basis. In general, provided by law, including the

it should be noted that labor obligation to pay an employee's

laws have agreements for a salary within the timeframe laid

"certain period" (ending in a down in the employment

certain period of time) and contract and this has caused

"explicit" (without agreement). the employee to leave his

The Labor Law provides employment; and

detailed information on the • where an employer has,

terms and conditions of the by his oppressive acts and his

employment contract and its breach of the conditions of the

financial consequences. employment contract, put the

The UAE Courts have, employee in a position that

however, held that, for makes it appear that it is the

contracts that do not have a employee who has terminated

fixed term, redundancy is a the contract (whatever may

valid reason for termination and have been the form of the

will not be treated as arbitrary. termination), provided that it is

The employer will, however, proved that it was the acts of need to show that the

the employer that gave rise to all workplace protection can be

such termination." abolished, as the protection of

In evaluating the amount the employee against the

of compensation for unjustified employer has so far been

dismissal, the United Arab extended.

Emirates emphasized the need "Until recently,

to pay attention to the type of redundancies in the GCC were

work: the degree of damage practically a non-existent

and employment. phenomenon, which is

However, Article 123 of fortunate as labor laws aren't

the Labor Law stipulates that exactly generous towards the

compensation for unjustified employee. However, with the

dismissal should not exceed economic crisis exerting an

three months' wage unless the ever-tightening grip in the

contract expires. In this region, it is worth knowing what

situation, the employee will be rights one should have.

entitled to compensation in the The UAE labor law doesn't

amount equal to the amount of recognize the concept of unfair

wages for the three months' dismissal, so if you believe

wage and the remainder of the you've been ousted unjustly,

contract balance, with the you'll struggle to receive

consent of the employee to the significant compensation.

higher level of compensation. The closest thing to this is

Conclusion called 'arbitrary dismissal',

Although the evidence in where an employee loses their

the preceding paragraph may job for reasons other than an

well be seen as tongue in inability to perform their duties.

cheek, it can be said that it is Even then, the maximum

worth re-evaluating the compensation is only three

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effectiveness and equilibrium of months' salary.

the current law approach in It was undeniably accurate

cases of dismissal. Of course, and appropriate that the

since 1971, it is unrealistic to previous general legal

suppose that the cancellation of approach of 2002 Labor Law to

87

the damage compensation in may cause discomfort to the

case of forced dismissal on the worker.

strict application of the

Convention principles was

insufficient to protect the

employer from the ability to

understand very long in favor of

the supplier.

This creates a threat to avoid employers' employment, and they are reluctant to nominate candidates or even refuse to appoint them, fearing the financial consequences of terminating their employees. As shown, the introduction of legal disciplinary and procedural procedures in October 2004 entails a great deal of interference in matters that can be voluntarily exercised by the legislature or is insufficiently adequate. The key argument set out above is that, despite the employer's illicit restriction, the consequences of non-compliance with disciplinary regulations - should not be forgotten that the new law governing the law-abiding behavior is also in the workplace (a complaint procedure for the dismissal)

References:

1. UAE Constitution, 1971

2. UAE Civil Procedure Law, 1992

3. UAE Employment Law, No.8 of 1980

4. The DIFC Employment Law No.4 of 2005

5. Abu Dhabi Global Market(ADGM) Law, 2015

6. Margaret L. Moses , The Principles and Practice of International Arbitration, 2012

7. O'Sullivan, Arthur; Sheffrin, Steven M. Economics: Principles in Action. Upper Saddle River, New Jersey: Pearson Prentice Hall, 2003.

8. John P. Campbell, "Taft, Roosevelt, and the Arbitration Treaties of 1911," Journal of American History, 1966, 53#2 pp: 279-298

9. Nelson M. Blake, "The Olney-Pauncefote Treaty of 1897," American Historical Review, 1945, 50#2 pp. 228-243.

10. Baker & McKenzie, "The Global Employer: Focus on Termination, Employment Discrimination, and Workplace Harassment Laws", 2012

11. Paul Clarke, "What rights do you have to claim for unfair dismissal in the UAE?" Available at: https://news.efinancialcareers.com/gulf-en/13466/what-rights-do-you-have-to-claim-for-unfair-dismissal-in-the-uae.

12. Ola Al-Kadi, "Unfair dismissal in the UAE", Available at: https://www.globalworkplaceinsider.com/2013/09/unfair-dismissal-in-the-uae-2.

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