CC BY
13912.00.05-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
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
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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
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
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.
