Question: My wife is a doctor working on a limited period employment contract for two years starting from October 2017 at a medical clinic in Dubai. The contract states that if the employer or employee intends to terminate it, the notice period to be served by either of them will be two months.
My wife applied for three months of maternity leave in the first week of January 2019 starting from March 14, 2019 to June 14, 2019. This would include 45 days of paid leave salary as per employment law of the UAE and the rest would probably be unpaid as she does not want to use her annual leave. Her employer did not reply to the aforementioned leave request. In February 2019, they informed her that they will close the clinic and served her with two months' notice from February 9, 2019 to April 9, 2019, terminating her employment contract. Since she is expected to deliver the child around second week of March 2019, she will not be able to serve the complete notice period.
What will happen to her remuneration of March and April? What happens to her annual leave balance and how will her 'end of service' benefits be calculated?
Pursuant to your queries, your wife's employer should not terminate her from employment once she has requested them for maternity leave. Any reason for termination of employment by employer without any valid reason may be termed as arbitrary termination. This is in accordance with Article 122 of the Federal Law No. 8 of 1980 regulating Employment Relations in the UAE (the 'Employment Law'), which states: "An employee's service shall be deemed to have been arbitrarily terminated by his employer if the reason for the termination is irrelevant to the employee and, more particularly, if the reason is that the employee has submitted a serious complaint to the competent authorities or has instituted legal proceedings against the employer that has proved to be valid."
Since, your wife's employer is terminating her employment without any valid reason, she may claim for additional remuneration for up to 3 months under arbitrary dismissal. This is in accordance with Article 123 (a) of the Employment Law, which states: "Where an employee is arbitrarily dismissed, the competent court may order the employer to pay him compensation. The court shall assess such compensation with due regard to the nature of the work, the amount of prejudice he/she has sustained and his/her period of service, and after investigating the circumstances of the work. The amount of the compensation shall in no case exceed the employee's remuneration for three months calculated on the basis of the last remuneration he was entitled to."
However, if the employer proves that they are really closing the business and are not giving an excuse, then your wife may not be in a position to claim her termination of employment on arbitrary grounds as mentioned above.
Further, your wife has already submitted her maternity leave application and is expected to deliver a child in the month of March 2019 which comes under the notice period issued by her employer. Considering your wife's health and that of the child, she can refrain from attending her office from the day as advised by her doctor. Therefore, your wife may claim from her employer the maternity leave salary as mentioned in Article 30 of the Employment Law from her actual day of leave due to pregnancy till the last of employment.
Further, your wife is entitled to claim salary for annual leave which are not availed during the course of employment with her employer. This is in accordance with Article 79 of the Employment Law, which states: "Where an employee is dismissed or leaves his employment after the period of notice prescribed by law, he shall be entitled to remuneration in respect of any days of annual leave not taken. Such remuneration shall be calculated on the basis of the remuneration that he earned on the date on which the leave became due."
Since your wife's termination is assumed as arbitrary, she is entitled for end of service benefits even though she is on limited contract and did not complete two years of service. This is in accordance with Article 123(b) of the Employment Law, which states: "The provisions of the preceding paragraph shall not prejudice the employee's right to the gratuity he/she is entitled to and the termination notice allowance provide for in this law."
Your wife is entitled to claim 21 days of gratuity pay per year for completed year of service as mentioned in Article 132 of the Employment Law and proportionate for the rest of the period of service.
Know the law
An employee's service shall be deemed to have been arbitrarily terminated by his employer if the reason for the termination is irrelevant to the employee and, more particularly, if the reason is that the employee has submitted a serious complaint to the competent authorities or has instituted legal proceedings against the employer that has proved to be valid.
Ashish Mehta is the founder and Managing Partner of Ashish Mehta & Associates.
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