'Can I use a WhatsApp message as evidence to fire an employee?'

The employer says the person admitted to lying, has not achieved sales targets and has taken days off without a valid reason

DUBAI, UNITED ARAB EMIRATES. 15 AUGUST 2019. 

A man sends a whatsapp message.

(Photo: Reem Mohammed/The National)

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I hired a salesperson in February this year and had assigned him a sales target along with the remuneration details in the offer letter and this was signed by him as acceptance of the terms and conditions. However, he has not achieved the monthly targets and hence I gave him a termination letter with 30 days’ notice which he accepted.

Following this, I was made aware that he has been dishonest with me on multiple occasions and when I confronted him on this, he initially denied it but admitted to lying in a WhatsApp message. I would like to know if the WhatsApp message is grounds for immediate dismissal.

Furthermore, the same employee has taken multiple days off without giving a valid reason. Is it possible to send a warning letter or email stating that any additional leave without a valid reason will result in immediate termination? He is on an unlimited contract. KM, Dubai

There are various reasons that are deemed acceptable per UAE Labour Law, for the immediate dismissal of employees and these are listed under Article 120 which states: “The employer may dismiss the worker without prior notice in any of the following cases … e — Should the worker fail to perform his main duties in accordance with the employment contract, and fail to remedy such failure despite a written investigation on the matter and a warning that he will be dismissed in case of recidivism … f — Should he divulge any of the secrets of the establishment where he works … j — Should he be absent without valid cause for more than 20 non-consecutive days in one year, or for more than seven consecutive days.”  These clauses are the closest to the situation described and if the days off meet these criteria, KM can dismiss this employee immediately so it is acceptable to send a letter advising of the situation.

In respect of the WhatsApp message, I sought legal guidance from Pamela Haidat, solicitor and partner with Barker & Booth in association with Nasser Malalla Advocates, who advised: “Pursuant to Article 12 (1) of the Electronic Transactions Law any information transmitted or received by electric means constitutes valid evidence and meets the requirement for admissible evidence in the courts. Furthermore, pursuant to Article 8 of the same law, permits its use as evidence provided: 1. The electronic record is retained in the format in which it was originally generated, sent or received, or in a format which can be demonstrated to represent accurately the information originally generated, sent or received; 2. The information remains stored in a way that is accessible and usable for subsequent reference. Therefore, provided the receiver has retained the admission in its original format, it is admissible as evidence before the courts.”

Provided the employee has breached the terms of his contract in some way, or his actions fall into one of the categories in Article 120, the message can be used as grounds for dismissal. If the employee’s actions do not fall into any of these categories, the best thing would be to tell them they are not required to work, so to take what is known as ‘gardening leave’ until the end of the notice period.

My wife and I are keen to work in the real estate industry in Dubai. We are 63 and 61 years old respectively, and one of the real estate companies has said that "they cannot employ us" because they wouldn't be able to get a working visa for us. Is this true, as I believe that we could get a visa for 12 months and then renew it? Please advise what the process and costs we would have to pay. GS, South Africa 

For many years there was a nominal retirement age of 60 for expats working in the private sector but in January 2011, this was increased to 65. For most people this means they will be able to work until 65 if their employer wishes them to do so. Unlike most employment visas in the UAE, which are for two or three years, someone over the age of 60 may only be issued with a visa for a period of 12 months, so there will be additional costs and work in arranging this every year for an employer. This is why many are reluctant to take on employees over the age of 60. The other consideration is the cost of medical insurance which is mandatory for any employer in Abu Dhabi or Dubai. The older a person is the more expensive the cost of cover, so many employers do not consider it economically viable to take on new staff who are aged over 60, and they are not obliged to do so.

Note that the cost of visas, labour cards and medical insurance must be borne by the employer and may not be passed on to the employee so GS and his wife would not pay these, nor can they arrange their own visas to work for a company.

Keren Bobker is an independent financial adviser and senior partner with Holborn Assets in Dubai, with over 25 years’ experience. Contact her at keren@holbornassets.com. Follow her on Twitter at @FinancialUAE

The advice provided in our columns does not constitute legal advice and is provided for information only