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Abu Dhabi, UAETuesday 25 September 2018

Can my former employer withhold my gratuity until they see my new visa?

The Dubai resident does not want to show them his new visa as he is now working for a competitor

The reader had a non-compete clause in his last contract and is concerned he will not receive his gratuity payment. istockphoto.com
The reader had a non-compete clause in his last contract and is concerned he will not receive his gratuity payment. istockphoto.com

After resigning and having my visa cancelled, my company, part of a well-known international brand, does not want to pay my end of service gratuity until I provide them with a copy of my new visa. In theory, the new company is a competitor and I had a non-compete clause in my last contract. During my exit interview they didn’t mention any of it, just explaining that I will receive the gratuity right away and I am quite shocked as they are acting against the UAE law. What would you advise for the next step? FB, Dubai

This company is indeed acting in a way contrary to UAE Labour Law. An end of service gratuity ought to be paid at the same time as the final salary payment when an employee stops working. To cancel a visa, an employee is asked to sign paperwork stating that all monies owed have been paid so I presume FB did this, trusting the employer to make the payments. I strongly recommend that no one signs this kind of document until they are actually in receipt of payment as it can cause issues when making a case against a company. Despite that FB still has a case for non-payment of monies.

No former employer has the right to see any new employment visa and this demand is unjustifiable. It is not uncommon for employees to have non-compete clauses in contracts but for them to hold up legally such clauses must be reasonable. The clause must only limit conduct in a way that is necessary to protect legitimate business and legal interests and cannot be for long periods. UAE Labour Law permits these clauses but they are really intended for senior staff who are privy to confidential company information, not as a way of limiting the career options of employees who choose to leave service. Few that I have seen would ever stand up in a court and the onus would be on the employer to bring a case for which they would have to pay fees.

If the ex-employer refuses to make the payment, demanding sight of information to which they have no legal right, FB needs to register a case at the Ministry of Human Resources and Emiratisation or the local labour office. The Ministry helpline is 800 665.

I was fired in 2014 and left the UAE. At that time, I had one small credit card debt of around Dh7,000 that I was unable to pay. I asked a friend in Dubai to go to the recovery departments of this bank and negotiate with them, but unfortunately he never did so. Then his visa was also cancelled and he left the country too. I was in no shape to go back to Dubai myself at that time. Now, I want to go back and clear this amount. Would I be caught and jailed in Dubai or any other UAE airport? If I am caught, will they allow me to pay the amount and then release me immediately, or will I have to complete the sentence? ID, The Philippines

ID left the UAE a long time ago and my first question is why he has not previously been in touch with the bank to which he owes money? All banks can be contacted by telephone or email to find out how much is outstanding and to agree settlement of the debt. As several years have passed and no payments have been made, the amount of Dh7,000 will have increased significantly due to the interest payments over this time, plus possibly additional penalties.

ID needs to contact the bank directly to find out how much he owes and agree to a method of repayment. The bank can tell him if a police case has been registered so that he knows if he will have an issue entering the UAE. If there is a case, it will cause problems as he would be stopped on re-entering and most likely be taken into custody.

If the monies are repaid in full, the case will be lifted and no further time will be needed to be served but only once the bank has asked for the complaint to be revoked. It is far better to resolve this matter before attempting to return to the UAE. If the debt is repaid in full before returning to the UAE, I recommend ID obtains written confirmation from the bank stating that there is no further liability and any police case had been cancelled for the avoidance of any doubt.

As for asking a friend to visit a bank to discuss a debt, that idea was a non-starter. No bank is permitted to discuss personal banking issues with a third party due to client confidentiality and data protection rules.

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.

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