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Abu Dhabi, UAETuesday 25 September 2018

Retaining an employee's passport is against the law

Passports can only be held by an employer for visa-related concerns such as applying for a new visa or renewing or cancelling the visa. 

For expatriate residents, an original and valid individual passport with residence visa is required, as is a parent's ID card and a passport photo with a white background.
For expatriate residents, an original and valid individual passport with residence visa is required, as is a parent's ID card and a passport photo with a white background.

I have a question about my passport being illegally help. I want to go back to my home country but my employer, in a free zone in Abu Dhabi, is holding my passport and I do not want to pay them money to leave. They told me that I can resign if I pay them around Dh4,000. At the end of this month I will have worked for them for six months and I have given them my resignation letter to say that my last working day will be the first week of August. What action should I take to get my passport back? IE, Abu Dhabi

There are two issues here. One is the illegal retention of an employee’s passport and the second is the request for payment on resignation. Both of these are against the law. The UAE government has made its position regarding the retention of employee passports very clear and the legal department of the Ministry of Human Resources & Emiratisation (MoHRE formerly The Ministry of Labour) has advised that “retaining workers’ passport also amounts to forcible work in violation of International Labour Organization (ILO) Convention on the Abolition of Forced Labour, to which the UAE is a signatory". Passports should only be held by an employer for a limited period when arranging, renewing or cancelling visas.

It is also very clear under UAE law that no employer is permitted to pass on the costs of employing a person to the employee and this is covered in Ministerial Order 52 of 1989, Article 6, which clearly states that all expenses incurred in taking on an employee must be borne by the employer. Sadly, it is all too common for employees to try and reclaim costs from departing employees but the MoHRE will back up an employee in this situation.

Given the two issues, and as IE has provided proper written notice, he needs to register a case at his local labour office or directly with MoHRE, via their helpline on 800 665, to ensure that the employer acts correctly. If a passport is not returned by an employer an individual can also make a complaint to the police.

My old employer has already cancelled my visa and I have shown this to my new employer who is applying for a new visa. My employer has given me one week to leave the accommodation they provide and my new employer has told me we cannot give you accommodation until your new visa has issued. I would like to know if my old employer can force me to leave the accommodation after a week or if I can stay here until I have my new visa. IK, Abu Dhabi

Where an employee is provided with accommodation as part of the terms of their employment, Article 131 of UAE Labour Law applies and this states: “In the event where the employer provides the worker with accommodation, the worker shall vacate the accommodation within thirty days from the date of termination of the employment thereof.” Termination of employment is the last day worked and usually when the visa is cancelled. IK therefore has longer than one week before he has to leave the accommodation of this previous employer.

In respect of the new employment, employment starts from when the visa application has been submitted, which should be by the first day a person starting working for a company, so the new employer is able to offer access to accommodation from the start of employment.

Is it possible to end a limited contract early? If so, what is the procedure I have to follow? GS, Dubai

It is possible for an employee to end a limited contract early but there will be penalties for doing. All employees, when leaving any job, must provide formal notice and in most cases, this will be 30 days, although employees should check the terms of their contracts of employment as some will show a longer period.

Per article 116 of UAE Labour Law, “should the contract be rescinded by the worker… the worker shall be bound to compensate the employer for the loss incurred thereto by reason of the rescission of the contract, provided that the amount of compensation does not exceed the wage of half a month for the period of three months, or for the remaining period of the contract, whichever is shorter, unless otherwise stipulated in the contract.” This equates to approximately 45 days of basic salary as the penalty for breaking the terms of the contract.

In addition, if a person has worked for a company for fewer than five years and resigns in this way, they will forfeit their entitlement to the end of service gratuity per Article 138 of Labour Law. This states: “Should the worker bound by an employment contract with determined term leave his work by his own choice prior to the expiry of the contract, he shall not be entitled to an end of service gratuity unless the duration of the service period exceeds five years.”

Keren Bobker is an independent financial adviser and senior partner with Holborn Assets in Dubai, with over 20 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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