Legal Forum 24 August 2014

The Filipino Times

Staff Report Published: August 24, 2014

Legal Forum: Terminated for refusing to do overtime work

 

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Photo Credit: Digital trends

 

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Atty. Barney

Atty. Michael Barney is a director at the Commercial Department of Gulf Law in the Middle East, Philippines and United Kingdom.
He is a licensed  legal consultant in the UAE and a lifetime member of the Philippine Bar. He holds Juris Doctor and MBA dual degrees with concentration on International Business and European Union Law (University of London). Readers can contact him at barney@gulflaw.info.

Maya Biju

Atty. Maya Biju is a legal consultant with Abdullah Hussain Advocates & Legal Consultants and can be reached at maya@ahadvocatesdubai.com.

 

 

QUESTION: My two colleagues and I were recently terminated for reasons beyond us. All we know is that the unfortunate incident occurred when we refused to do overtime work because we have no food.

The termination letter served to us reads “immediate termination.” Should we still report for work to comply with the 30-day notice requirement though it says immediate termination? It’s been 12 days now since the letter was served to us. Our office is not doing anything to send us back home immediately. What should we do, Attorney? We are really confused. Thanks and more power to you.

ANSWER: Refusing to render overtime work per se is not a proper ground to terminate an employee. We suggest the letter sender to bring the matter to the Ministry of Labor.

According to Article 120 of the Labor Code, the employer may dismiss an employee without notice in the following cases:

1. If the employee adopts a false identity or nationality or if he submits forged documents or certificates.

2. If the employee is appointed under a probationary period and dismissal occurred during or at the end of said period.

3. If he commits an error causing substantial material loss to the employer provided that the latter advises the labor department of the incident within 48 hours from having knowledge of the same.

4. If the employee violates instructions concerning safety of the place of business provided that such instructions are displayed in writing at conspicuous places and in case of an illiterate employee the latter be informed verbally of the same.

5. If he fails to perform his basic duties under the contract of employment and persists in violating them despite formal investigation with him in this respect and warning him of dismissal if the same is repeated.

6. If he divulges any secrets of the establishment where he is employed.

7. If he is awarded final judgment by the competent court in respect of an offence prejudicing honor, honesty or public morals.

8. If during working hours he is found drunk or under the influence of drug.

9. If in the course of his work he commits an assault on the employer, the manager or any of his colleagues.

10. If he absents himself without lawful excuse for more than twenty intermittent days or for more than seven successive day during one year.

AGREEMENTS AND CONTRACTS SHOULD BE CHECKED BEFORE ACQUIRING ANY BUSINESS

QUESTION: We purchased a beauty salon shop in Sharjah last January 14. The owner agreed to transfer the trade license under my name, including the tenancy contract.

The problem now is that the building owner does not wish to renew the shop rent if the business is sold to another person. So we agreed that the trade license still be renewed under the previous owner’s name.

They also agreed to give us more time to transfer to another building if necessary. The shop rent contract is due to expire this month, August. Kindly advice if we have no option but to transfer to another building. We’re also concerned that the seller might sell the shop to the friend of the building owner who will enjoy the old rent rate.

We find it hard to communicate with the building owner as he speaks only Arabic and communication is done only through his Bangladeshi friend who is also interested to buy the salon.

ANSWER: Lease agreements are private in nature. If there is a provision in the lease where the existing tenant can assign the lease to another, then the landlord must renew the contract as the new owner of the shop is considered to have stepped into the shoes of the previous owner.

If the lease is not assignable and the shop owner has sold the business, the landlord has the right not to renew the tenancy.

As the owner of the premises, he has the absolute discretion to select to whom he will have the same rented out. Before acquiring any existing business, it is advisable to perform a due diligence check first as to the agreements and other contractual obligations of the company to prevent surprises such as non-renewal of lease.

As the location of the shop is crucial to a parlor business, the letter sender may wish to reconsider if he still wants to enter into a tenancy contract with the landlord given the fact that they cannot agree already at this early stage.

For sure he would rather spend his time attending to clients rather than dealing with a very difficult landlord every now and then.

CLEAR POLICE CASES BEFORE APPLYING FOR EMPLOYMENT VISA

QUESTION: I am under my father’s sponsorship but he was terminated. He wants to cancel my residence visa for a new employer’s visa. But he found out at the immigration that I have a four pending bank cases.

I was terminated last June 2012 and has been jobless since then. One company wants to hire me but how can they transfer my visa with my bank cases. Please advice.

ANSWER: You will need to clear all the police cases fi led against you by your banks before you can process your new employment visa.

The best approach to clear your police cases for bounced check is to negotiate with your bank to accept a lower amount of payment or work on a settlement agreement/installment payment.

Once the bank has entered into a settlement agreement with you and you have paid the minimum amount acceptable to the bank, you will be able to secure from the respective lawyers of your banks a release form which you will need to bring to the police to clear your name in their system.

Once your name is cleared, you will be able to process your new visa. If you cannot meet the minimum payment required by the bank, your other option is to proceed with the criminal case, undergo trial and serve your judgment—payment of fine and/ or imprisonment.

Once you have served your sentence, the court will issue your clearance. Thereafter, you will be able to secure your new visa.

Note, however, that serving your criminal sentence for the bounced check is only a “quick fix” and will not release you from your obligation to pay your debts. The banks has the discretion to pursue a civil case for the collection of your unpaid monetary obligation. You may likewise be given a travel ban which will prevent you from leaving the country until you have

QUESTION: My daughter is under my sponsorship and I can’t cancel her visa because of certain bank problems. If there’s a company willing to give her visa, can her visa with me be cancelled?

Can I give her an NOC (Notice of Consent) even if she’s blacklisted? My visa was in JAFZA and my company been waiting for 5-6 months now.

Can the company brand me as absconding? Can I transfer my visa to other free zone or Dubai visa? If I go to jail, can the court cancel my visa and my daughter’s visa? Is there any other way to cancel my visa and my daughter’s visa?

ANSWER: It is not clear from your query who is blacklisted either you or your daughter. But assuming that you are blacklisted, if any new company is ready to give a visa to your daughter, the company can apply for the transfer of visa by obtaining No Objection from you.

Regarding your JFZA job, each free zone has its own rules and regulations; but keep in mind that the sponsor has the right to file an abscond complaint if the worker is absent from work for more than seven days continuously.

If you are involved in any litigation or any criminal charge it is not possible to cancel or transfer your visa to any other free zone or any other visa, until you are free from the charge or acquitted from the court.

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