Firms can be sued for discrimination
Q:
I would like to know how to deal with racism at the workplace. I understand that the UAE introduced an anti-discrimination law recently. Has it been implemented? Despite putting my heart and soul into my company in Dubai, I have been drawing the same salary under the same designation as I started out seven years ago. However, some other colleagues — who happen to be of the same nationality as my boss — had been promoted despite mediocre performances. I have documented proof of how I brought in more business to the company than these two others I mentioned. In some months, they did not even achieve their sales targets. How do I tackle this?
A:
It is understood that you have been employed by a company where you believe you are suffering discrimination. You have been employed for seven years in the same firm, but you are still drawing the same salary and hold the same designation as in the first year of your employment, despite working very hard. Although you have performed better than your colleagues, two of them have been promoted despite average performances, and, incidentally, such colleagues happen to share your boss’ nationality. It is further noted that you are in possession of documented proof to show that your performance was better than your colleagues’ at work.
It may be noted that the UAE does have an anti-discrimination law in place and it is called Federal Decree Law No. 2 of 2015 On Combating Discrimination and Hatred (called the ‘Anti-Discrimination Law’). It may further be noted that the Anti-Discrimination Law has been implemented.
In response to your second query, and in view of the circumstances at your workplace, it may be noted that the scope and applicability of the term ‘discrimination’ under the Anti-Discrimination Law has been kept very wide, and penalties are prescribed in the event of violations. The term ‘discrimination’ has been defined under Article (1) of the Anti-Discrimination Law, and it reads as follows: “Discrimination: Any distinction, restriction, exclusion or preference among individuals or groups based on the ground of religion, creed, doctrine, sect, caste, race, colour or ethnic origin.”
In view of the above, it may be noted that any act of discrimination, by any means of expression or otherwise, shall be an offence punishable with a minimum jail term of five years and with a fine that may range between Dh500,000 and Dh1 million.
This is in accordance with the Article 6 of the Anti-Discrimination Law, which reads as follows: “Any person, who commits any act of discrimination of any form by any means of expression or by any other means, shall be sentenced to imprisonment for a period not less than five years, and by a fine not less than Dh500,000 and not exceeding Dh1 million or either one of these two penalties.” Owing to the general nature of the provisions of Article 6, its applicability may be extended to acts of discrimination at workplaces as well. However, this applicability may vary based on how it is interpreted. This is further substantiated by the provisions of Article 17 and Article 18.
Article 17 puts the onus on the representatives, directors and agents of entities in the UAE to the effect that if any of the crimes described under the Anti-Discrimination Law occurs with such person’s knowledge, then the person shall be sentenced to the same penalties prescribed for the crime. Further, the concerned entity shall also be held jointly liable for the settlement of pecuniary penalties and/or the compensation. Article 17 reads as follows:
“The representative, director or agent of a legal entity, in case any of the crimes set forth in the present Decree Law is committed, with his knowledge, by any employee of said entity acting in its name or to its interest, shall be sentenced to the same penalties prescribed for the committed crime. The legal entity shall be held jointly liable to settle any pecuniary penalties or compensation as ruled thereof.”
Additionally, Article 18 lays down that the court shall also order temporary or permanent dissolution of the entity, upon occurrence of any act of discrimination, in addition to the confiscation of money, property, tools or papers, which may have been used for commission of discriminatory acts. Article 18 reads as follows:
“Without prejudice to the imposition of penalties set forth in the present Decree Law, the court shall order the dissolution of associations, centres, entities, organisations, leagues and groups and their branches or the closure of the same, either temporarily or permanently. Moreover, the court shall order the confiscation of money, property, tools or papers which may be used in the commission of any of the crimes set forth in the present Decree Law. The court shall order the expulsion of a foreigner from the country after the execution of the penalty charged thereof.”
End-of-service benefits must for domestic workers
Q:
I have had a Filipino housemaid for over five years. During her first year with us, her monthly salary was Dh1,500, which had been increased to Dh2,200. She has resigned because she wants to go back to her home country due to some family problems. This happens six months before she is due to complete her contract. She’s demanding that I pay her a gratuity of five years as per her present salary. In the labour contract we have signed, there is no mention of a gratuity. Are maids entitled to end-of-service benefits as per UAE laws? How is the amount calculated?
A:
It may be noted that employment matters pertaining to domestic workers are subject to the provisions of Federal Law No. (10) of 2017 On Domestic Workers (the ‘Domestic Worker Law’). Pursuant to the first query, it may be noted that ‘housemaids’ are listed as domestic workers under the annex of the Domestic Worker Law. Further, it may be noted that housemaids are entitled to receive end-of-service compensation after the completion of a minimum of one year of continuous service.
Pursuant to the second query, it may be noted that the compensation as such shall be calculable at a rate that is equal to the person’s 14-day wages for each year of service and shall be due at the time of termination of the employment contract. It may also be noted that the calculation of the period of employment and the corresponding end-of-service compensation shall resume upon the renewal of the employment contract, every time. Further, in respect of the last year of service, a housemaid shall be entitled to end-of-service compensation calculable at pro rata rates for the period of service.
The above assertions are made in accordance with the provisions of Article (26) of the Domestic Worker Law, which reads as follows:
“1. The worker, who completes one year or more of continuous service, shall, at the end of his/
her service be entitled to an end-of-service compensation. Unpaid days of absence from work shall enter into the calculation of the end-of-service compensation. The compensation shall be calculated on the basis of 14-day wages for each year of service and becomes due upon the termination of the contract. The calculation of the compensation resumes upon the renewal of the contract.
2. The worker shall be entitled to a compensation for the portion of time worked during the last year of employment on a pro rata basis provided the worker has completed no less than one full year of continuous employment.”
Nonetheless, it may also be noted that a domestic worker shall not be entitled to end-of-service compensation if the employment contract is terminated by the worker unlawfully. This is in accordance with the provision of the Article (27) of the Domestic Worker Law, which reads as follows:
“The worker shall be denied end-of-service compensation if the contract is terminated due to unlawful discontinuance of work or if the worker acts to terminate the contract without due cause.” In consideration of your case, you may also contact the Ministry of Human Resources and Emiratisation for further clarification.
Ashish Mehta is the founder and Managing Partner of Ashish Mehta & Associates. He is qualified to practise law in Dubai, the United Kingdom, Singapore and India. Full details of his firm on: www.amalawyers.com. Readers may e-mail their questions to: news@khaleejtimes.com or send them to Legal View, Khaleej Times, PO Box 11243, Dubai.