legal clinic

PRO BONO LEGAL ADVICE

Traffic/license problem

Recently I was fined by the Kuwait Traffic Department for driving on a one-way street.

I told the police officer that it was the first time for me to be in Fahaheel, so I didn’t know my way, and that I didn’t even enter the one-way road at the start and had only been about to join it somewhere in the middle.

I was just standing next to this road, still trying to figure out the direction I should take or was supposed to take when the police officer came and asked for my car registration and license.

He took my license and told me to report to Ahmadi Police Department after 3 days and handed me a yellow paper. Now my question is: Is this a big violation and what is the fine for this act.

Do the police have the right to fine me before I commit the mistake.

More importantly, I just got my driving license only a month ago and I have heard people say that there is a probation period for a new license within which if you are involved in an accident, your license is cancelled by the Kuwait Traffic Department.

Is this true? Should I be worried. Also I was only fined and not involved in any accident.

Name withheld

Answer: Driving against the traffic on a one-way street is a very serious violation which carries a fine of KD 250 or a 1-3 month imprisonment or both depending on the situation when the violation was committed and the police officer’s report.

So, it all depends on the police officer’s report. But as you said you were not driving against the traffic and had not even entered the street. So, if this is true you can’t be fined or penalized if you can prove that you did not commit any violation.

This can be done in two ways. Firstly, by challenging the police report at the Traffic Department.The officials there will send the case for investigation to their Investigation Department and then give a decision based on this department’s recommendation.

Now, if you again don’t agree to the new decision, the case will go to the Traffic Court where you might need a lawyer to defend you.

Please remember that if you get any type of jail term you will automatically be deported on completion of this term. Over the last six months, a large number of expatriates have been deported for serious violations so it is up to you to convince the Traffic Department you have not committed any violations.

Indemnity

I joined a company on June 2, 2013 and worked for 6 months until I was terminated on Nov 28, 2013 without being served with a notice period of 3 months.

The company, however, decided to pay me for the notice period. They have already paid me the salary for the month of December and January but they are currently holding on to the March salary as they require me to transfer my residence before they make the payment.

Could you advice/calculate what the final settlement will look like. Just for your information other than the gross salary I was also entitled to round trip tickets for myself and family (5 tickets). I am not sure if this also has anything to do with the final indemnity.

Name withheld

Answer: First of all, please remember that the three-month notice period must be counted in the service regardless of the fact that the company has exempted you from serving out this period and is paying you for these three months.

In this connection, please refer to Article 44d of the Kuwait Labor Law which states that “the employer may exempt the employee from work during the period of notification but shall count such period within the worker’s period of service. The employer shall pay the worker all his entitlements and remuneration for the period of notification.”

So, one thing they are doing already and now they must pay you indemnity and other dues for the 9month service (6 months on the job plus the 3-month notification period).

Firstly, this means you must get paid for your annual leave entitlement which is 9/12 x 30 days = 22.5 days leave. These 22.5 days must be divided by 26 and multiplied by your monthly remuneration to arrive at the correct leave payment.

Secondly, you must get your indemnity for the 9-month service. Every allowance must be added to your basic salary, including payment for the air tickets, to arrive at the right figure to be used in the calculation of your indemnity.

As you have not mentioned whether this entitlement of air tickets is every year or every two years we will give you the calculation for both situations.

If this entitlement is for every year, then the value of these tickets must be divided by 12 (months of the year) and added to your monthly salary. If it is for every two years then the division must be by 24 and added to your salary.

Bank loan

I am an Indian, working for a private retail company for the past 3 years but now I have got an offer from a Qatar company. I want to take up that offer since it is better.

But I am facing a problem because I have a loan of KD 6,000/- from a local Kuwait bank. My question here is whether it possible for me to continue to pay my monthly instalments from Qatar? Will the bank allow me to do that?

Name withheld

Answer: We answered a very similar question a few weeks ago but as you must not have seen the answer, we will repeat it for your benefit and that of all those readers who face a similar situation.

The answer to your problem lies with the bank which gave you the loan and your firm which must have stood guarantor – although it could also be some individual — for the same and the state or the law is not involved in the issue unless the bank asks it to intervene.

You must talk about your problem with your bank, although it is unlikely to agree but it could ask your guarantor to keep paying your instalments if you can’t. If the bank allows this to happen, you could keep paying the money to the person who stood guarantor for you.

So, in the end, the only place which can solve your problem is your bank. It all depends on the bank policy. You must remember that the bank you have mentioned has branches in the country where you are planning to move. Maybe… just maybe, it might agree to switch the loan to one of those branches. So, please contact the bank.

Indemnity

I resigned from my job on Oct 1, 2013 but continued working for the company until they found a replacement and trained him for my job. My last working day was Feb 13, 2014.

But now the company is saying that because I took 29 days annual leave in 2013 they will deduct 6.5 days as I was eligible for leave only till the day before I resigned. That means for the year of 2013, I should get only 22.5 days leave — even though I worked the full year — and not 30 days as labour law states. Is this correct?

Also in addition to my monthly salary, the company used to give me allowance for children’s school fees, fixed medical allowance for family of KD 600 per annum, residence charges for my children, and yearly bonus of one month salary which I used to get once a year since 2003. All these allowances used to be paid with the salary to my bank account. Now the company wants to calculate my indemnity based only on my monthly take home without the allowances and argue that it is all they need to do as per labor law. I have completed exactly 12 years of service.

Please can you tell me what is the correct indemnity that I should receive.

Name withheld

Answer: Your company is wrong on all issues and we will deal with them one by one.

Firstly, on the issue of annual leave, this is calculated until the last in service because your service is until the end of the notification period, even if the company exempts you from serving out this period.

In this connection, please refer to Article 44d of the Kuwait Labor Law which states that “the employer may exempt the employee from work during the period of notification but shall count such period within the worker’s period of service. The employer shall pay the worker all his entitlements and remuneration for the period of notification.”

So, in this case you should get over 30 days annual leave because such leave is once a year and not after one year – this means 11 months of work and 30 days of leave to complete the year. It doesn’t mean you have to work 12 months before you are entitled to the 30-day leave.

So, the company can’t deduct from your leave and as such from your indemnity over this issue.

On the issue of indemnity, the calculation for this purpose should be calculated on a person’s “remuneration” and not on the basic salary according to the Kuwait Labor Law.

And if you look at the meaning of “remuneration” according to the Kuwait Labor Law, it will be seen that it includes the basic salary plus all the allowances you receive at regular levels, and also the bonus.

And to include the yearly bonus in the remuneration, it must be divided by 12 and the result must be added to monthly salary.

So, the company must base the calculation of your indemnity on your total “remuneration”, which must include all your allowances and also your bonus as we have mentioned above.

The Arab Times invites questions on all aspects of Kuwaiti law. If you face a problem, or need specific advice on any legal matter, from commercial and investment law to divorce and labour, send questions to the Managing Editor, Arab Times, P.O. Box 2270, 13023 Safat, Kuwait, or Fax to 24818267. Email: arabtimes@arabtimesonline.com