Can termination be contested as an 'arbitrary dismissal'?
Question: My Dubai-based company has set very unrealistic targets for sales employees. I am afraid I will not be able to meet them. Can this be a reason for termination? Please advise if I can contest this as an 'arbitrary dismissal' if I prove that the targets were unrealistic.
Answer: Pursuant to your query, it is assumed that you are employed by a mainland company in Dubai. Therefore, the provisions of Federal Decree-Law No. 33 of 2021 on the Regulation of Employment Relations are applicable.
In the UAE, an employee needs to work diligently and improve his or her performance while employed by an employer.
This is in accordance with Article 16(8) of the Employment Law, which states,
“The employee shall work diligently and constantly to develop his professional and job skills and improve his performance to the employer.”
Under Article 44 (4) of the Employment Law,
"An employer may dismiss an employee without prior notice, after a written investigation with him, and dismissal decision shall be in writing and reasoned, and given by the employer, or his representative, to the employee: If the employee fails to perform his main duties in accordance with the employment contract, and fail to remedy such failure despite a written investigation with him on the matter and two warnings that he will be dismissed in case of recidivism."
Based on the aforementioned provisions, your employer may only terminate you on grounds of non-performance if it has issued two warnings in writing separately on different occasions and upon completion of a written investigation justifying your non-performance.
However, if you feel that the sales targets are unrealistic and your employer has terminated you on grounds of non-performance, then you may consider such termination of your employment as arbitrary.
This is under Article 47 of the Employment Law, which states,
“1. A dismissal of an employee by his employer shall be arbitrary if the employee submits a serious complaint to the Ministry or files an action proven to be valid against the employer.
“2. The employer shall pay the employee a fair compensation estimated by the competent court, if it is found that the dismissal is arbitrary pursuant to paragraph (1) above. The amount of compensation shall be determined based on the type of work, the extent of harm sustained by the employee and the length of his service. In any case, the amount of compensation shall not exceed three months of salary of the employee calculated based on the last salary received by him.
“3. The provisions of paragraph (2) above shall not prejudice the right of an employee to the pay in lieu of notice and severance pay due to him under the provisions hereof.”
Therefore, in such a case, you may file a complaint against the employer with the Ministry of Human Resources & Emiratisation.
Once you file a complaint, the Ministry will attempt to settle the dispute between you and your employer amicably. If there is no amicable settlement, the Ministry will issue a letter to you to file a case before the Dubai Court which has jurisdiction to determine your employment case.
While filing a case, it is recommended that you submit a relevant memo (petition) to the court along with documents (if any) substantiating your claims that the sales targets set by your employer are unrealistic.
Moreover, you may also claim with the court the unpaid salary, gratuity (if any), annual leave not availed by you and salary of up to three months as compensation for arbitrary termination. The onus lies on both parties to prove the claim or counterclaim made by each of you against the other.
News Source: Khaleej Times