By Osman Aboubakr and Tamer Nassar
A follow-up to our 31 March 2020 piece entitled Measures by the Ministry of Human Resources and Emiratization to help the UAE private sector survive COVID-19.
In this piece we will focus on Article 3 of the Ministry of Human Resources and Emiratization’s (MOHRE) Resolution No. 279 of 2020 (Article 3). Below is an excerpt from the Resolution and the official translation thereof.
The question on many people’s minds is - how does Article 3 affect termination of non-citizen employees during the period of application of the Resolution, which is expressly stated to be the period of application of precautionary measures (Precautionary Measures) to contain the spread of the novel coronavirus (COVID-19), i.e. government quarantines, lockdowns, shutdowns, work-from-home measures and travel restrictions.
We await further guidance and clarification from MOHRE on this, which is sorely needed; in the meantime, this is how your General Counsel would interpret all this:
In our view, the short answer is: it does not.
Here is the longer answer:
· Note that the Resolution only relates to non-citizen employees.
· Article 3 is likely not meant to change the law on termination - if it meant to do that, the drafting would have probably been more explicit.
· If an employer has determined that it must terminate an employee, or an employer and employee have reached an agreement regarding termination, then as long as the termination was done in accordance with the UAE Labor Law and the terms of the employment contract, the authorities will likely not step in.
· Article 3 attempts to create an environment in which an employer and employee that wish to try to continue the employment relationship during these unprecedented times, could do so.
· We read Article 3 to state that if an employer is negatively impacted by the Precautionary Measures, and has an employee which is surplus to its now diminished needs, instead of terminating him/her, it could enroll the employee in the Virtual Labor Market (https://mohre.hyrdd.com/) and only provide the employee’s housing, work permit and entitlements (other than salary) until the earlier of: (a) the employee leaves the United Arab Emirates or (b) the employee is permitted to work for another.
· Practically, however, what remains to be seen is how will MOHRE react if the Precautionary Measures continue or get stricter and flights to employee home countries continue to be cancelled? What will happen once an employer approaches MOHRE to cancel the work permits of validly terminated employees that cannot leave the UAE? Will MOHRE resist the cancellation and require the employer to put the employees on the Virtual Labor Market, keep the work permits in place and provide housing and other entitlements?
We appreciate that this is a very high level treatment of Article 3 and you probably have a lot of questions. If you have questions:
· We have found the MOHRE team to be responsive and is answering questions on this Resolution.
· We are available at contact@argentumlaw.com.
Stay safe, wash your hands A LOT and remember to treat each other nicely – we are all in this together.
