'Can I complain about a company for not paying me if I am on a short-term visa?'

The Abu Dhabi resident's salary was withheld because of a lack of work due to the coronavirus pandemic

Abu Dhabi, United Arab Emirates, March 5, 2020.  
Al Reem Island on a sunny but hazy day shot from the Mangrove area.
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Victor Besa / The National
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I have been working for a company in Abu Dhabi on a short-term visa. The company did not pay my salary for April and said it did not have any work because of the coronavirus pandemic. My short-term visa is still valid, so am I eligible to complain to the Ministry of Human Resources and Emiratisation about the company not paying my salary? FU, Abu Dhabi

A short-term visit visa usually has a validity of 30 days. It is issued to allow people to enter the UAE for a limited period if they don’t have a passport that allows a visa to be issued on arrival. This is a visit visa only and a person in the UAE on this type of visa is not permitted to work.

A short-term visa is often used by people to enter the UAE before taking up employment. However, to work legally, an employer must put in an application for an employment visa at the time the individual starts working. As no new employment or residency visas have been issued since March 19, the employer will not have been able to arrange a suitable work visa for FU. This means he was not working legally as he did not have a valid employment visa.

The MoHRE provides support and advice to employees but can only assist those working with a suitable residency visa and work permit. In this case, FU will not be able to request assistance to register a case against a non-paying employer. If he had the right visa, and the employer must be aware that it is illegal to work otherwise, he would have grounds to make a complaint as companies are not permitted to suspend salary payments in this way.

I need guidance on Article 127 of UAE Labour Law. I worked for a company in the UAE for 15 years before resigning. According to the contract, I wasn't supposed to join a competitor within the country for a year, however, I have joined a competitor in Oman. Would I still be able to have a UAE visa from the competitor company as my family wants to stay in the country? My new employer is prepared to give me a UAE visa so that I can sponsor my family. I would still have a residence visa for Oman and I would work there. Would that breach the contract with my previous employer? DS, Oman

Article 127 of UAE Labour Law is the one that refers to non-compete agreements. It states: “Should the work entrusted to the worker enable him to meet the clients of the employer or know the business secrets thereof, the employer may require from the worker not to compete with him or participate in any competing project upon the termination of the contract. For the validity of such agreement … and the agreement shall be limited, with regards to time, place and type of work, to the extent necessary for the protection of the legal interests of the employer.”

Although it is unusual, it is possible to have residency visas for two different GCC countries. The employer will incur additional costs but it is permitted. The question is whether this counts as working for a competitor company in the UAE and that is a slightly grey area. What must be noted is that a company can take action against an individual if they believe them to be in breach of contract terms and can take the individual to court to prove they have been disadvantaged.

In such cases, the onus is on the employer to prove a case and there is a cost for doing this. If this clause refers to a period of one year, I have to assume this is not in the contract that was lodged with MoHRE, which is the official contact accepted in court. The expectation is that this clause has a time limitation of no more than six months.

These types of clauses generally apply to employees in senior positions, who are party to corporate information, and should not be a standard clause in all contracts. Any claim for longer than six months is unlikely to be upheld. Such clauses must be specific in relation to geographical scope and the actual role. The onus is also on the employer to prove to a court they will suffer an actual financial loss should the employee work for another company and it does not apply to employment in a different country, even within the GCC.

On the assumption that DS would not actually be undertaking any work in the UAE and that it is clear that the role is in Oman, it is unlikely that the former employer would win a case if they chose to take action.

Keren Bobker is an independent financial adviser and senior partner with Holborn Assets in Dubai, with more than 25 years’ experience. Contact her at keren@holbornassets.com. Follow her on Twitter at @FinancialUAE

The advice provided in our columns does not constitute legal advice and is provided for information only