‘How can I get my ex-employer to pay my gratuity?’

The Dubai resident has not been paid her end-of-service dues for several months and the company is ignoring her emails and calls

It is not uncommon for an employer to issue post-dated cheques to settle the gratuity payment of an employee if the company does not have the money to settle the dues immediately. Silvia Razgova / The National
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I left my job a few months ago but my employer still hasn’t paid me my gratuity in full. I signed an agreement accepting the gratuity payment spread across three months, but my employer hasn’t paid and is not answering my e-mails or telephone calls.

I am about to file a complaint with the Ministry of Human Resources and Emiratisation but I am concerned that my employer will ignore it. I am worried that even if I win the case, the company might not pay me what I am owed. If that happens, is there anything I can do to make my employer pay? It is quite a lot of money after six years of work. CS, Dubai

Any employee who believes that they have not been treated fairly can file a case with the Ministry of Human Resources and Emiratisation (MoHRE) and there is no cost involved. The ministry is supportive of employees and where it is clear, for instance in a case like this, that an employer has failed to make payment as agreed, I would expect them to rule in CS’s favour. Unfortunately, there are some employers who fail to pay what is owed, even after the deadline the MoHRE sets. If that is the case, the employee can take further action.

According to Danielle O’Brien, an associate at Horizon Law, it is not uncommon for an employer to issue post-dated cheques in this situation. “Should the company not comply or any of the post-dated cheques bounce, you will then be able to file a case before the Court of First Instance. This can be done by submitting an application to the MoHRE, and your matter will be transferred to the court, so you will not be required to bear any further charges. Alternatively, should the company ignore the MoHRE’s invitation twice, the matter will be transferred to the Court of First Instance automatically,” Ms O’Brien said.

She added: “The Court of First Instance will then instruct you to formally summon your company, who will be afforded an opportunity to plead their case. Should they not appear before the court, it will likely issue a judgment in absentia and you will be ultimately able to commence execution proceedings such as attaching the company’s trade licence, bank accounts and other assets. The company will also be entitled to plead their case and the court may reverse the MoHRE’s decision.

“Please note that all court proceedings will be in Arabic and any documents submitted will need to be translated and you have to bear all associated costs.”

The process may sound intimidating but the system is there to support employees who are being treated unfairly. It is not as complex as it might sound, although it can take some time.

I strongly recommend that no one signs visa cancellation papers without having being paid, or at least have been given a post-dated cheque

I have resigned from my current job. My usual payday is the 28th of every month, but I haven’t received last month’s payment, along with many other employees in the company. Salaries have previously been delayed. My last working day is next week. Not only has my salary been delayed but the employer is also insisting that they will not release my salary or gratuity before I sign the visa cancellation form.

Unfortunately, the company has a bad track record of doing unethical things to employees, so I do not want to take a risk by signing the document before I receive what's owed to me. Am I legally allowed to leave employment next week without receiving my payment? ST, Abu Dhabi

The visa cancellation form that employees sign when ending service with a company, so that the visa and employment permit can be cancelled, is usually signed on the last day of work. At that time, the employer should pay all monies that are owed, including salary, any unpaid leave and end-of-service gratuity. This document states that all monies owed have been paid to the employee. Therefore, no-one should sign this document if they have not actually been paid because doing so weakens any case against the employer.

In situations where a company cannot pay the gratuity at the time of visa cancellation, there needs to be a written agreement signed by both parties that is legally binding on the employer.

I strongly recommend that no one signs visa cancellation papers without having being paid, or at least have been given a post-dated cheque if the employer does not have the money to settle the dues immediately. If the company refuses to pay or provide a post-dated cheque, ST should raise a complaint with the MoHRE to protect her interests.

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