What is the legal procedure to terminate the services of an employee on grounds of poor performance? We have an employee in our Dubai-based (mainland) company, who has not been meeting his targets despite repeated warnings. Please take us through the procedure in terms of visa cancellation, end-of-service benefits, etc.
Pursuant to your queries, it is assumed that you have issued warning notices to your employee in writing. Therefore, the provisions of Federal Decree Law No. 33 of 2021 on the Regulation of Employment Relations (the ‘Employment Law’) and the Cabinet Resolution No.1 of 2022 on the Implementation of Federal Decree Law No. 33 of 2021 Regarding the Regulation of Employment Relations (the ‘Cabinet Resolution No 1 of 2022’) are applicable.
In the UAE, an employee’s obligation is to work diligently. 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.” Therefore, if an employee is not performing his work in accordance with the employment contract, an employer may impose disciplinary actions.
This is in accordance with Article 39 (1) (a), (b) & (g) of the Employment Law, which states: “The employer, or his representative, may impose any of the following sanctions on any employee who violates the provisions of this Decree-Law and its Executive Regulations and implementing resolutions:
a. Written attention draw.
b. Written notice (warning).
g. Dismissal with payment of severance pay.”
Further, an employer may dismiss an employee without service of the stipulated notice period on grounds of poor performance once the employee is served with two written warnings upon conclusion of an investigation. This is in accordance with Article 44 (4) of the Employment Law, which states, “An employer may dismiss the employee without prior notice, after a written investigation with him, and dismissal decision shall be in writing an 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 warning that he will be dismissed in case of recidivism.”
Further, an employer may not accuse an employee of violation of employment obligations or on grounds of discipline if the same has been detected after 30 days of commission of such disciplinary violations. An employer may also not impose any disciplinary action on an employee after completion of 60 days of disciplinary investigation. This is in accordance with Article 24 (4) of the Cabinet Resolution No. 1 of 2022.
After following the above procedure, an employer may have to pay the employee the pending salary, leave salary entitlements, gratuity and provide with an air ticket prior to cancellation of the work permit with the MOHRE. Once, the MOHRE cancels the work permit as per the procedures mentioned in Article 7(3) of the Cabinet Resolution No. 1 of 2022, an employer may approach the General Directorate of Residency and Foreigners Affairs – Dubai to cancel the residency visa of such employee.
However, if an employer does not follow the aforementioned provisions of law to terminate employment, the employee may file a complaint against the employer with the Ministry of Human Resources and Emiratisation (the ‘MOHRE’) and the termination may be considered as arbitrary in accordance with Article 47 of the Employment Law.
Ashish Mehta is the founder and Managing Partner of Ashish Mehta & Associates. He is qualified to practise law in Dubai, the United Kingdom and India.
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