Legal Consultant Muhammad Mohsin Naseer is quoted in Gulf News on employment law in relation to absconding (September 2023)

Dubai: If you find out that you had been reported as ‘absconding’, what are the steps you can take to clear your records? A Gulf News reader wrote in after he found out that his employer had filed a case against him with the authorities.

He said: “My company fired me in November last year and sent me a termination letter. I gave ban everything that belonged to the company but since then, I have been following up with the company for the cancellation of my visa but they kept postponing it. When I contacted them recently, I found out that I have been labelled an ‘absconder’. Please advise.”

According to the General Directorate of Residency and Foreigners Affairs – Dubai (GDRFAD), an establishment faces a fine of Dh5,000 if they file a false absconding case against an employee.

Gulf News also raised the reader’s query with Muhammad Mohsin Naseer, legal consultant at UAE-based law firm Horizons & Co., who said that in such circumstances it is advisable for an employee to file a complaint against the employer with the Ministry of Human Resources and Emiratisation (MOHRE), asking for their contractual and legal rights, including their end-of-service benefits.

“The employee may request the Ministry to refer the matter to the Labour court in order to seek reliefs, as available under the applicable laws, including but not limited to payment of his pending salary(ies), if any, gratuity and a declaration that the employer reported him as a false absconder to deprive him of his rights and entitlements. This is a complex matter that, if not judiciously handled, may cause unnecessary inconvenience to the employee in the form of detention or deportation of the employee without end-of-service rights. It would, therefore, be prudent for the employee to seek legal assistance from a lawyer so that he may be properly represented before the relevant authorities and courts. It would be important for a lawyer to consider further information such as the type/legal status of the employer/company, type of the employment contract, reasons of termination, any allegations on the employee, notice period etc.”

"The employee may request the Ministry to refer the matter to the Labour court in order to seek reliefs, as available under the applicable laws, including but not limited to payment of his pending salary(ies), if any, gratuity and a declaration that the employer reported him as a false absconder to deprive him of his rights and entitlements."

- Muhammad Mohsin Naseer, legal consultant at UAE-based law firm Horizons & Co.

What is an absconding case?

Absconding essentially refers to situations where employees don't turn up for work for seven or more consecutive days, or more than twenty non-consecutive days (in one year) without informing the employer. This is as per Article (1) of the Ministerial Decision No. 721/2006 ‘On the Procedures of Escape Notifications’, which also states that the escape notification shall be applied to the case of a worker who does not attend work for more than seven consecutive days if the employer undertakes that he does not know his whereabouts and there is no legitimate reason for his absence in accordance with the provisions of this Decision.

How to approach MOHRE with a labour complaint

If a UAE employee wishes to raise a complaint with MOHRE, he or she can approach Twa-fouq centres. Twa-fouq service centres are licensed by MOHRE and function under its management and direct supervision. The centres primarily aim at reaching an amicable settlement between employers and employees when a labour complaint is filed by either of the two parties. To find out more details on how Twa-fouq centres manage labour complaints, read our detailed guide here.

"The employee would be required to support his or her position by submitting all the relevant information and documents such as his passport, Emirates ID card, employment contract, notice of termination, office property handover sheet, company/employer’s details including trade/commercial licence, any other correspondences particularly wherein the employee may have requested the employer for cancellation of his visa along with fulfilment of other related matters by the employer. In the present scenario, it would be a better option if the employee submits such application through a lawyer in order to ensure protection of all of his rights from the initial stage," Naseer said.

The process may take a couple of weeks with the Ministry. The time taken by the courts depends on the case, especially if any counter claims are filed by the employer.

The process is free of cost. However, if the claim amount exceeds Dh100,000, a court fee of five per cent of the claim amount would be applicable.

What is an absconding case?

Condition to filing an absconding complain before the Public Prosecution:

The competent Public Prosecution officer must ascertain his responsibility and ensure, when examining the request to register the absconding report or when examining its cancellation, that the conditions for the absconding report are generally met and that it is not permissible in particular to enter the absconding report in the following cases:

1. If the employee to be reported has a complaint or a labor lawsuit under consideration Before the competent ministry or court.
2. If the employee is on sick leave, maternity leave, periodic leave, or absent for some other legitimate reason and seven consecutive days have not passed since the date of the leave or lawful absence.
3. If the facility knows the worker's whereabouts and the concerned employee believes that he can be summoned and attended to the Ministry without control.
4. If the employee has not been absent from work for seven consecutive days or if the conditions mentioned in Article 1 of this decision are not fulfilled.
5. If the employee relationship ends for any reason, and a period of three months or more has not passed since its termination, whether or not the worker has a complaint or a labor lawsuit pending before the competent ministry or court or not.
6. If the interruption occurred as a result of force majeure or urgent necessity, the worker was not able to inform the employer, whether this was immediately after the end of the leave or while the worker was at work.
7. If the communication is fictitious according to the text of Article 12 of this decision.
8. If the report was malicious in accordance with the provisions of Article 12 of this decision.
9. In any other case, if the competent employee is not convinced of the justifications for the request, and in this case he must refer the matter to the director of the department or office and issue a written order.

You can read the article reference here on Gulf News.