'Can my employer refuse to give back my passport?'

The Dubai employee from Pakistan wants to return home to see his sick mother

The Dubai resident's employer says the passport cannot be returned as his visa is in process. Photo: AFP

I came from Pakistan to join a company in Jebel Ali Free Zone. I started at the end of January but I now want to return home as my mother is very ill and I don't know how long she will live. My employer will not give me back my passport and says my visa is under process and that I cannot leave as I don't have an Emirates identity card. What can I do as it has been two weeks now? MI, Dubai

It is normal to hand over a passport to an employer for a visa application but it must be given back promptly. In a free zone, the sponsor is the free zone itself, rather than an actual employer but the process should still not be lengthy. There are a few issues to consider here.

If a passport is returned to an individual and they exit the country, the residency visa process must be halted and cancelled. It is the visa status that is relevant, not whether a person has an identity card. A person cannot leave while the visa process is in progress. If an employer has incurred costs, they will not be refunded.

Secondly, it is illegal to undertake employment without a residency visa and both the employee and employer can be fined. A visa should only take a few weeks and this one seems a little on the slow side so MI should check if it is actually being dealt with.

Thirdly, the status of the visa application is relevant as if it has already been issued and as MI is on a limited-term contract and wishes to leave permanently, he could be penalised for breaking it. This is at the discretion of the employer and it would seem unfair to inflict a hefty penalty at this time. If MI wishes to take unpaid leave, that is wholly at the discretion of the employer who does not have to allow any leave so early into service.

If any employee wishes to leave employment, for whatever reason, no employer should prevent them from doing so, and it would be cruel to try and prevent someone leaving for compassionate reasons. As MI has only been with this employer for a short period, and is no doubt in a probationary period, the kindest thing would be to cancel the visa process and allow immediate departure. MI will need to pay for his own flight to Pakistan but must not be asked to repay the visa costs as this is not permitted under UAE law.

At the time of writing, MI needs to be aware that travel restrictions are in place in many countries, as a result of Covid-19, and this limits all international travel. Even if he is able to leave the UAE, he may not be able to return for some time.

If the employer refuse to be amenable, a complaint can be raised with the Jebel Ali Free Zone Authority, where  there is a formal dispute resolution service which is available to employees.

I have been living in the UAE for almost seven years and was recently laid off by my company because of internal restructuring. This was written into my termination letter. I have since found out that my previous employer has hired a new employee with the exact same position and job description. Can I file for legal action against my previous company?  RV, Abu Dhabi

There are various reasons why an employee can find their role terminated that are acceptable in UAE law. These include termination for poor or unsatisfactory performance, the role no longer being required, misconduct and breaking certain laws. What an employer is not permitted to do is simply terminate someone without reason and then hire someone else for the same role.

If this is the case, and the employer has advertised the identical role, and there is proof to this effect, then RV may have a claim against the company. If upheld, a compensation payment could be due in accordance with Article 123 of the law: “Should the worker be arbitrarily dismissed, the competent court may order the employer to pay a compensation to the worker. The court shall assess such compensation, taking into account the type of work and the extent of damage incurred to the worker as well as the duration of employment and after the investigation of the work conditions. In all cases, the amount of compensation shall not exceed the wage of the worker for a period of three months calculated on the basis of the last due wage.”

RV needs to register a case against the previous employer with the Ministry of Human Resources and Emiratisation. He can contact the government body on the free helpline number 800 60 or visit one of the many labour offices across the UAE. In the current circumstances, however, RV should double check the opening hours.

Keren Bobker is an independent financial adviser and senior partner with Holborn Assets in Dubai, with more than 25 years’ experience. Contact her at [e-mail]. Follow her on Twitter at @FinancialUAE

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