News & Insights
Ever since its inception in 1971, the UAE employment has been the gateway portal for foreign residency in the country. Hence, employees are facilitated with a wide range of legal rights to protect them from any differential treatment, from their respective employers, especially in the case of blue-collar employees, the UAE, as a federation, partook intensive measures to safeguard the best interests of the employee. Employment rules are regulated through the promulgation of several laws, significantly the Federal Law No. 8 of 1980 also known as the UAE Labour Law, Law no. 8 of 2018 Concerning Management of the Government of Dubai Human Resources of the Emirate of Dubai and lately the Ministerial Resolutions no. 279 and 281 of the UAE Federal Cabinet.
Unfortunately, due to lack of knowledge and understandings of these salient legal statutes, quite often employee rights are undermined. In this regard, we present our latest finding of a correlation between the ‘UAE Law of Evidence’ and the Employment rights of the employee.
FEDERAL LAW ON EVIDENCE IN THE UAE
UAE Civil Code is promulgated through the Federal Law No. (10) of 1992 alongside, Federal Law No. (5) of 1985 on the Civil Transactions and is deeply rooted on Evidence in Civil and Commercial Transactions. The laws were further amended through other Legal provisions of Federal Law No. (36) of 2006 in October 2006 and via Federal Law No. (1) of 1987. This law is certainly the backbone of the legal framework concerning the UAE economy as it governs all transactions of any order in the realms of Civil and Commercial laws. It might astound a few, that this law can be equally effective in employment cases, as it encompasses the legal realms of the subsequent contractual obligations, where employment contracts regulate the relationship between an employer and their employees. We will now analyse the law and then bring it into perspective with employment matters. The application of Law no. 10 of 1992 implies more significant benefits to the employees of a firm, entity or even a person as a sponsor.
LEGAL BEARING OF THE LAW
A quick review of the legal bearings of this law includes Article 1, which stipulates the legal rights of both the plaintiff and the defendant, giving employees an equal right to oppose any misconduct on behalf of the employer. Article 5 promulgates the authority of the courts to refer to an earlier judgement, making this clause unique in terms of the Doctrine of Stare Decisis in Legal nomenclature. Article 6 further clarifies the ideology of Principal legal jurist’s of yesteryears, Al-Imam Malik Bin Anas of Medina and Al-Imam Ahmad Bin Hanbal of Baghdad, which gives us the precedent of following these two jurists in the absence of a confined legal text giving credence to this law, allowing any relevant dogmas to be inculcated, if a legal paradigm is absent in the above matters of precedence. Furthermore, there are other segments, which have been described below:
Disclosure/discovery refers to the rights of opposing parties to obtain information from each other before trial. Hitherto, under the purview of the UAE Civil Code proceedings, disclosure/ discovery are yet to find a mechanism. While discovery plays an essential part in trials in the common law system and is most evident in the law practices of the USA and English Common Law jurisdictions, it is not recognized in the UAE. Under the Law of Evidence, however, either party may ask permission from the judge to see or to receive a copy of any document submitted by the other party or mentioned as relevant in supporting their case. The judge may then order the second party to make the document available, provided that:
there is sufficient evidence to show the judge that the document is in the possession of the other party and that they can produce or exhibit the same;
the other party has relied on that document in the court proceedings or referred to it in their pleadings but has not shown the same to the court.
If the second party is ordered to produce the document, they must furnish the same unless they can convince the judge, to a reasonable extent, that such documents are not in their possession or that there is a practical difficulty for them to access the document in question.
THE LAW OF EVIDENCE
The law governing what is and is not admissible in the UAE courts is Federal Law No 10 of 1992 on corroborative proof/evidence in Civil and Commercial Transactions (the “Law of Evidence”). Under Article 13 of the Law of Evidence, xeroxed copies of documents are generally accepted at the court, irrespective of the fact the documents originated inside the Country or abroad. Either party to this action may, however, challenge any document filed at the court, in which case the original must be produced, in the absence of which, the document in question may be set aside by the judge and not be taken into consideration. The court will always accept official (government) documentations as evidence, and such documentation will not be challenged.
As the UAE is a civil law jurisdiction, time-consuming trials involving the testimony of subsequent witnesses does not alter the length of the proceedings. The entire framework of submissions, including but not limited to ao arguments, filing of complaints, comments are submitted through written communications. However, upon the request or either party (if the value of the claim exceeds AED 5,000) witnesses may be called. The request must be made by the party concerned as the judge will not call a witness of his own accord. If the court accepts the petition to call in witnesses, the proceedings will be adjourned, awarding the plaintiff or the defendant, the appropriate time to summon their witnesses upon the prerogative of the court. If the court so decides it will also give the other party the right to call counter-witnesses before the court. Thus, based upon circumstances, the courts would summon to both the defendant and the plaintiff to call in their witnesses. The hearing can be multiplied if the witnesses are unavailable. Although during the COVID-19 crisis, Dubai Courts were conducting trials through electronic mediums, hence even the witnesses residing abroad were summoned to join in the proceedings online. In the event of non-Arabic speaking witnesses, the court provides an interpreter to carry out the interpretation at the court hearing.
The court holds the prerogative of appointing an expert either through its findings or through the request obtained from either the defendant or the claimant. Courts often refer cases involving employment, personal status, financial services, construction, maritime issues or insurance to experts, mainly if the arguments raised by the parties are of a pro-tech nature. Hence the Law of Evidence sheds enormous light to the prospects of employment and contractual obligations.
THE MATTER OF THE SIMULATED CONTRACTS
In the legal proceedings of civil law, a simulated contract is defined which by mutual agreement, does not express the real intent of the parties. A simulated contract is affirmed when the contracting parties intend that the contract does not incur any further obligations to either party. This colossal definition of the nature of an employment contract is often ignored in legal analysis and usually by the employees by themselves. Nonetheless, Article 394 of Law no. 5 of 1985, brings more considerable attention to this clause. Article 394 stipulates:
“1. If a simulated contract has culminated, creditors of the contracting parties and particular successors in title may, if they are in good faith, avail themselves of the concealed contract and establish, through any means, the simulation of the contract by which they were prejudiced.
2. In the event of a ‘conflict of interest’ between the contracting parties, some of whom rely upon the apparent contract and others on the concealed contract, the former shall hold credence.”
The analogy construed brings us to the concept of stimulated contracts in employment. It so happens that many times, a company or a corporation makes employees sign contracts internally, which do not hold any inkling to the legislation in the country. Hence, the employee is put in a make-belief position that this particular contract is a law-abiding document. Such practices should be immediately reported to the authorities. The document will be termed as a ‘simulated contract’ and shall be considered invalid.
According to our legal expert’s team at the BBA, during the brainstorming of a recent employment dispute, which was based upon an internal contract, which did not facilitate the employee of a ‘Temporary employment status’ for a decade, abstaining him from any form of perks stipulated in the Law no. 8 of 2018, the Human resources law. The experts unanimously came to this conclusion that this clause will enable him to win his legal rights and hence the client was given some hope of legal rights, and eventually, the doctrine of precedence prevailed in this matter.
A piece of advice in general is to evaluate your rights in the spatial perspectives of the UAE Laws. Please consult a valuable attorney at law, before any form of dispute resolution within the scope of your employment. Your legal rights can only be protected if you acknowledge the correct methods to seek them. Knowledge of these laws and their practical implementation should be undertaken by all employees who commence employment within the UAE.
This article, and any other BBA’s publication, is for general information only and in no case can be considered as legal advice on any specific situation, fact or dispute. This article may not be quoted or mentioned in any other document without BBA’s previous written consent. The mailing and receiving of this article are for informational purposes only and do not create an attorney-client relationship between sender and receiver. The content reflects the personal view of the authors and does not reflect necessarily those of BBA.