Legal Clinic

I have been working in Kuwait for more than 25 years. I joined a company on 01 May 2014 after being terminated from the previous company. After completing 1 year of service, I went on vacation from July 4, 2015 to Aug 13, 2015.

On Aug 20, 2015, the manager told me that my services were no more required and I was talked into submitting my resignation.

Immediately after receiving the resignation letter, my laptop was withdrawn and I was instructed not to attend office any more.

I was also told that any applicable dues will be gradually deposited in my bank account. Our office does not have card punching or any other form of recording attendance.

I, however, received 15 days salary in my account on Sept 6, 2015. I want to know if I am entitled to 15 days salary for the completed year and 3 months salary as per the labor law as end of service benefit. Meanwhile, the company is insisting that I must change my Iqama (residence) as early as possible

Name withheld

Answer: First of all you made a mistake in tendering your resignation because if the company no longer required you then it should have terminated your services. Just because you resigned, you are no more entitled to the 15 days end of service pay that you should be getting – if your services are terminated by the company – after one year of service.

Secondly, the company can’t just tell you to “get lost” because you are supposed to give a three-notice, even if you resign. And if the company wants you to leave immediately then it has no option to give you three months pay.

This is not an end of service benefit. It is the salary for the three months notice period that you are supposed to serve, regardless of whether the company wants you or not. And if it doesn’t, then it should pay the employee for the whole notice period or the part it doesn’t want the employee to serve.

On the question of changing your residence, the company has asked you to do this “as soon as possible” and not immediately.

Normally, this means at least a month or two. So check with the company because you have probably still to find a new sponsor.

My HR has sent me the following: From the below taken, paid leave, you had received 17 working days in August 2015 before you left, so, the remaining days to complete your monthly salary of August 2015 is only 9 days. Thus, you have received all your August 2015 salary like the other employees. Leave: from 12/07/15 to 19/08/15

Note: I rejoined on Aug 20, 2015 Earlier the following was my note: “I rejoined my work on Aug 20, 2015 and company paid me for 9 days, where as the total working days should be 10, excluding Fridays”.

To this the company had replied: Kindly note that this month is 27 business days and our salaries are divided over 26 days so I believe you have received your monthly salary in complete.” My belief is that following should be the calculation: Total Salary/26 = 1 day salary – I worked for 10 days, so the calculation should be 10 day x total salary/26.

Please clarify.

Name withheld
Answer: We answered this question very recently but just in case you did not see the Arab Times on that day the answer is reproduced below for your information and the other readers. “Both you and the company are wrong. First of all you are entitled to 26 working days salary in a month when the number of working days are only 26. But you are entitled to 27 days salary if the working days in a particular month are 27. Although, in the end both the calculations work out to be the same.

Confused … well, don’t be as we will explain through easy example. Suppose your salary is KD 500, then your daily salary works out to be KD 19.231. But if there are 27 working days in the month then your daily salary happens to be KD 18.519. In the end you will find out that you get KD 500 per month in both situations.

This is your salary and you can’t get more than this amount regardless of whether there are 26 or 27 days in a month. Your company is wrong in its calculations because if suppose you had been absent for one working day — in a 27-day month — and it based its calculations on a 26-day month then it would end paying the whole salary although one day’s salary needs to be deducted. Otherwise, in such a case an employee who attends work on only 26 days would be getting his full salary as would an employee who works the whole 27 days.

So, while the company is calculating wrong, you still ended up getting your full dues so there nothing that you can claim.

There is news that the government has stopped transfers of government project visas since January 2015. What is current stand of MOI (Ministry of Interior) on such visa transfers to another company? I am B.E graduate and have an engineering visa and have spent more than 3 years with the same company. Am I eligible for a company transfer?

Name withheld

Answer: There is a lot of confusion on the issue because transfers of government project visas are very restricted these days but this doesn’t mean that you can transfer to another sponsor. But before you jump to conclusions read the following:

As recently as in March — after issuing a similar verdict on Jan 11 this year — Manpower Public Authority Director Jamal Al-Dousary issued an administrative decision allowing expatriates working on government projects to transfer visa from one sponsor to another.

But this is very the clarification comes in. Workers in similar situations were in the past only allowed to transfer their visas to different companies but under the sponsorship of the same employer after the completion of their contracts.

But now the new decision clarifies that laborers contracted locally from the private sector or transferring from dependant visas can transfer to other sponsors according to the previous conditions, which are:

1. Conclusion of the project’s tenure

2. Working for at least one year for the first sponsor

3. Getting the sponsor’s approval for transferring.

So, this makes it very clear that if you were contract from abroad for this government project then you can’t transfer to another sponsor (your length of service no longer makes any difference ) but if you transferred to this project locally from another sponsor / company then your transfer is allowed.

I have been in Kuwait for the past 6 years. I have a family status and my wife is with me in Kuwait … her visa expires in April 2016. Now my salary is KD 300. I heard that the basic salary for family status will become KD 400. My question is that, can I renew my wife’s residence with this salary in future.

Name withheld
Answer: Please remember that all expatriates who have obtained family residence for certain conditions are not affected when they go for renewal of these residences. So, you won’t have any difficulty in renewing the residence of your wife even if the ceiling for obtaining such a residence is raised, although such a move is “all talk” at the moment and doesn’t look like being enforced in the immediate future.

I need some assistance as I have a valid residence but my sponsor, under whose residence I am, has a case of number 31 against his company. I have already found a new job while my new sponsor wants me to transfer to his company but I am not able to transfer as my current company’s file has been blocked due to a case against it.

Kindly suggest what needs to be done in order to transfer my residence to the new sponsor.

Name withheld

Answer: Well, you are stuck until the file of your company is reopened because as long as this file is closed — for whatever reason — no transactions of the company’s employees are allowed. The only other way around this problem is for you to take your company to court over the issue. It is possible — after listening to your arguments — that the court may order the Ministry of Social Affairs and Labor to allow your transfer.

I am currently working in a reputed coffee-shop in Kuwait and have already resigned. I am now serving the notice period of 90 days. I worked in the company for (7) seven years and 4 months. My current gross salary is KD 300. I wanted to know how much would I get as indemnity after all the clearance is done. I don’t have any debts or credits from any company or individual.

Name withheld

Answer: As you have resigned after seven years and four months (including the service period) you are entitled of two-thirds of your indemnity because such is the case for expatriates who have put in over 5 years but less than 10 years service.

Your indemnity would, however, be calculated as follows:

Salary = KD 300

Service = 7 years 4 months

You get 15 days pay for each of the first 5 years service = 75 days but these have to be divided by 26 (working days in a month) = 75 / 26 = 2. 88 months salary

After that you get one month’s salary for each year of service = 2. 33 months salary

Total = 2. 88 + 2. 33 months salary = 5. 21 months salary = 5. 21 x 300 =KD 1,563

But as you have worked over 5 years but less than 10 years you are entitled to two-thirds of this amount = KD 1,042.

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I need to understand the process of indemnity calculation. I want to know the indemnity in my case. I will be completing 10 calendar years service by March 2016. I am currently serving the notice period of 3 months, from January 2016.

My salary is KD 1,125 but with the allowances I get KD 1,550 per month. Over the 10 years that I have been in service I have taken a total leave of 13 months. Please advise my indemnity calculation.

Name withheld
Answer: Although you have “completed” 10 years service, things could become complicated for you if your company takes a close look at your annual leave record. We say this because many companies take the annual leave availed over the service period into account while calculating the indemnity. A close look at your record reveals that you have taken three months over and above your entitlement of 10 months annual leave for 10 years service. Some companies ignore this fact, but most don’t … If your company takes these “extra 3 months” into account, you will not be able to complete your 10 years service.

These three months will be deducted from your service …so, your service at the end of the three-month notice period with be 9 years 9 months. This will drastically affect your service because if you don’t complete the 10 years service, you will only get two-thirds of your total indemnity. But we will work on the scenarios of both the situations (full indemnity and two thirds indemnity) so that you know how much you will get regardless of the method adopted by your company. But before we go on and work on the calculation of your indemnity, please understand that your indemnity, according to the Kuwait Labor Law, must be calculated according to your remuneration and not on your basic pay.

Article 55 of the Kuwait Labor Law states that “Remuneration means the basic payment the worker receives or should receive in consideration of his work in addition to all the elements stipulated in the contract or the employer by-laws. “Without prejudice to the social allowance and the children’s allowance granted by the virtue of Law 19 of the year 2000, the remuneration shall include the payments made to the worker on periodic basis such as bonuses, benefits, allowances, grants, endowments or cash benefits”.

Now, we need to have a look at Article 62 of the Kuwait Labor Law which says “The calculation of the worker’s entitlements shall be made on the basis of the last remuneration received by the worker”. Unfortunately, as we said earlier, most of the companies are interpreting the law according to their own liking and calculating the indemnity of their employees only on the basic pay, which is totally wrong. After having said all the above we come specifically to your case and your indemnity, if done correctly with the use of remuneration ( basic pay plus allowances), should be calculated as follows:

Situation 1

Service = 10 years Pay = KD 1,550 (basic pay plus all allowances) So, for the first 5 years you must get 15 days pay for each year of service = 75 days But these 75 days must be divided by 26 (working days in a month) = 2.88 months pay For the next 5 years you must get one month’s pay for each year of service = 5 months pay Total indemnity = 7.88 months pay = 7.88 x KD 1,550 = KD 12,214 So, you should get this full indemnity (KD 12,214) if the company accepts your service of 10 years, not considering the extra leave you took.

Situation 2

Service = 9.75 years Pay = KD 1,550 ( basic pay plus all allowances) So, for the first 5 years you must get 15 days pay for each year of service = 75 days But these 75 days must be divided by 26 (working days in a month) = 2.88 months pay For the next 4.75 years you must get one month’s pay or percentage for each year of service = 4.75 months pay

Total indemnity = 7.63 months pay = 7.63 x KD 1,550 = KD 11,826.500

But as your service is less than 10 years you will get two-thirds of the above indemnity = KD 11,826.500 x 2/3 = KD 7,884.300

Since 2006, I have been working in Kuwait for private sector firms. I worked 5 years in one company in Kuwait and in 2011 (September) I got a release from them . Now I completed four years with my second company. Again I want to get a release so that I can join another company but I am unable to get this release because my visa is of a government project.

Please advise me whether I can get a release or should I wait until this is allowed by the concerned ministry.

Recently I read in the Arab Times that the ministry already allowed such transfers but I am not quite sure.

Please help me.

Name withheld
Answer: Unfortunately, you can’t get a release under the present circumstances and will have to wait for any amnesty granted — on the subject — by the government. What you read in the Arab Times was unrelated to this issue and focused on those expatriates whose companies files had been closed under articles 71 and 72 and they could not transfer their residence.

The Ministry of Health doesn’t give more than 28 days maternity leave for its female expat workers as breast feeding is not their right.

The Ministry of Interior requires that a working woman can’t keep baby in Kuwait just because the father is not a resident so she is forced to send the baby to her home country and so can’t feed or give any maternal care.

Expat babies don’t have right to breast milk for more than two months (one month annual leave is usually taken after maternity).

I take this opportunity, through the Legal Clinic to request the authorities to take note of this basic need for every baby irrespective of nationality.

Name withheld

Answer: You are wrong. The Kuwaiti laws clearly allow a child to be breast fed until a certain age. In fact, it details that a two-hour break must be given daily to the mother — after the maternity leave — so she can breast feed her child.

But yours is a different kind of problem because your husband is only a visitor to the country and does not have Kuwait residence. In such a case, you do not enjoy such privileges for too long because you are required by law to ensure that you take the child out of the country within 60 days of its birth. As a mother you can’t sponsor the child, only the father can. So, the issue is a legal one, not humanitarian.

The other day we read in the newspaper that was no ban on any nationality as regards the issuance of visit visas.

I am a Pakistani and recently went to the Farwaniya Immigration Department to submit an application for a visit visa but the immigration officer refused to accept my application and said that I should approach the head of the Ministry of Interior to get a No Objection Certificate (NOC).

We know well no one will entertain us there too.

Is this another way of rejecting our application.

Please advise how to get the visas for our children?

Name withheld

Answer: Like the official said “there is no ban on the issuance of visas to any nationality”… there are only some “restrictions”. The Kuwait Interior Ministry has already detailed which categories of Pakistan can receive the various types of visas and the procedure involved in getting these.

All types of visas are being issued to Pakistan but these are limited in number as the procedures to obtain these have been tightened.

In some cases, there is a requirement to obtain an NOC from the Ministry of Interior.

Applications in this regard are received by the Ministry of Interior in Sharq and the authority to issue these NOCs has now been delegated to an Assistant Undersecretary at the ministry.

Earlier, this authority only lay with the Undersecretary, a very senior official whose ranking came only after the minister.

So, visit the Ministry of Interior and apply for the NOC. Yes, it will be difficult but then a lot of Pakistanis have managed to get these NOCs so why not you. Just try your luck, you could very well succeed.

First of all, I would like to thank  you for your free legal advice to  many expatriates here in Kuwait.  My inquiry is as follows: I have  been working as a secretary in a  Kuwaiti company for the past 6  years (Joining Date: 23.01.2010).  My salary on the last work permit  was KD 260, and all the transactions in this regard have been  made by the company through the  bank.

But my problem is that the total  salary has three components  (Basic KD 210 + food KD 25 +  allowance 25 = KD 260).

Right now I am planning to finish  my job with the company with a  view to get a final exit with a notice  period of 3 months now (My last  day with the company may be  02.05.2016)

Can you advise me on the calculation criteria for my indemnity for a  working period of 6 years 3 months  with the salary of KD 260

Name withheld
Answer: Before we directly answer your question, we need to have a close look at the word “remuneration”, which is what should be used — according to the Kuwait Labor law, enacted on Feb 20, 2010 — for all calculations linked to overtime pay, annual leave pay and even indemnity.

The reason for going back to the Labor Law is that most of the companies in the country — even the so-called reputed ones — are interpreting the law wrongly, for their own benefit.

Article 55 of the Kuwait Labor Law states that “Remuneration means the basic payment the worker receives or should receive in consideration of his work in addition to all the elements stipulated in the contract or the employer by-laws.

“Without prejudice to the social allowance and the children’s allowance granted by the virtue of Law 19 of the year 2000, the remuneration shall include the payments made to the worker on periodic basis such as bonuses, benefits, allowances, grants, endowments or cash benefits”.

Now, we need to have a look at Article 62 of the Kuwait Labor Law which says “The calculation of the worker’s entitlements shall be made on the basis of the last remuneration received by the worker”. Unfortunately, as we said earlier, most of the companies are interpreting the law according to their own liking and calculating the indemnity of their employees only on the basic pay, which is totally wrong.

After having said all the above we come specifically to your case and your indemnity, if done correctly, should be calculated as follows:

Total pay = KD 260 Service = 6 years 3 months

For first five years indemnity will be calculated on the basis of 15 days pay for each year = 75 days

but these days must be divided by 26 (working days in a month) = 2.88 months salary

For the remaining service the calculation must be made on the basis of one month’s pay for each year = 1.25 months pay

Total indemnity = 4.13 months pay = 4.13 x KD 260 = KD 1,073.800.

But according to the Kuwait Labor Law, if your service is over 5 years but less than 10 years you get only twothirds of the indemnity if you resign. So, you will get only KD 715.860 as your total indemnity if the company calculates the same correctly.