Legal Clinic

  • Indemnity Calculation for 11 years service

    I request you to provide me the indemnity calculation ( as I have resigned) for the period of service mentioned below along with the other details. Date of joining: 08/10/2004 Date of resignation: 29/10/2015 Last working day: 29/01/2016 Total service: 11 years, 3 months, 3 weeks You are requested to provide a detailed reply according to the Kuwait Labor Law for the Private Sector.

    Name withheld
    Answer: We answered this question very recently but just in case you did not get the Arab Times on that day the same answer is being reproduced below for your information and that of the other readers.

    To calculate your indemnity we need the full information and in your question you have provided us details about your service but left out the most important detail…your salary, without which we can’t proceed further. But we will still help you in a way that you won’t face any problems in working out the indemnity yourself.

    First of all you are entitled to 15 days pay for each of the first five years = 75 days but these days have to be divided by 26 (working days in a month) = 2.88 months salary For the rest of your service you are entitled to one month’s salary for each year = 6.3 months salary So, total indemnity = 9.18 months salary To calculate your indemnity just multiply 9.18 by your salary and you will get the amount due to you.

    Please remember that as you have completed 10 years service, you are entitled to the full indemnity regardless of the fact you resign from service or your services are terminated.

  • Transfer from Article 17 ( Project Visa) to Article 18 (Private Sector Work Visa)

    Four expatriates, including my friend, who were working on an Article No 18 residence were transferred last year in January/ February 2015 to a government Article 17 residence.

    They had been working for the past 5 years in the same company. Unfortunately the Mandoob (company representative) transferred their residence to the Article 17 residence without their knowledge and they realized this later.

    By this time it was too late as the realization came after some months. Now my question is how can this matter be rectified and what impact will such a foolish mistake committed by the Mandoob have. These four persons residence are due for renewal in 2016. What is to be done? Will they be transferred back to visa No 18? Have they lost all their indemnity, dues etc? Your immediate answer will be highly appreciated

    Name withheld
    Answer: A lot of expatriates are facing a similar situation and really don’t know what to do because they really don’t understand the difference between being hired from abroad for a certain government project and being transferred to a government project visa locally.

    There is a world of difference between the above two situations and we will try to make things as clear as possible although we have dealt with the subject a number of times in the past few months. This confusion is the result of useless talk (from people who know nothing of the immigration laws) on the issue because transfers of government project visas are very restricted these days but this doesn’t mean that you can’t transfer to another sponsor.

    But before you jump to conclusions and think that we have given you the green signal on the issue, read the following: As recently as in March — after issuing a similar verdict on Jan 11 last 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 where 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 dependent 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 contracted 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.

    In your friends particular case, they were transferred locally to the government project and as such they should not have any difficulty in transferring back to the private sector.

  • Maternity leave for Ministry staff and Private Companies

    Thanks for all the replies and guidance provided to the readers through your Legal Clinic column. My wife is working as a nurse for the Ministry of Health (MOH) and I just want to know why the maternity holidays policy for ministry staff (30 days) and private companies staff (45) is different. Is there different maternity policy/ article for ministry and nonministry staff.

    Name withheld
    Answer: First of all we would like to make clear that there is a lot of difference between the Kuwait Labor Law for the Private Sector and the rules that govern the working conditions of all those working for the government ministries.

    There is a further difference in the policy for the ministry staff and the staff of the private companies working in the government sector. The maternity leave for those working in the private sector is 70 days but for those in the government sector this leave depends on the individual contracts and in most cases this is 30 days.

    For the private companies staff, if they are working in a ministry, it again depends on the terms and conditions agreed between the ministry and the company. You have, however, to remember that if the residence of the employee remains with the private company and not transferred to the ministry for the duration of the contract, the employee’s leave will be 70 days. So, as you see there is a difference in the maternity leave in different cases.

  • Overtime calculation on weekdays and holidays

    Can you please give us the various calculations for overtime in different situations?. Our contract says we are entitled to overtime at the rate 1.25 times the basic salary as overtime on week days and 1.50 times if the overtime is on holidays. I would like to know if we are following the Kuwait Labor Law and how much we should calculate the overtime for working on the weekly off days and official holidays.

    Name withheld
    Answer: To work out the overtime correctly, one must have a look at Articles 66, 67 and 68 of the Kuwait Labor Law.

    The section of Article 66 which speaks on overtime clearly says that the worker is entitled to a 25 percent increase over his original remuneration for the period of overtime. This means 1.25 times the remuneration of the normal working period.

    Article 67 talks about working on weekends. It clearly says the worker shall be entitled to at least 50 per cent of his remuneration, in addition to his original remuneration and to another day off instead of the one on which he worked. This means the worker not only gets 1.5 times the normal remuneration but also another day off and if you are not given that day off, then payment must be made also for that day.

    Article 68 says that if a worker is required to work on an official holiday, he shall be entitled to double remuneration and an additional day off. It is also very important to mention that the law uses the word the “remuneration” for the calculation of the overtime and not basic salary. “Remuneration” means the basic salary plus all the other allowances that a worker receives regularly.

    The Kuwait Labor Law, second para of Article 67, also makes it very clear that overtime is calculated by dividing the worker’s remuneration by the actual working days without including the weekends, although these weekends are paid. But, before, we go on we must make it clear that for this purpose a month is considered to have 26 working days even for those companies which work 5 days a week.

    This is because the working hours of the 6th day are spread over the five days. So, your contract was right on the calculation of the overtime on regular days and weekends although it makes no mention of work on official holidays. But that doesn’t matter because a worker can’t be given less than what is mentioned in the Kuwait Labor Law.

  • Absconding Case – Egyptian Mandoub trying to make money

    Dear sir, kindly help me if possible. My company filed a “runaway case” against me some four years ago. I managed to negotiate with the company’s kafil (sponsor) and he agreed to withdraw the case.

    The sponsor has signed the necessary document and handed it over to the Mandoub (company representative) to submit it to the proper place in order to withdraw the case.

    Now, the Egyptian mandoub is asking me to pay KD 600 to end the case … he states that “it’s been a long time and without money this case cannot be withdrawn — else, you have to go back to your country”.

    Kindly let me know, if this true — that without the money (KD 600) this case cannot be withdrawn. If so, kindly guide me what should I do.

    Name withheld
    Answer: There is no money involved in such cases. The Ministry of Interior studies all such cases and gives its decision depending on the merit of each case.

    Yes, it is true that a lot depends on the sponsor dropping the case against the “absconder” but with the Ministry very strict on the issue these days it all depends on the investigation into each case.

    In some cases, even when the sponsor has withdrawn the case the Ministry has deported the expatriate who “ran away” from his sponsor.

    What we feel is that the Mandoub is trying to make a few dinars, nothing else. The police don’t ask for money or fines. If it finds that you deserve being let off it will let you go free and if not, regardless of what you do, you will be punished.

    So, forget about paying the Mandoub and go and see your sponsor again. We are sure that the Mandoub is asking for the money without the knowledge of the sponsor.

  • Difference between Tourist Visa and Visit Visa

    Recently there were news that “visit visa which was free will now cost KD 30 and tourist visa which was also free will now cost KD 90”.

    I have following questions:

    (1) Last year I was in Kuwait and received the visa on arrival, and paid KD 3. If the visa was free then why I was charged KD 3 on arrival?

    (2) What is the difference in visit and tourist visa?

    (3) I am planning to visit Kuwait again in April 2016, which visa will I get visit or tourist visa? Moreover, how much fee I have to pay?

    Name withheld
    Answer: So far, all that you have read is proposals which have not been approved nor is there a likelihood of the approval being obtained –for such high fees – in the near future. First of all, the visit or tourist visas were never free.

    KD 3 was being charged for both. Now coming to the difference between the two visas –there is a lot of difference between the two but people have started to think both are the same — well they are not. Visit visas are issued to those people who are sponsored by their relatives or some firms.

    These people come to visit their relatives or have been called to the country for some business by the firms.

    Tourist visas are those people who are coming to Kuwait, just to see the country and are not on visit to their relatives or business trips.

    They people are touring the country on visits arranged by tour operators or hotels. So, in your case, if you are being sponsored by a relative or coming on a business tour –sponsored by a firm—you will be considered a visitor.

    But either way, it doesn’t make any difference because the fees for both the categories so far is KD 3 … and there is no likelihood of a drastic change in the near future.

  • Driving license status for a Teacher to Housewife and back as Teacher

    My wife started her career in Kuwait as a teacher in private school, while she was working in school she got the driving license. After working for few years due to some health issues, she left the job and became a housewife… after transferring her residence to a dependent one. I have already renewed her license twice. Now she is getting an offer from a private training institute to teach students in the institute. My query is if she transfers her residence to a private training institute will it affect the validity of the license.

    Name withheld
    Answer: You should not worry about anything because the orders for cancellation of the driving licenses because of change in designation applies only to those expatriates who obtained the licenses with designations like driver, student, mandoub (company representative) and housewife. As such you are not affected by the change in your designation and your license will not be cancelled.

    More importantly, the Ministry of Interior recently announced that the decision on the change of dedesignation will only be applied to those made the change after decision was announced last year not to those who made the change before the decision was announced. So, in your wife’s case she can change her status as many times as she wants, it will not matter and she will retain her license

  • Giving Private Tuition

    I am a housewife residing in Kuwait. I have read many news items that say “teachers who are caught giving tuitions are fined and deported “. I am a housewife. I am not working anywhere and I am only dependent on my husband’s visa. Can I give tuition to kids at my house where I am living or is illegal to give tuitions even in your own house? Kindly guide me. Can I continue giving tuitions at home or should I discontinue them?

    Name withheld

    Answer: If you look around where you live, you will find hundreds of teachers involved in giving private tuition which results in people believing such an activity is legal.

    On the contrary, nothing could be far from the truth because Kuwait’s Ministry of Education has declared private tuition totally illegal.

    In fact, once in a while, raids are conducted by both the Ministry of Education — in collaboration with the Ministry of Interior — to arrest such teachers who provide private tuition.

    All the people who are arrested face legal action which results in them being deported from the country. Such raids have been so few over the past few years that private tuition has become rampant with reports that a lot of teachers don’t teach properly at schools so that the students have no option but to take extra classes from them.

    Having said that, considering the fact that private tuition is illegal — we would like to advise you to stay away from such an activity.

    If you indulge in this activity you might be lucky and get away with it for a while but in the end you will be caught and deported from the country. So, to sum it up, you should respect the law and stay away from “private tuitions”.

  • Pregnancy & Termination

    I am in the seventh month of my pregnancy and I have been missing office at least once a week because I am often sick, with a medical certificate to prove my inability to come to office. Now, the company says it cannot tolerate my being away from office and may terminate my services. Can the office do this … because if my services are terminated I will not get a job in another company because of the pregnancy. What can I do? I need the job to meet the expenses of our family. Your advice would be really appreciated

    Name withheld
    Answer: According to the Kuwait law, the company can’t terminate you because of your pregnancy or because of any absenteeism — as long as you have a medical certificate proving that your illness and the subsequent absence is linked to the pregnancy.

    But if you are absent without any medical certificate then the company has the right to dismiss you. In this connection we would like to draw your and company’s attention to the last paragraph of Article 24 of the Kuwait Labor Law enacted on Feb 20, 2010.

    The law states “The employer may not terminate the services of a working woman while she is on maternity leave or during her absence from work because of her sickness that is proved by a medical certificate that the sickness resulted from pregnancy or giving birth”.

    In view of the above law please remember that if the company has specifically told you that your termination could be linked to the pregnancy you can file a case (when you receive a termination notice) with the Labor Department in your area and request reinstatement until your problems — linked to the pregnancy — are over.

    The other alternative you have is to take your maternity leave as soon as your ninth month of pregnancy starts because you can take this leave whenever you want but keep one point in mind — the birth of the child must fall within these 70 days of maternity leave. Please remember that after the maternity leave the law allows you, under the same Article 24 of the Kuwait Labor Law, to take a maximum of four months of unpaid leave to take care of the baby.

  • 18 years service maximum payment of Indemnity

    Need your expert legal advice on how to proceed with the following matter. I have been in employment with my current company since 1982. The company, however, says that a total of only 18 years service will be calculated as far as indemnity is concerned. They have not taken into consideration the service from 1980 to 1990 (pre-invasion period) whereby an Amiri decree was made that full indemnity up to the invasion period should be given. Is there any law that the dues up to invasion period be settled separately and then after invasion?

    Name withheld
    Answer: This is a question which is on the lips of a lot of people, especially those who have worked over 25 years with their current firms i.e. they were here before the invasion of the country.

    Immediately after the liberation of Kuwait it was decided by the topmost authorities that the pre-invasion indemnities would be paid in full and calculated separately from the postinvasion indemnities. So, a majority of the firms immediately settled the indemnities of their employees and started anew with the calculation of indemnities for the post invasion period.

    This went on for almost 18 years when the Ministry of Social Affairs and Labor – on representation from a lot of big firms — decided that the calculation of both the pre and postinvasion periods could be combined.

    This action has never been challenged in any court of law. So, as the current situation stands the calculation of indemnities for both the periods is combined and an employee is entitled to a maximum of 18 months salaries. Please remember, however, that these 18 months salaries doesn’t include any other dues — like payment for any balance of annual leave

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