Legal Clinic

I recently received a job offer from one of the ministries and I have signed a contract. On reading it later I found out that it says “no end of service gratuity”. Can you please give me details such special contracts. Are such contracts common for expatriates employed by all ministries or is this one only a special contract. Is this end of service gratuity similar to the indemnity in Kuwait’s Labor Law.

Name withheld

Answer: We have answered similar questions over the years but we will again answer the above for the information of our readers.

First of all please remember that the Kuwait Labor Law is only for the private sector and not the public sector.

Secondly, a majority of the new contracts signed by the ministries are special contracts and all the terms have to be negotiated by both the parties. Most of such contracts nowadays make no provision for gratuity or indemnity.

Both gratuity and indemnity are the same but the ministries go according to the special contracts and can’t be made to pay anything in this regard unless there is a specific mention of such a payment in the contracts. In the private sector, however, it is against the law to mention that there will be no indemnity. Even if there is such a provision and you sign the contract, it is against the Kuwait Labor Law and the contract is not only declared invalid, you are also paid the indemnity as mentioned in the law and nothing less.

I worked in a company mainly dealing with imported foods from world over from June 2007 to April 2015 before I resigned from this firm. The company transferred a fixed amount as salary through the bank and paid the difference in the salary and allowances in cash during my tenure with them. I don’t have a work contract. But the company renewed the residence over all the years. I have now transferred my residence to another company. But still I have not received my settlement from the previous company. I came to know that the management will not give the indemnity because the company is under “shops and establishment category”. So there is no need to give the indemnity (management’s words). So please let me know whether I am eligible for any indemnity for the service as per the Kuwait labor law. Also let me know whether there is any law that if a company is under the “shops and establishment” category, there is no need to give the indemnity.

Name withheld

Answer: The company is lying and trying to get away from its obligations by not paying you any indemnity. All of the private sector, regardless of any category, is covered by the Kuwait Labor law which was enacted in February 2010 and as such must ensure that the indemnity mentioned for various stages of employment must be paid to the employees. If your previous company continues to insist on not paying you your indemnity, you must file a case with the Ministry of Social Affairs and Labor through the Labor Office in your area.

I have come to Kuwait on a project visa, Article 18. I have been working in Kuwait for 2 years … my project is still functioning … but can I get a transfer to a private company ? I was trying to find out the right resources to get a clear answer on the recent law prohibiting those who are on government project visas to be transferred to the private sector.

The current situation on this matter is extremely unclear because the messages and instructions I get from different sources contradict each other.

One says having sufficient years of work on a government project visa (a minimum of 3 years) permits one to be transferred to the private sector while other sources refer to some articles in newspapers highlighting strict conditions prohibiting transfer from government projects visa to the private sector and instead, requires one to leave the country and return on a new work visa … which is not a workable condition for me and probably for many other skilled professionals residing in Kuwait with family and kids.

I even wrote a letter to the Ministry of Social Affairs and Labor, through their official web page, but didn’t get any feedback. I’m an engineering consultant working for one of the major international engineering and consultancy company with a secondment contract providing engineering support to one of the companies of KPC.

Due to extremely high rates that my secondment costs to mentioned above company I was given an offer to join them directly and continue contributing to the company’s strategic objectives as a direct employee.

Unfortunately the current conditions — as regards the above highlighted recent law on visa/residency transfer — have created a situation where for the last 4 months neither me nor the representatives of the company which offered me the job could find any clear and straight forward solution to deal with this indeed difficult situation.

I’m pretty sure that there are certain conditions which provide opportunity and flexibility for immigration clerks to treat such issues on a case by case basis, giving a slot for uninterrupted visa/residency transfer once certain preconditions are fulfilled.

Through this e-mail I kindly request you to help out on this issue and investigate the case with the Ministry of Social Affairs and Labor, further publishing a clear and straight forward article to brighten the probably thousands of those who are stuck and suffering from the current conditions which prohibit the transfer of expatriates on government project visas to the private sector.

Name withheld

Answer: You are right, there are a lot of conflicting news reports on the transfer of expatriates on government project visas. So much so that the public is now totally confused on the issue. But the fact remains the government is very strict on the transfer of government project visas and all the transfers in this regard have been suspended by the Public Authority for Manpower.

The Director of this authority says most of such transfers are linked to trading in visas. So, until this suspension is lifted all the transfers — without exception — remain suspended. While that is the current situation to the best of our knowledge, we recommend that your new firm write to the Legal Department at the Ministry of Social Affairs and Labor. This department is very prompt in replying to such queries of companies and gives very clear advice on every issue. This will clear all the doubts in this regard.

I joined a company in 2012 and am currently working in the same company. In 2014, I had taken leave for 2 months — February and March — which was my eligible leave balance from 2012 and 2013. Now I am planning to go on vacation this November, and I checked with my accountant but he says that he shall calculate my leave only for the months I worked in 2014 — that is 10 months only, excluding February and March.

As per him I will be eligible for annual leave only for the days I worked, even the days I was absent (4), he says that he shall not calculate leave on those days too as well as the vacation I took in February and March 2014. Kindly advise as per law for how may days leave should I get as I am planning to go for 2 months.(I have my leave balance for 2014 and 2015.)

Name withheld

Answer: You are entitled to 30 paid days leave every year, which means 11 months of work and 30 paid days of leave. So, if you have already worked for four years you are entitled to 120 days of paid leave for the period. The period you spend on paid leave is also part of your service and as such it must figure in the calculations for your annual. As you have not given the exact dates of your joining the company we can’t give you the exact number of days you are entitled to but we have told you — in the preceding two paras — how it must calculated. Most importantly, the actual number of days that you can go on leave each year is 34 because the weekly off days are not counted in the “30 days paid leave”.

I am a regular reader of the Arab Times and the Legal Clinic is very useful for expatriates like me. I have a query related to leave salary if a person is terminated during probation.

I was terminated during the third month of my probation period. I would like to know if I am entitled to a payment against the leave I have accumulated during my probation? In my case it would be above 5 days. If yes, what is the reference article number in the Kuwait Labor Law that I need to show to the employer.

Since my monthly salary was high this is quite a considerable amount which was not paid although the indemnity amount and the salary for the days I worked during the month was paid.

Appreciate if you could provide me with an answer and a reference in Kuwait Labor Law as well.

Name withheld
Answer: The problem is that employers read only the first few lines of Article 70 and totally ignore the last sentence which says, “The worker shall be entitled to a leave for the fractions of the year in proportion to the period he spent in actual service, even the first year of service”.

The question of the “9 months service” issue comes only when the service is continuing and a person has not been terminated.

So, if a person is continuing in service and wants to go on annual leave he won’t be paid for the duration unless he completes at least nine months in the job.

On the other hand, if his services are terminated he must be paid for the annual leave he has accumulated regardless of the fact that he has served less than nine months.

Both of my children were born in Kuwait and I also got their birth certificates from here. Now I seem to have misplaced these documents and need them for my children’s admission to a local school. What is the procedure to get a duplicate birth certificate for a child born in Kuwait. Will I face any difficulty?

Name withheld

Answer:We have answered similar questions a number of times over the years but just in case you missed the procedure we detailed we will again answer the question for the benefit of all our readers.

This is a simple procedure and you won’t face any difficult in getting a duplicate (or a True Copy as the Ministry of Health calls) of the birth certificate.

This service is provided by the Ministry of Health and allows citizens, residents and visitors to get a True Copy of the birth certificate as a replacement for a lost or damaged certificate.

To get this certificate the applicant or his agent must visit the Central Registry (located in Maidan Hawally) for the Births and Deaths Department of the Ministry of Health and submit the following documents:

■ Applicant’s personal identification (Civil ID, nationality certificate or passport)

■ Copy of the birth certificate, if available.

In case no copy of the birth certificate is available, the birth date and location and the birth certificate issuing center must be known.

There is a fixed fee of KD 2 and after submission of the above documents you will be given a date to collect the certificate. It is also possible that if there is no rush, you might be able to get it immediately.

I am a trained teacher from Ghana with eleven years of teaching experience. I also have certificates in banking and cashiering. Just recently, I was told by an agent that I could get a teaching job in Kuwait. I didn’t know there were differences in the visa.

When I arrived in Kuwait, I was told that my visa, Article 20, is only for house help job. Please help me because I didn’t sign any contract to that effect and the agent deceived me to believe that I was coming for a teaching job.

Now they said my visa is non-transferable so I must work as a house help for two years or pay 600 KD and go back to Ghana. I am begging you to use your honorable office to save me from this predicament.

1. Help me with a transferable visa

2. Help me get a teaching or cashier job. I have all my certificates.

Name withheld
Answer: From your letter it seems that you bought your visa from a visa trader rather applying for a job with one of the local companies and then getting a visa from that firm. Keeping that in mind there is nothing you can do to get out of your situation because the law penalizes both the parties involved in the visa trade, more so the person who sells such visas.

If you go to the authorities you will also have to face legal consequences with the end result being that you will be deported from the country.

There is no legal way out of this situation and you will have do the best you can with what you have in hand.

On the issue of helping you get a transferable visa or securing a job for you, we must clarify that the Legal Clinic is aimed at only providing legal advice to the readers. We must stress that we are not in the business of providing visas or jobs.

I am from India and have been working in Kuwait for the last 2 years. Currently I have a KD 5,000 loan from one of the local banks.

The loan is already “10 months old”. I am getting the installments plus the interest deducted on a monthly basis from my salary account. At the moment, due to some emergency reason, I have come to India and am not able to go back to Kuwait at this time.

Now I have the following questions:

A. Can I keep transferring the monthly amount to the bank from my Indian bank.

B. Within one year I want to go back to the Gulf or Kuwait. In that case, if I pay them the accumulated interest also, but will that create any problems for me?

C. Do the Kuwait Laws say that if anyone takes a loan from Kuwait he/she must pay back the loan before he leaves the country? If the monthly interest can be transferred from an Indian bank, will that be an issue?

D. As I came on an emergency vacation and did not go back so my visa was not cancelled. It may be cancelled once it expires? Will it have an effect on the loan if I continue paying the monthly interest.

E. What is the legal action that be can be taken? Please advise.

Name withheld
Answer: In this case we will just tell you to contact the bank as every bank has a different set of rules for every situation and if you don’t let the bank know of the correct situation the person who stood guarantor for you will find himself in a very difficult situation.

He could also face legal action. If there was no guarantor — which does happen nowadays — the bank could file case against you and you could be tried in absentia by the Kuwait courts and sentenced. If such a thing happens, the Indian government would be informed of the verdict resulting in more legal complications for you.

So, approach the bank quickly and negotiate a way out of your situation. We are sure that the bank would be happy that you yourself seek an end to the problem and would most probably suggest a mutually agreed way out of the “crisis”. This would save you a lot of tension and also ensure that there are no hurdles in the path of your return to Kuwait/Gulf.

We have been living in our new apartment for a year. The rent is paid via bank transfers or through the KNET. Suddenly, our landlord has stopped issuing rent receipts to us for the past 3 months. Should we go to the rent court over the issue?

Name withheld

Answer: The fact that you are paying through the bank ensures that you have proof of the rent payment. But having said that, the landlord is supposed to give you signed receipts. So, the best thing is to ask the landlord for the receipts and if he insists on not providing them you can go to the rents court.

I have been working in an engineering & construction company as a supervisor in Kuwait since July 15, 2011. My salary is 300+27 KD.

Now I want to resign from my service after 15 July, 2016,after completion of five years with the firm. Can I get 5 years benefit? During five years service I have been in vacation for 11 months.

How are the five years calculated by the existing Kuwait Labor Law.

Will the company shall deduct my vacation period which I availed during service from the period that I have served with the firm?

Kindly advise me in this regard.

Name withheld
Answer: No, you can’t get the benefit for five years because over these years you have been on unpaid leave for nearly six months.

Please remember that the company has the right to deduct the period you were on unpaid leave from your service, which means that you have to serve an additional six months to complete five years of service.

And after completing the five years service you will be entitled to 15 days pay for each of these years, which means you should get 75 days but these 75 days must be divided by 26 (working days in a month) = 2.88 months.

These 2.88 months must be multiplied by your total remuneration i.e. your basic salary plus all the allowances that you get regularly (2.88 x 327 = KD 942). But please remember that you will get only two thirds of this amount if you resign after completion of five years service.