Legal Clinic

  • Indemnity in ministry

    I am a regular reader of the Arab Times… could you please answer my queries on the following subject.

    I have been working with a ministry, in an office job, for the last 7 years on a second contract.

    If I resign by end of this year, how much will I get as indemnity? Is the indemnity based on the basic salary or the salary with all allowances as a total? Will it be half a month’s salary for first five years and 1 month salary for additional years? Will there be any difference in resignation and termination benefits? Last year, a friend of mine resigned and he did not get the full salary, they deducted the 50- dinar allowance the government declared for ministry staff twice (meaning KD 100 reduced from his salary) and calculated the benefits.

    Is it legal to do so? Now it seems that the private sector law is better than the ministry sector. Civil Service Commission have different procedures for each ministry?

    Name withheld
    Answer: Please remember that the Kuwait Labor Law is for the private sector only and the benefits of the ministry employees depend on the individual contracts and rules and regulations set by the Civil Service Commission. So, it all depends on your contract plus the rules of your ministry.

    You also have to check what sort of contract you have because sometimes ministries have special contracts which stipulate a lot of different things. In view of the above, we can’t comment on your query and we suggest you talk to your HR Department to get the exact details of the benefits you are entitled to receive.

  • Annual & Sick Leave

    I am working in the HR department of one of the private companies in Kuwait. One of our employees took one months annual leave and during his leave period he was sick for seven days and he bought the documents for the sick leave. As per the Labor Law, will these seven days be considered as sick leave or annual leave.

    Name withheld
    Answer: This is a very tricky question and a lot of companies and employees try to interpret the law to their benefit. But remember that the annual leave can’t be combined with any kind of leave.

    According to the correct interpretation of the rules and regulations on the subject, and we have checked this with the Legal Department at the Ministry of Social Affairs and Labor, only those sick leave days towards the start and end of the annual leave are to be treated as sick leave.

    For example, a person falls sick, and he has a certificate to prove his sickness, before he proceeds on sick leave and on the very next day he goes on annual leave then those days will be treated as sick leave. Even those days which overlap the start of his annual leave will be treated as sick leave and deducted from his annual leave to the benefit of the employee.

    These days are then added to the balance of his annual leave. Similarly, if a person is on annual leave and he falls sick towards the end of his leave in such a way that he is still sick when his leave ends then those days are also to be deducted from the annual leave of the employee and added to the balance of that person’s leave.

    On the other hand if a person falls sick during the middle of his annual leave and has already started his annual leave (even one day) and still has not completed the leave (again even if one day of leave is left) then these sick leave days will not benefit the employee and will be counted as part of the annual leave with not even one day to be counted towards the balance of leave.

    Please remember that even this person has a medical certificate from his country to prove his sickness, this certificate has to be attested by at least two doctors from a government clinic on this return to Kuwait before it can be accepted.

  • Traffic violation – Worried about travel ban

    I tried checking whether I had a traffic violation through the e- Justice Ministry web portal and it showed that a Traffic Misdemeanor case had been registered against me on 01/06/2012. As far as I remember there was one accident that took place in or around that date but there was no damage to vehicles of any of the parties. But I remember we were taken to a police station and the police let us leave after taking our details. But in the portal again — with the date 20/09/2012 — it has been specified that a ‘case had been recorded in the center of a certain traffic circle on so and so number’, giving the developments of the case. And but was there was no travel ban mentioned. But I am still worried and want to know whether there will be any problems to travel?

    Name withheld

    Answer: Whenever there is a traffic accident and no written agreement is reached by the parties involved the case is sent by the police to the Traffic Court which holds hearings even if no party is present.

    The Traffic Court must have sent you a notification, which for some reason you must not have received, detailing the date of the hearing plus the reason for the case. It is possible that the other party might have received the notification in which case the case will be decided in “absentia” against you if you are not present.

    So, please approach the Traffic Department/ Traffic Court to find out “what’s happening” and pursue the case. Secondly, the travel ban — if any — is not normally mentioned on the Interior Ministry website.

    You have to approach the ministry to find out if there is any such ban. So, before you travel approach both the Interior Ministry and the Traffic Court to learn about the current state of affairs as regards the case and travel ban — if any — before things take an ugly turn and the case is decided against you.

  • Car Impounded

    My car was impounded last week in Mirqab in one of the intense traffic campaigns. All I did was stop by the roadside for a minute to drop off someone from my car. It took less than a minute and was about to take off when a police officer stopped me and took away my license and registration.

    In spite of repeated requests, he remained unmoved. After almost 45 minutes of waiting, I was asked to follow him to the KPTC bus depot in Sharq, where he gave me a traffic citation which was in Arabic and also asked to sign some papers, all in Arabic.

    I would like to know what are my rights as an expatriate to defend this situation, because I only realized that the police had impounded the car when I was told a KPTC employee to remove my belongings from the car. Is it correct for an officer to impound my car in the above mentioned situation? My car is a new vehicle with proper registration, valid Civil ID etc. Looking for your valuable comments

    Name withheld
    Answer: The main fault in this regard is yours, you signed on the citation papers without even asking what that officer was booking you for and now you will most likely land in trouble.

    The reason we are saying this is that you could have been cited for a minor offense like parking in a noparking zone or even a major offense like operating as a taxi and carrying passengers – which looks most likely in your case or else the car would not have been impounded.

    The traffic officer was legally right in booking you but you aggravated the situation for yourself by signing on the citation. So, the only option left for you is check what you were booked for and then follow the legal procedure if the offence is a major one in the Traffic Court.

    If you were booked for parking in a no parking zone you will just have to pay the fine to retrieve your car. But please approach the Traffic Department to find out why you were booked because that will determine your course of action.

  • Wanted Release – But company has history of not giving release

    I am a university graduate and have been working as an accountant in a private company in Kuwait since April, 2010. Now I am thinking of taking a release due to dissatisfaction with my current salary. But the problem is that I am afraid … if I approach my employer for the same, he will not accept my resignation. And even if he accepts it he may put me in problem during my notice-period working days. Because there is no history so far of anybody getting a release from him. I mean nobody has been able to get a release from him without resorting to legal action.

    Some workers ran away and approached the Ministry of Social Affairs and Labor (MOSAL) which sanctioned their release after a few hearings. Now here is some other information for you: on my work permit I am a laborer and my salary is mentioned as KD 60 only while I am getting KD185 regularly through a bank transfer with free food and accommodation. But I started in this job on KD 60. My employer has six or seven companies. I was an employee of company “A” until October 2014.

    In November 2014 they transferred my residency to company “B”, valid till November 2016. And in all the legal departments only one person is an authorized signatory i.e. etemad taquea. Now my question is can I apply now for a release or do I have to wait until completion of one year for a local transfer. Also suggest a legal way for me to get out of this situation. Can I ask for a release without getting a job? What is the legal way? Note: Currently I am the seniormost employee in my department and have been tasked to lookafter major works of the company accounts.

    Name withheld

    Answer: First of all you can apply for a release only after one year’s service with the new company and you will be completing this one mandatory year in November 2015.

    Secondly, if the company refuses to accept your resignation after this period you can approach the Ministry of Social Affairs and Labor (as other company employees have done), through the Labor Office in your area, as your employer can’t stop your transfer once you complete the one-year period as yours was a local transfer to this firm.

    Thirdly, you can’t get a release without getting another job because you have to transfer to another employer and there is no other legal way out of this situation. On the issue of your pay, it doesn’t matter what is written on your work permit…it is what you are getting that matters and if your employer ever tries to play with this figure you can always go to the Ministry of Social Affairs and Labor with a complaint. All you need is a bank statement to prove the actual amount you are receiving.

  • Son sponsoring father

    I have been an ardent reader of the Arab Times for the last 22 years, especially the Legal Clinic. I seek clarification for my below enquiry. I am 61 years old and will be soon retiring from my job. My eldest son is working here in a local bank and drawing around 1,000 dinars per month. My wife is on my sponsorship and may join soon as a mentor in a local school.

    In case if she gets the job she has to work a minimum of 2 years there and that will be a commitment for her. I have undergone an open heart surgery for a replacement of a dead valve. I am okay now, healthwise. My query is as below. I would like to continue to stay in Kuwait for two more years.

    Can my son sponsor me for 2 years and if so what are the formalities. Please let me know the legal implication for my query.

    Name withheld

    Answer:Yes, your son can sponsor not only you but your wife also but the procedure is different. Sponsorship of parents as dependents is a little more difficult than sponsorship of wife of children because such a sponsorship is decided on a case by case basis by the head of the Immigration Department in your area. You have to present your case well, in a way that it is evident that your parents need you to look after them.

    Your case will be a little easier, comparatively, because of your presence in Kuwait, as it only involves a transfer from one residence to another.

    If the Immigration Department in your area rejects your application, you can approach the Director General of Immigration who sits in the Directorate General of Immigration in Dajeej. The only thing different here will be the residence charges as your son will have to pay KD 200 per year for each parent.

  • Indemnity issue after rehiring back

    I have been working in a general trading company since June 2007. My superiors shifted me from one department to another in April 2010. I got information from my HR Department that I was terminated (on paper) in March 2010 and rehired in April 2010. They got my signature on the re-hired/contract paper but they didn’t say they had re-hired me. They only said it was a new policy and I had to sign the paper. Will this affect my indemnity?

    Name withheld

    Answer: Yes, it does affect the calculation of your indemnity because for the first five years the calculation is based on 15 days a year and after that you are entitled to one month for each year of service. So, if you are terminated and reemployed your indemnity will again be calculated on the basis of 15 days per year. And you have made things worse by accepting the termination and the new contract. You could go to the Ministry of Social Affairs and Labor with a complaint but you are in a “catch 22” situation as you could lose your job. So, it’s up to you to decide.

  • Visit Visa

    I need to get a visit visa for my sister-in-law’s daughter and her husband for 10 days … please tell me if it possible or not and how much will it cost? Secondly, are tourism visas available in Kuwait?

    Name withheld
    Answer: Nowadays, the Immigration Department is very strict in this regard and normally issues visit visas for the immediate family i.e. wife and children … and in some cases parents, brothers and sisters. So, it is going to be very difficult to get visit visas for your sister-inlaw’s daughter and her husband. The charges for the visit visas are nominal — KD 3 for each. While it might be difficult, you should still apply with the immigration authorities in your area, because the issuance of these visas is not totally ruled out. On the issue of tourist visas, yes such visas are available but you have to go through one of the hotels in Kuwait. In such a case, you have to make bookings to stay in the hotel for the duration you are in the country. So, you can imagine how much it will cost you …a lot but that might be your only option if you don’t get the visit visa

  • Rent increase

    I have been staying in an old apartment in Salmiya for the last 20 years. Every 5 years, I have been renewing my contract with an increase of KD 20 in the rent.

    The last increase was from KD 120 to 140. I am due for renewal early next year and the owner is planning to increase the rent by KD 100 (new rent to be KD 240).

    Is this legal or do I have an option of refusing and paying my rent in court.

    Name withheld

    Answer: The landlord has the right to double the rent every five years and the law is “mostly” on his side in this regard. As you have seen, we have used the word “mostly”. This means that if you feel that this hike in rent is unjustified you can approach the Rents Court with your plea.

    While the landlord has the right to increase the rent by 100 per cent every five years, the tenants also have the right to ensure that they are not being made to pay beyond the market rate.

    But you have to remember that the Rents Court will delegate an inspector to check the rents in the area of similar buildings and if it feels that the new rent is in line with the market it will sanction the increase. This is your only hope, although all things look to be going the landlord’s way.

  • 6-mth stay out of Kuwait for students

    Currently I have permission for my son to stay out of Kuwait for the duration of his university studies, which is until June 2016. Please advise whether he needs to again enter the country before expiry of this permission (residence valid until April 2017) or can we again follow the same process and get another year of exemption until the expiry of the residence.

    Name withheld
    Answer: You have to get another exemption but remember you have to get that before the expiry of the current one. This can be done without your son entering Kuwait but remember if you don’t get the new permission before the expiry of the current, your son’s residence will automatically be terminated. So, go ahead and get the new permission a few weeks before the expiry of the current one so that if your request is rejected your son can still land in Kuwait before the current permission expires which will automatically result in him getting another six months to stay out of the country.

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