Legal Clinic

Thank you for your valuable advice in the Legal Clinic of the Arab Times.

Today I need to ask a question about my driving license and that of my colleague. Both of us have joined a new company, we are on engineer visas with an engineering degree. I have a driving license with a one year validity and he has a driving license with 10 years validity, expiring in 2020.

After working for one month in the new company, the new company has said that currently they don’t have quotas for engineers and only for coordinators or technicians. Now my question is that both of us need to transfer our visa to the new company. Will our licenses be cancelled due to this change in occupation or will we be able to keep our licenses.

Kindly note that in the offer letter our post is engineer, it’s only on the residence permit they will be putting mentioning our job titles as either coordinators or technicians. What’s the solution for us to keep our new jobs as well as the driving licenses?

Name withheld
Answer: First of all you have to remember that the law on withdrawal of licenses from those who change designations on the work permits applies only to those who obtained these licenses after the law was enacted in April 2013.

More importantly it applies only on those who obtained these licenses for designations of driver, student, housewife or mandoub (company representative). Both of you didn’t get the licenses for the above designations nor were you given the driving licenses specifically for your designations.

You were given those licenses after meeting the conditions set for expatriates in general to get the driving licenses. So, you don’t have to worry… neither your driving licenses nor your jobs be affected by the change in your designations.

In 2012, I entered Kuwait on a farm visa. Later I got a job in a private company and the farm visa was changed to a private company visa as “Labour supervisor”. After two years, I have now got another offer and have joined a three-year project. My current sponsor has provided me a project visa after changing my designation to “Technician – Mechanic “. After this job if I want to change my residence from project to normal private company visa, will it be possible ?

Name withheld

Answer: We talked on the same issue last week — although the question had been sent from a different angle — and we stressed what is being considered these days is whether you were hired for the project from abroad or you joined the firm on a local transfer.

As you joined the firm on a local transfer, you should not have any problems (and that too without having to leave the country) transferring to the company you wish to join. It now doesn’t matter that you came to the country on a farm visa. That is now history as you are current on a private sector residence which is being converted to a government project residence. For you information, we are bringing the following to your attention.

About almost an year ago — in March, 2015 —after issuing a similar verdict on Jan 11 of the same year, Manpower Public Authority Director Jamal Al-Dousary issued an administrative decision allowing expatriates working on government projects to transfer their visas from one sponsor to another.

This made things easy for only some of the expatriates but a lot of them misunderstand the situation and think that there is a blanket ban on transfer of government project visas But this is not the case and this is where a clarification comes into play and sets the ground rules for the transfers that are allowed. Workers on government projects 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 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.

In the end, as a result of the above decision, we would again like to stress that as you joined the firm on a local transfer you should have no difficulty in transferring your residence to the new firm after you complete the project or after one year with the sponsor’s approval.

My parents are here in Kuwait … dad is retiring from his work in April, mom is a house wife and I am the only son and would like to transfer my dad’s residency to my sponsorship.

In case I succeed to transfer his residence please advise whether my dad’s driving license will be valid as it is expiring in the year 2021 and the license was issued in the year 1978. Also, note that he has been in Kuwait since that year and we only exited the Kuwait during the invasion time and he came back in 1993. Your legal opinion on the above will be highly appreciated.

Name withheld
Answer: First of all let us make it very clear that it has become very difficult for expatriates to sponsor their parents as dependents … but as your parents are already in the country it is possible that such a transfer may be allowed.

Secondly, on the issue of the driving license … it is very possible that your father could lose his driving license because as a dependent he is not entitled to one unless the authorities take a lenient view of the fact that he has held the license for 37 years.

This is our view because neither the Traffic Department nor the Interior Ministry have addressed the status of driving licenses of expatriates who change their residence status from work permit to dependent

I want to ask about an employee who has been working for a company for 4 years before his company terminates him on 31-10- 2015. So, his last working day was 31-01-2016. So can you please tell me whether this employee is also eligible for his vacation salary for the termination period of 3 months — it means for the period 31-10-2015 to 31-01- 2016. I feel that according to the law this works out to be 7.5 days vacation salary, as per the Kuwait Labor Law, which should be calculated and included in the payment of his final settlement.

Name withheld
Answer: Before we answer your question we would like to draw your attention and that of your company to Article 44 (d) of the Kuwait Labor Law enacted on Feb 20, 2010.

This article very clearly says “The employer may exempt the employee from work during the period of notification but shall count such a period in the worker’s period of service. The employer shall pay the worker all his entitlements and remuneration for the period of notification”.

So, it is very clear that you should not only get paid for the 7.5 days annual leave for the notification period but also the indemnity for this period. The indemnity for this period works out to be also 3.75 days pay.

So, the total extra payment you should get for these two entitlements should be added to your final payment.

It should also be very clear that the above days (7.5 and 3.75) should be divided by 26 (working days in a month) and then multiplied by your salary to arrive at the correct figure that you should be paid. Please also remember that you are entitled to your full indemnity because your services were terminated.

First of all I would like to thank the Arab Times for giving free legal advice to its readers. Secondly, I am grateful to the Legal Clinic for answering my earlier question. Now I am re-sending the same question with some changes / updates so that I can act on the same quickly.

I got a job offer on 15-2-2006 and joined the company as an engineer on March 11, 2006 and was gradually elevated to the position of Company Executive and also served as a Project Manager for the company’s various projects. To meet my own level of satisfaction I thought to quit and join another company, so I resigned with effect from Jan 2, 2016 by giving a 3-month notice, expecting the benefits of 10 years as per Kuwait Labor Law with end date of March 10, 2016.

The project to which I was assigned is in the completion stage and nearing commissioning. My notice period of 3 months and project completion is quite matching.

Morally, I am not bound by anything and I refused to take any more assignments since I had verbally informed the company in September 2015 that I would quit after the current project completion. My 10 calendar years of service will be completed on 11th March 2016. My basic salary is KD 1,125 and with other allowance I get KD 1,550 per month. In the last 10 years of service I have taken a total leave of approximately 14 months.

Q1: How will my indemnity be calculated and how much should I get ?

Q2 : I am willing to get a local transfer visa to join the other company without cancelling my own residence and that of my family so as to avoid going back to my own country, redo the medical check up and come again since I am already 51 years old.

Q3: I want to pay back to my company and get an early release after 11th of March 2016 since the other company is pressurizing me to join the firm quickly. I will be highly obliged if the Legal Clinic offers me advice to all my above queries. I am in dilemma and badly need some suggestions to solve my problems.

Name withheld
Answer: We answered your earlier question very recently and we will answer the “changed” question again plus the other question although we will amend our answer a little so that your Question 1 on calculation of indemnity is re-answered. We will, however, use most of our previous answer for the purpose of answering

Question 1. 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 four 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 4 months” into account, you will not be able to complete your 10 years service.

These four months will be deducted from your service …so, your service at the end of the three-month notice period with be 9 years 8 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.

Please note that the Situation 1 from the previous answer will remain unchanged although we will reprint it below. 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 = 9.67 years (after deducting the extra 4 months you took as annual leave ) 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 4.67 years you must get one month’s pay or percentage for each year of service = 4.67 months pay

Total indemnity = 7.55 months pay = 7.55 x KD 1,550 = KD 11,702.500 But as your service is less than 10 years you will get two-thirds of the above indemnity = KD 11,702.500 x 2/3 = KD 7,801.670

In reply to your second question, we would like to state that as you have worked such a long time for a private sector company you will not have any difficulty in transferring locally to another.

In other words you won’t have to leave the country and will be able to complete all the transactions easily. As a result, the residence of your family will not be affected and they will also not have to leave the country.

If their residencies expire you can get these renewed for the same duration as yours. As far as your third question is concerned, it all depends on your negotiations with the company. You should get the release papers finalized before your notice period is over so that there is no delay in joining the new company. The company, if it wishes, can also allow you to leave before the completion of the three-month notice period.

I have a question about dogs. Is there a law in Kuwait that prohibits dogs in parks? In other words, can I walk my dog in a park?

Name withheld

Answer: While there is no law in Kuwait which forbids dog owners from taking their pets to parks, most green public parks do not allow dogs entry. Not only that, dogs are not welcome to these parks by the general public. The rules, however, vary from park to park although “No” is generally the answer. Most dog owners feel not the public but their pets are in greater danger in these parks because a lot of young boys tend to throw stones. So, dog owners most of the time take their dogs to empty beaches (on a long leash) or to the desert where they allow their pets to run free. We would advise the same for you.

I am from the Philippines and am planning to get a visit visa for my aunt, my mother’s sister but I don’t know what I should do in order to get this visit visa. Please note that I have only a KD 275 salary. I want to know if it is possible to get for my aunt a family visa if the visit visa is not approved.

Name withheld
Answer: The Kuwait authorities are very strict these days in the issuance of visit visas and family visas. Having said that, it is possible for you to get a visit visa (for a month) for your aunt before the salary you mentioned is enough for the purpose as long as the same is mentioned on the work permit.

If the work permit mentions a salary less than KD 250 then your application will be straightaway rejected.

You must also have an apartment in your name. If this is the case you should submit an application for a visit visa to the Immigration Department in your area with the following documents :the photocopy of your aunt’s passport, copies of your Civil ID card and rental agreement, copy of the work permit and an affidavit (attested by your embassy and the Kuwait Foreign Ministry) showing your relation to the person you wish to call.

Please remember that if your visit visa application is rejected, you can’t apply for a family visa for your aunt because these are restricted nowadays only for the wife and children. You can’t even get a dependent residence for your parents these days unless you obtain a no-objection certificate from some high-level officials.

I stay in Salmiya, near the garden where there are many Indians. In my building, there are about 4 flats which are home to about 6 dogs. Those dogs dirty the lift very often. Despite the fact we have requested the owners to keep the lifts clean, they take dogs in the lift and that causes lot of nuisance to the occupants of the building. Not only this, the neighboring buildings also have dogs.

Early in the morning they dirty the entire parking lot. Here and there, we find the waste of the dogs and urine. It’s a real nuisance but the owners have become emboldened for there are many people nowadays keeping dogs in the vicinity. Kindly guide us which authority to contact. I have read that the environment police can also be contacted. Can they help us?

Name withheld
Answer: You shouldn’t have difficulty in getting rid of your problems. But before we go on we would like to clarify that three departments are involved in the issue of pets.

1. Public Authority for Agricultural Affairs and Fish Resources (PAAAFR) — this authority is responsible for issuance of licenses because pets can be kept without licenses

2. Police — this is the department which ensures that the pets do not pose a threat to anyone

3. Kuwait Municipality (Baladiya) — the Municipality ensures that the pet owners “control” their pets to stop them from dirtying the surroundings and also that the pets do not become a nuisance for all others in the area.

For you, we suggest that you first file a report with the police in the area if you feel threatened by the dogs. Secondly, report the case to Kuwait Municipality office in your area. These two departments will take care of the problem.

You can also call the main Kuwait Municipality office in Kuwait City: Tel nos 22449001, 22449002 and 22400012 but have someone who speaks Arabic on hand because you may face problems if you don’t speak the language.

You can also send an email to [email protected] or post a complaint on the Municipality’s website www.municipality.gov.kw

I am a regular reader of the Legal Clinic column, which helps us a lot. Would you please clarify the below issue.

I joined a company on June 1, 2004 and after three years they transferred to one of its own division and they also transferred my visa to that division but the owner remained the same. They paid 3 years indemnity at that point. There was no separate contract paper on the transfer. Until now I am working in the division to which I was transferred. If I resign now, will my starting date with the company — for calculation of indemnity — be June 1, 2004 or June 1, 2007. I am working still on my contract which I received on June 1, 2004 as both the divisions belong to the same owner

Name withheld
Answer: It all depends on how you were paid (as regards your indemnity) and what your contract says on the issue. As we do not have this information we may not be able to give you a very accurate answer but we will try to be as “close as possible”.

This is your contract says you will get your indemnity “according to the Kuwait Labor Law”. If your services have been continued under the same contract and the same sponsor then your indemnity should be calculated from the day you joined the firm, i.e. June 1, 2004 but the company after calculating the indemnity for the 11 years should minus the amount it paid to you.

The company can’t get away by calculating the indemnity from June1, 2007 if your service is continuous.On the other hand, if the division you were transferred to, is a total different and independent entity —regardless of the fact it has the same sponsor — then you will be deemed to have worked for two different companies and your indemnity should be calculated only for the period that you have been with your current firm, i.e. from June 1, 2007. Now we have detailed two separate situations for you. Use the one which is applicable to you.

Please also remember that your firm can’t give you less than what is mentioned in the Labor Law even if a lesser calculation is mentioned in your contract. In such a case the calculation must be made according to the Labor Law.

My inquiry is as follows: I am 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 = 260 KD).

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: We answered this question very recently but just in case you missed the Arab Times on that day, the answer to that question is being reproduced below for your information and that of our readers. “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 months 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 two-thirds 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.