Legal Clinic

I have the following query: My daughter’s passport expires in April 2016 whereas her Iqama (residence) expires in August 2017. I am the sponsor and my Iqama expires in June 2016. If I get a new passport for my daughter, will her Iqama be transferred to the new passport as it is valid up to August 2017 or will the duration of this residence be reduced according to the validity of my Iqama (which as mentioned above expires in June 2016)?

Name withheld

Answer: According to the new law, the validity of a dependent’s residence totally depends on the validity of the sponsor’s residence and every time you go to get a residence for your dependents or try to renew it, the first thing that will be checked is your residence. So, in your case, the validity of your daughter’s residence will be reduced according to the validity of your residence

Why is it that expats have to pay the price for the actions of bad sponsors? Why is my perception changing from feeling welcome 10 years ago to now feeling very unwelcome in Kuwait. For 7 years I worked in Saudi Arabia, putting up with having to seek permission, and another lost page in my passport, to be able to go out on leave.

Coming to Kuwait I thought how modern things were in this country compared to the Saudi way. Now Kuwait wants to take a step backwards by imposing the same law on seeking permission from the sponsor before leaving the country.

Name withheld

Answer: So far, the “law” on expatriates getting permission to leave the country is just a proposal and nothing more. Yes, such a “law” if ever implemented would be unwelcome by expatriates but we have to wait and see if it is really passed because it would face a lot of resistance from a number of quarters in the National Assembly and also various human rights groups in the country.

So, lets not jump ship before it hits troubled waters. By the way, such a thing would not be new to Kuwait. While the expatriates in the private sector have been immune to this “law”, those in the government ministries are — since many decades — required to obtain such a permission (it’s called “Ijaza”) from their ministries before they can leave the country.

One of my friends, who had been working for another ministry before transferring to the private section some years ago, recently got an offer from the Ministry of Defense and he has signed a contract which says no end of service gratuity.

He got his indemnity from the previous ministry when he left that institution. Can you please give me details of 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 a number of times but as a lot of people are in such a situation we will try to explain the same again.

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. The use of such contracts was started after the independence of Kuwait from the Iraqi occupation in 1991.

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.

We seek your advice on the calculation of the annual leave salary. An employee gets a basic salary of KD 400 plus monthly allowances like housing and transportation i.e. KD 40 + 30 + 20 respectively. In this case the employee’s monthly remuneration works out to be KD 490. So, what would be his salary for 30 days. Furthermore, while the employee is on leave, is he entitled to receive the full allowances of KD 90 in advance or upon his return from his annual vacation ?. And lastly we would appreciate if you give any reference to the clause or the article in the new Labor Law or point out any justification to support such payments.

Name withheld
Answer: The law clearly says that all calculations of an individual’s benefits i. e. indemnity, annual leave and overtime must be based on an employee’s “remuneration”, which means the total of the basic salary and all the allowances regularly paid to the individual. Having said that, on checking with the Ministry of Social Affairs and Labor’s Legal Department – to get a clarification on the issue – it was found that while all the three allowances were to be considered in the remuneration in the calculation of both the indemnity and overtime pay, the same was not the case with the annual leave salary, in which only the housing and living allowances were to be used…and not the transportation allowance.

The reasoning offered by the ministry for this was that the transportation allowance is paid to the individual for travelling to the office and while on leave as there is no such case while he is on his annual leave. So, while calculation the indemnity and overtime – in specifically the case you mentioned, KD 490 would be used as the basis but for the calculation of annual leave salary the calculations would be based on KD 470 ( after leaving aside the KD 20 for the transportation allowance).

As leave is for 30 working days the annual leave salary would be worked out as follows: Salary for calculation KD 470 This salary must be divided by 26 ( working days in a month) = KD 470 / 26 = KD 18. 076 As the annual leave is for 30 working days this figure must be multiplied by 30 = KD 18. 076 x 30 =KD 542. 280 So, KD 542.280 would be this individual’s annual leave salary specifically for the above case. Answering your other query, the law clearly states that the leave salary ( including the allowances ) must be paid to the individual before he proceeds on his vacation. In this connection, please refer to Article 71 of the Kuwait Labor Law enacted on Feb 20, 2010 which has only the following one line : “The worker shall be paid for his annual leave before taking such a leave”.

I rented a new apartment 3 months ago and signed a rental agreement. I stay in the apartment with my family. When I asked the building caretaker about the notice period, he indicated to me that a person has to give a one month notice… verbally. I signed the one page Arabic agreement which looked like a standard one and did not bother to read it. But now to my surprise I have found the following two clauses in the contract.

1. The period of the contract is one year

2. The owner has the right to request the tenant to leave the flat at the end of contract and the same action can be taken by the tenant.

Now I want to leave the apartment by giving a one month notice (by that time I will have completed 5 months stay in the building), but the caretaker tells me that I can’t leave before the completion of one year in the building. Please advise me what options I have. Is there any special department where the rental issues are handled.

Name withheld
Answer: This is the problem faced by most of the tenants … because they do not read the contract nor have the required clauses included and then when they face a problem, such as yours, they try to find solutions where there are none to be seen. Yes, yours is a standard contract and normally all that is required is a one month notice.

In most cases, this is not even mentioned in the contract and this aspect is normally communicated verbally, with even the onemonth notice given verbally. Everything is OK until the landlord tries to enforce the contract… ignoring all the verbal discussion. In such a case the tenant faces problems, in situations as yours, as the contract is loaded against him. In such an event the landlord will try to use the contract terms as leverage in any negotiation. Having said that, all is not lost. You should immediately approach the rents court in your area and file a case against the landlord. Please also deposit the rent with the court by the 20th of each month until the case is resolved.

Please also remember that you will have to prove in court the landlord committed to the tenants that they could vacate the flats with a one month notice. We are sure that the same commitment must have been made to the other tenants who can testify on your behalf. There must also be precedents in which other tenants must have allowed to vacate their flats on a onemonth notice. All this evidence will boost your case. While things seem difficult, all is not lost and you can easily win the case. Moreover, it is likely that the landlord, on hearing that you are filing a case, could accede to your wish.

I am living in Salmiya, Block 12. My building owner has sold the building to a new owner, a property rental company in Kuwait. They have started building two floors above my terrace. This has created a lot of nuisance for the tenants.

My contract for the flat is valid till March 2017 with a rent of KD 240. However, in December 2015, the owner’s mandoob (representative) came and handed all tenants a notice stating that all tenants must vacate their apartments on or before June 1, 2016 … i.e. a 6 months notice with free rent from March to June 2016. Given this, last week the mandoob came for a discussion with the tenants and gave an ultimatum to us to sign a new contract for KD 350 from September 2016.

Most of the tenants agreed that it was a decent solution but said they would sign the contract if there was any improvement in the buildings as the elevator was not working properly and the central air condition was terrible in the summer.

All tenants asked for some more time to think and discuss the proposal and pointed out that we had more than 3 months to tackle the issue. That night the owner and mandoob came and took away the water pump from the only tank available to the tenants.

These tenants are all very respected senior engineers, managers and accountants and building houses all families with children. It has been more than 4 days that we have been without water … and this a country like Kuwait.

Everyone now carries buckets to the municipality water tap, catches water and returns to use the same. Is this not inhumane? My neighbor complained to the police, who came and checked all the flats. Nothing has happened nor any action been taken over the last 2 days. What can be done… please. It is the almost unimaginable and inhumane behavior I have ever come across. I do not want to sign any contract with the owner nor do any of the tenants because of what he has done.

The tenants have proposed that we buy a water pump and connect it to the tank but the owner Kuwaiti has threatened to have it removed if the same is installed without his permission. I am a law abiding citizen and so are all the tenants, the police came and checked all the flats, everyone in the building has families and in positions of note… what I can do to get justice for this cruelty. This is typical ransom and torture to deprive people of water. And he has stressed he will next put the elevator out of service and cut the electricity.

Name withheld
Answer: The landlord is totally wrong in this regard and all of you can take the landlord to court. There are six things that you can do in this court, simultaneously to put pressure on the landlord.

1. The tenants — as a group — should file a case with police asking it to stop taking all these actions which are harmful for you and your families.

2. File a case with the rental court, quoting all the illegal actions the landlord is taking to evict you all. Also immediately stop paying the rent and deposit the same with the Rents Court in your area.

3. File a complaint with Kuwait Municipality over the cutting of the water supplies and other steps being taken by the landlord as these threaten your health and that of your families.

4. File a case at the Palace of Justice and seek damages from the landlord for the illegal action he has taken as this not only threatens the health of your families but is also a violation of the contracts signed with the previous owner of the building. Please remember that all liabilities of a landlord are transferred to the next one whenever a building is sold.

5. Draw the attention of the Human Rights Committee at the Kuwait National Assembly to the situation.

6. And lastly have the problems of the tenants published in the daily papers. This will draw the attention of the various concerned ministry officials to the illegal actions of the landlord.

Please remember the landlord cannot cut the water or electricity supplies nor stop the use of the elevator. All these are illegal actions for which the landlord could run into legal problems.

I had filed a case against my employer which happens to be a private limited company for non-payment of indemnity, which was due to me when I resigned.

By Allah’s grace and thanks to my lawyer’s efforts, I got the judgement in my favor wherein the company had to pay me my 9 years of service indemnity and accrued leave balances.

However, by the time I received the court’s judgement, the company had shut down with all its assets sold. I gather that since this is a private limited company, the liability of this company is limited only to the company and not to the owners or shareholders.

Incidentally, the manager of this company also happens to be the owner as well and the company file is still active in the Chamber of Commerce.

I am led to believe that the company now does not hold any account with any bank for us to recover the indemnity. I have won the case but I still feel I have lost as I cannot recover my right. May I ask the Legal Clinic to provide me any solution, if any?

Name withheld
Answer: To answer your question we must take a close look at Article 50 of the Kuwait Labor Law for the Private sector which was enacted on Feb 20, 2010.

The work contract shall expire in the following cases:

a) Issuance of a final court judgment that declares the bankruptcy of the employer.

b) The final closure of the firm.

However, if the firm is sold or merged in another firm or if it is transferred by the means of inheritance, donation or any other legal action, the work contract shall be effective on the successors under the same conditions mentioned therein.

The rights and obligations of the previous employer towards the laborers shall be transferred to the employer who replaces him.

So, you can see that the people or company which bought the assets of the firm inherit the liability of paying the dues or benefits of all the employees regardless of the fact your company was a private limited company or otherwise. So, file a case with the Labor Office in your area against both the current owners of the company’s assets and the previous owners of the company. There is only one solution to this case – you will get your dues.

I just want to inquire about my visa… I’m working with a new company now but the problem is this new company can’t transfer my visa to their sponsorship because (according to them) my current visa is a factory visa and it cannot be transferred to a project visa. Is there any such rule? Is there any chance or way to transfer my residence to a project visa fast easily? Can the new company get an extension to my current residence to buy some time?

My visa will expire this coming March and with it my family visas and I am planning to renew them before my visa expires … can I do that?. Will it not affect their renewal as per the new law? For my previous employer I worked for almost 3 years (2 years and 9 months to be exact) … can I get indemnity for that service?

Name withheld

Answer: We have never heard of any such thing as you mention because there is no ban on the transfer of any company visa to a government project visa, although in Kuwait laws change very fast and sometimes in such circumstances these are not even communicated to the public or the press.

In spite of the above, we are so far sure that a step has not been initiated. Ask your company mandoub (company representative) to check with the Manpower Authority or the Ministry of Social Affairs and Labor.

Just before your residence expires your company can get you an Article 14 residence (temporary residence) for one month at a time and a maximum of three months.

You can also get temporary residence for your family to give them some legal cover so that their stay in the country is not illegal. But you will face problems in getting the renewal of your family’s residence if your residence expires because under the current law the residence of your family will be tied to yours.

The law has become so strict that if your residence is about to expire, the residence of your family will not be extended.

When your residence is extended, your family’s residence will expire at exactly the same time as your, not a day more.

So, get your residence renewed as fast as possible. And talking about getting of indemnity, please remember that to be eligible for the end of service benefits (if you resign) you must have at least three years service and not a day less.

But in your case you have not mentioned whether you resigned or your services were terminated. If you resigned with less than three years service you will get nothing but if your services were terminated you will be entitled to the full indemnity regardless of the period of service.

First of all, I would like to thank you and also praise you for your tireless efforts for providing important information and answering questions on the legal issues in Kuwait.

One of my friend has been working in a private company in Kuwait since 2008.

Almost every year he goes on annual leave and returns back on time and has never asked for extension during leave since the time he joined the company.

This time things took a slightly different turn… He had 27 days of annual leave balance and company management approved his leave without any objection. He went on vacation and due to some serious family issues he was not able to resume his duty on time since he had to stay almost 10 extra days in his country.

Upon asking for extension of 10 days without pay, his request for extension was rejected by company management. Even his request for extension was rejected although he needed take these 10 extra days due to a family issue.

As per Kuwait Labor Law what are the possibilities to tackle this situation and what kind of legal action company can take against him and how many days he can stay more in his country even if his request for extension is not approved.

Name withheld
Answer: According to the Kuwait Labor Law, if you are absent from work for seven consecutive days or 20 non-consecutive days without an “acceptable” reason in a single year you can be terminated from work. Barring an emergency, for which you need to provide proof, not returning from leave in time – especially after any request for extension in leave has been rejected – is reason enough to legally dismiss you. But in such a case your dismissal must be treated as a resignation with all your benefits, mentioned in Article 53, to be given to you.

This means you will also have a three month notice period and be paid for the same. This is the extreme measure that the company can take although it could – if it so desires – just deduct pay for the days of absence or even fine you a certain amount.

If a person is denied extension of leave, he has to report back for work on expiry of his leave otherwise he will be deemed to be “absent” from work, even if this absence is for one day.

I have a query regarding the validity of Kuwait driving license. It was issued in 2011 and I left Kuwait for 2 years. I came back on another visa but with the same Civil ID number. The validity of my license shows the year 2021. Will it be a problem for me to drive with the same driving license? Or should I go and inquire from the Traffic Department.

Name withheld

Answer: Please remember that your license expires automatically when your residence is cancelled. This has always been the case for decades, even before the new law linking the validity of a driving license to the residence was enacted. As your previous residence had expired, so had your license. Now you can’t drive on that license and must approach the Kuwait Traffic Department for renewal of the previous license. Please remember that Kuwait is very strict on the issue these days and if you are caught driving on the old license you will deemed to be “driving without a license and could face very strict action … even deportation. So, don’t drive in Kuwait until you get the previous license renewed.”