Ask the Law: Can employer deny maternity leave if it is not provided for in labour contract?

Maternity leave

Question: I have been working in a private company for two months. In two months from now, I will be applying for maternity leave. During my appointment, I had signed a job offer letter, stating that I would not be legally entitled to a paid maternity leave. My question is, according to the new Labour Law, will the job offer letter that I had signed be treated as void? And if that is so, then do I have the right to request for paid maternity leave? Also, what is the duration of such leave?

Answer: You are definitely entitled to a paid maternity leave. Any condition that contradicts the provisions of this Decree Law, even if it was prior to its enforcement, shall be considered null and void. Also, any release, reconciliation or waiver arising under this decree shall be treated as null and void by law, if it is in violation of its provisions. According to Article 30 of the Federal Decree Law No 33 of 2021 on the regulation of labour relations, a female worker is entitled to maternity leave of 60 days under the following conditions:

• The first 45 days with full pay.

• The next 15 days with half pay.

After exhausting the paid maternity leave, a female worker may stop working without pay for a period not exceeding 45 days — continuous or intermittent — if this leave is due to a disease that afflicted her or her child resulting from pregnancy or childbirth and if she is unable to return to work and provided the disease is authenticated by a medical certificate issued by a competent medical authority.

The female worker is entitled to the maternity leave mentioned in Clause No (1) of this Article, if the delivery took place after six months or more of pregnancy, whether it was a stillborn birth or whether the baby was born alive but died thereafter.

• The employer shall have to grant maternity leave whenever the female worker requests for it, at any time starting from the last day of the month immediately preceding the month in which the delivery is expected, and this has to be authenticated by a certificate from the medical authority.

Obtaining maternity or interruption leave referred to in this article does not prejudice the worker’s right to obtain maternity leave on other vacations.

• If a working woman works for another employer during the period of her leave authorised under this article, then the employer may deprive her of her wages for the period of the leave or ask for a refund of the wages paid to her.

• The employer is not allowed to terminate the worker’s service or warn her because of her pregnancy or for obtaining maternity leave, in accordance with the provisions of this article.

After returning from maternity leave, the female worker is entitled to — for a period not exceeding six months from the date of delivery — one or two more rest periods per day to breast-feed her child, provided that such break from work does not exceed an hour.

Being pressurised to resign

Question: I have been working in a private company for two years as a manager, according to the Memorandum of Association (MOA) approved by the government authorities. Currently, the partners in the company are asking me to submit my resignation. Do they have the right to legally compel me to submit my resignation? In the event that I resign from the company and the partners refuse to pay my salaries and dues, how can I seek legal redressal? Please advise.

Answer: First of all, the partners in the company cannot force you to submit your resignation. However, they do have the right to dismiss you by a decision from the General Assembly or by a court judgement upon their request, but for that, they will have to furnish justifiable reasons to the court to get the dismissal decision. Article (85) of Federal Law Decree No (32) of 2021 On Commercial Companies provides that: Unless the company’s MOA or manager’s appointment contract states otherwise, a manager may be dismissed by a decision of the General Assembly, whether he or she is a partner or not. He or she may also be dismissed by a court judgement upon request from one partner or more in the company, if the court sees that the reasons for dismissal are lawfully justifiable.

Secondly, the manager may submit his or her written resignation to the General Assembly, provided that a copy thereof is served to the competent authority and the General Assembly shall decide on such resignation within 40 days as from its submission date. Otherwise, it shall be deemed effective as from the expiry of such period, unless otherwise provided in the company’s MOA or in the manager’s appointment contract.

In a nutshell, the company will have to notify the competent authority about the termination of the manager’s service within no longer than 30 days from the date of termination of service and shall appoint another manager during such period.

With regard to settlement of terminal dues, you have to file a case either in the Labour Courts, if you were appointed on the basis of a labour contract linked to it and in return for a wage. Alternatively, you need to file a case in the Civil Courts if your relationship with the company is a relationship based on partnership and management in the manner stipulated in its MOA — not a working relationship based on a labour contract. Your dues also need to be calculated according to the partnership agreement.