By Nizar Kochery/Doha
QUESTION: In my employment contract, the annual leave is given as 45 days and the notice for termination is three months. But the company has been extending me only 30 days of leave. I have just been terminated but the company gave me only 30 days of notice. referring to the provision in the Labour Law. Am I not eligible for three months’ notice as per the contract? Also, was I not entitled for 45 days of leave a year during my service?
AQ, Doha
ANSWER: As per law, any condition contrary to the provisions of the Labour Law, even if was made prior to its commencement, shall be null and void unless it is more beneficial to the employee. The employee’s rights given under the Labour Law is part of public policy.
Matters of public policy are not matters which can be waived or conciliated. Therefore a labour contract may grant an employee more rights than the ones provided by law; however, an employee may not waive his rights under the law as this waiver would be contrary to public policy.
Accordingly, the employee will be entitled for three months payment in lieu of notice based on a clause in the employee’s contract which granted the employee more benefits than the Labour Law.
On the other hand, an employee’s agreement to clauses in a labour contract which lessens his rights as compared to the basic rights in the Labour Law is seen as waiver and is invalid.
Supervisory council
Q: We are partners in a company registered with the Commerce Ministry for educational activities. The number of partners exceeds 25. Managers are appointed in the CR. All members interfere in the day-to-day activities and create a lot of unpleasant situation. How do we tackle this legally?
DR, Doha
A: As per Commercial Company Law of Qatar, a partner who is not a manager in a company that does not have a supervisory council may offer advice to the managers, demand to review the activities of the company at its place of business and inspect its books and documents.
Any condition providing otherwise shall be void. However, Article 244 provides constitution of Supervisory council when number of partners exceeds 20. The company’s memorandum and Articles of Association shall appoint of a supervisory council to be comprised of at least three partners for a specific period. The general assembly may reappoint the council after the expiry of such period or appoint other partners or dismiss them.
The supervisory council shall have the right to inspect the company books and documents etc. and may ask the managers to present a report on their management.
Supervisory council members shall not be responsible for the activities of the mangers unless they are aware of their mistakes and fail to report these in their report submitted to the partners General Assembly.
Restraint of profession
Q: I have been working with a company under a contract for three years’ duration. But the company is asking me to sign a new contract for another term, with a reduction in my salary. When a contract is renewed how is the period of service calculated? Will that be a new term of contract? The company is ready to offer release for sponsorship change but they ask me to sign not to take up a design job. I could have any other job. But I am a graphic designer by profession.
PD, Doha
A: As per Law, when a contract of service is renewed, the period of renewal shall be considered as extension of the previous period. The service of the worker shall be considered as started from the date of first engagement for calculation of benefits.
Agreement in restraint of profession is void. According to Article 43 of the Labour Laws, if the nature of the work allows the worker to know the clients of the employer or the secrets of the business of the establishment, the employer may stipulate that the worker shall not compete with him or participate in any undertaking competing with him after expiry of the contract.
Such stipulation shall be valid only if it is restricted as to its duration and place and to type of the work to the extent necessary for the protection of the legitimate interests of the employer. The period of such undertaking shall not exceed two years.
Invocation of prescription
Q: A case was filed against us in Qatar. The case was time barred and we didn’t attend the case. Now the judgment is issued and what are the chances to get the case dismissed? Will it be possible to defend in appeal on the lapse of time? Earlier the same case was filed in the UAE and the court dismissed the case because of the issue of Qatar business matter.
SM, Doha
A: According to Article 417 of the civil laws, the court of its own initiative cannot invoke prescription. Prescription must be invoked by the debtor, or by his creditors, or by any interested party, even if the debtor has failed to do so. However, the prescription may be invoked at any stage of the proceedings, even before the Court of Appeal.
Prescription is interrupted by legal proceedings even if instituted in a court without jurisdiction, by a summons or by an attachment, by the application of a creditor for the admission of his claim in a bankruptcy or in a distribution, or by any act of a creditor to claim his right in the course of legal proceedings.
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LEGAL SYSTEM IN QATAR
Under Article 5, bank transactions, the business of money exchange ?rms, financial exchanges, investment and ?nancing; commercial agency and brokerage; supply contracts; public depositories and pledges arranged on property deposited in them; extractive operations for resources of natural wealth, such as mines, oil, gas and others; insurance of all types; business and activities in places prepared for the public, such as public sports places, cinemas, hotels, restaurants and premises for sale by auction; business and activities of places of education and private hospitals; concessions of public utilities, such as the distribution of water, electricity, gas and the provision of postal, telegram and telephone communications and so on; transportation on land, sea and air; the business of maintenance, cleaning and other commercial services; Business agencies, tourism of?ces, exportation, importation, customs clearance and employment of foreign workers; works related to printing, publishing, the press, radio, television, the carrying of news or pictures, advertisements and the sale of books; Industry, even if related to agricultural investments, and contracting for erections and manufacture; works related to contracting for construction, structures, repairs and demolition shall be considered commercial acts irrespective of the capacity or intention of the person performing the same.
All business activities related to sea and air navigation are considered to be commercial work by Article 6.
Accordingly the construction of ships or aircraft, their sale, purchase, letting, leasing and repair; lending and borrowing; contracts related to the employment of a ship’s master and sailors, and an aircraft captain and crew, and other personnel onboard ships and aircraft; sea and air transportation and all operations related to this, such as the purchase or sale of their requirements for supplies, equipment, stores, fuel, ropes, sails, provisions and materials for the provisioning of aircraft; and marine and air insurance of all types are commercial work.
In short all acts relating to commercial transactions specified above or facilitating the same and all acts performed by the trader for the need of his business shall also be considered as commercial acts.
Fundamentally the contracts and obligations of a trader are commercial except when it is proved that such contracts and obligation pertain to civil transactions.
