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Times
of Oman, in association with Khalifa Al Hinai Legal Consultants, will answer the
legal queries of readers every Monday. Questions can be sent to
readersclub@timesofoman.com
( Disclaimer: Opinions expressed in this column are for general
guidance purposes only. They are based on facts presented to us and are not
substituted for expert legal advice. Readers are advised to seek legal
assistance for specific legal issues. Times of Oman and Khalifa Al Hinai
Advocates & Legal Consultancy do not assume any responsibility towards anyone
on this matter. )
Courtesy:
Times of Oman. Largest and most
popular English newspaper in Oman
I work with a reputed engineering company and my wife works at a
reputed international school. Recently, I received termination letter from my
employer giving me one month's notice. If the company refuses to give me an NOC,
or if I can't find a job, will it be possible to transfer my residency to my
wife's sponsor and later transfer it to another professional sponsor?
Family visa for husband is not a common practice in Oman and the
same is granted only under special circumstances at the discretion of the
authorities. Therefore, if you are unable to get an NOC from your present
employer, it would be difficult for you to enter Oman for the next two years.
Please explain your situation to the employer and request for a consideration on
humanitarian grounds. Your employer will not lose anything if you are granted a
NOC to re-enter Oman.
---------------
If an employee has worked for the initial employer for two full
years (say, February 1, 2012 to February 1, 2015), and has now entered into
their third year, would they still need an NOC from the first employer to work
for another employer? If the answer to this question is 'yes', would the first
employer have to agree to the transfer? In other words, would the first employer
still play an important role? Are allowances made for 'difficult' employers? I
have heard that sometimes employers agree to a transfer, and then the employee
doesn't have to officially leave Oman. Is this correct? What does it really
entail? Who can do that: only ministries? Do foreigners married to Omanis get a
residence permit based on their marriage or will they always need a kafeel (arbab)
or employer to sponsor them no matter what? If the people mentioned in the
above will be allowed to stay in Oman based solely on employment reasons (and
not for the sake of the unity of the family), will the authorities be more
flexible with certain immigration laws in their case or not at all (or only if
and when they 'feel like' it)?
The question of NOC has been answered several times on this columns and we are
surprised that despite several clarifications we are getting repeated queries on
the subject in a regular manner. We wish to clarify as follows: Any employee
leaving Oman at any time (whether on the second day or after completion of two
years) would require a no objection letter from the previous employer, if he or
she, has to re-enter Oman on another visa. This is applicable to all categories
of visa including tourist, employment, family joining or investor.
Not a right per se
No objection certificate is not a right per se and it is within the
discretionary powers of the employer. No court of law or ministry can persuade
or coerce an employer to issue a no objection letter to any of his/her
employees.
Transfer of sponsorship can be made in Oman if an employer is willing to
transfer his/her employee to another sponsor with similar activities. However,
both sponsors shall have identical activities and an engineer cannot be
transferred to a hospital and a doctor cannot be transferred to a construction
company on engineer visa. The same rule will be applicable to all other
professions and vocations. The employer who transfers the employee to the new
sponsor would lose the clearance of the transferred employee and the Ministry
will not issue a replacement for this clearance.
Those who have Omani spouse (husband or wife) may get some consideration on
humanitarian grounds (especially if there are children from the marriage), but
this is again a matter to be decided at the discretion of the authorities (based
on circumstances).
Some of our employees wish to reimburse their leave salary
immediately after completing 11 months of service, even before going on their
annual leave. Please advise whether it is permitted and if so, is it after the
completion of 11 months or 12 months? We would also like to know whether the
paid leave with return ticket is to be provided to the employees after the
completion of 12 months or 24 months? Does the company have the right to reject
the interim leave applications of their employees after 12 months or 24 months?
Leave entitlement and air passage are issues to be agreed between
the employer and the employee prior to commencement of their relationship. There
is no hard and fast rule for this and the employer may decide whether to grant
leave after 11 months or 12 months. Article (61) of Oman labour law only states
that the employee would be eligible for certain days of annual leave on
completion of one year's continuous service. Regarding air passage, the law only
states that the employer is obliged and duty bound to repatriate an expatriate
employee on completion of his/her employment. Some provisions that made it
mandatory for air passage were there in the previous version of Oman labour law
but were subsequently removed mainly due to the fact that provisions like annual
air passage are not applicable to Omani employees.
The provisions of the labour law are only for general guidance
and nothing prevents an employer from offering anything better than what is
stipulated under the Law to the employees. Article (6) of the labour law reads:
"The employer may establish schemes from which his/her employees may get
advantages which are more beneficial than what is prescribed (by law) or provide
them with other benefits, or enter into agreements with them, the terms of which
are more beneficial than the terms provided for in this law."
It is the prerogative of the employer to decide whether the right
to annual ticket can be encashed or whether leave can be granted annually or
once in two years. However, in a competitive market where it is getting
increasingly difficult to retain performing employees, any prudent employer will
evolve schemes and programmes that would ensure the loyalty of the employees in
the long run.
I have been working with an MNC in Oman for the past eight
months. I am on a two-year company visa and despite constant reminders to the
country manager, they have not provided me any contract to sign. I had only
signed an offer letter before coming to Oman. Am I eligible to take annual leave
after completion of my one year along with the extra benefits provided by the
company like salaries/bonus. The company has not provided me any medical or
insurance card as yet. The entire staff's passport, including my own, has had to
be deposited with the company, without giving a valid reason to keep it with
them. The company is not paying for overtime and they deposit salary on 10th or
15th of every month. The company administration/finance officer cuts salaries
of employees according to his personal whims without informing or issuing any
warning letter. The company is also having serious issues with its source
venders with regards to their monthly payments and bills. Some of them have gone
to the labour court and their cases are in progress. Some employees have asked
for NOC but the country manager and other management staff have threatened to
put them on the absconding list if they leave the company or ask for an NOC.
Please advise.
In the absence of a formal contract, your offer letter will have
the effect of a contract between you and the employer. The absence of a written
contract will not jeopardise any of your rights as laid down under the Oman
Labour Law. However, in the absence of a contract, you will not be in a position
to claim anything over and above that are provided for in the Labour Law. The
standards set in the Labour Law are only indicative and a minimum threshold
limit and the employer is free to offer anything above that (not below that) to
the employee.
Since you do not have a contract, your leave benefits will be as
provided for in Oman Labour Law and you will entitled to such benefits as per
the provisions of the Law. Though it is not mandatory for the employer to
provide medical insurance to the employees, the onus of providing medical
facilities for the employees is on the employer. So, you will be entitled to all
medical benefits in case you are ill while working in Oman.
If you have any grievances against the employer, the only option
is to approach the Ministry of Manpower and there is no established route other
than this.
I left Oman after cancelling my employment visa in December
2014. Now, I need to re-enter Oman to collect my daughter's transfer certificate
from Indian School Seeb. I have UAE resident visa stamped on my passport. Will I
be able to enter Oman by road? Do I need an NOC from the previous sponsor to
enter Oman? I came to know that to reenter Oman we need an NOC from the previous
sponsor. But I am not able to get an NOC from the previous sponsor. What should
I do?
It is not yet clear how the re-entry ban would be applied in
cases of persons holding resident visas of GCC countries. At the face of it, it
would appear that the ban would be applied to everyone irrespective of his/her
resident status. In your case, there is no need for you to be present physically
in Oman to obtain the transfer certificate of your child. You can issue a power
of attorney (duly legalised) in favour of any friend or relative in Oman and
he/she would be able to do the follow up with the Indian School Seeb to obtain
the transfer certificate.
Kindly explain the rules for an emergency leave as per the
provisions of Oman Labour Law. How many days in a year can one take an emergency
leave? At a time how many days of emergency leave can be taken? I believe it's
three days but my colleagues inform me that it's not more than two days at a
time for any emergency/exigencies. Can a casual leave be termed as an emergency
leave? Is there anything called casual leave under Oman Labour Law? In many
other countries there is provision of casual leave, through which one is allowed
to attend any personal work not in the nature of an emergency. In a year, a
maximum six casual leaves can be taken and at a time only one day's casual off
is allowed. Is there anything like this in Oman Labour law? Can casual leave be
accumulated?
There is nothing called casual leave under the Oman Labour Law
and there is no such system prevalent in Oman. Article (61) of Oman Labour Law
stipulates that the employee will be entitled to paid emergency leave for a
period of four days during a year to meet any unforeseen circumstances that
occur, but the same shall not exceed two days at a time.
The Labour Law also cites six other instances of special paid
leave as follows: 1. Three days for marriage (only once during the service
period) 2. Three days in case of death of first degree relatives including
spouse, parents, brothers, sisters, son or daughter 3. Two days in case of death
of uncle or aunt 4. Fifteen days for Hajj (for those who have completed one year
of service) 5. Fifteen days in a year for examinations, if any 6. 130 days for a
Muslim wife in the event of her husband's death. In addition to this sick leaves
will be granted subject to the provisions of Article (66) of the Law.
Will the absence of written contract jeopardise any legal rights
in Oman? Legal expert answers
I have been working with an MNC in Oman for the past eight months. I am
on a two-year company visa and despite constant reminders to the country
manager, they have not provided me any contract to sign. I had only signed an
offer letter before coming to Oman. Am I eligible to take annual leave after
completion of my one year along with the extra benefits provided by the company
like salaries/bonus. The company has not provided me any medical or insurance
card as yet. The entire staff's passport, including my own, has had to be
deposited with the company, without giving a valid reason to keep it with them.
The company is not paying for overtime and they deposit salary on 10th or 15th
of every month. The company administration/finance officer cuts salaries of
employees according to his personal whims without informing or issuing any
warning letter. The company is also having serious issues with its source
venders with regards to their monthly payments and bills. Some of them have gone
to the labour court and their cases are in progress. Some employees have asked
for NOC but the country manager and other management staff have threatened to
put them on the absconding list if they leave the company or ask for an NOC.
Please advise.
In the absence of a formal contract, your
offer letter will have the effect of a contract between you and the employer.
The absence of a written contract will not jeopardise any of your rights as laid
down under the Oman Labour Law. However, in the absence of a contract, you will
not be in a position to claim anything over and above that are provided for in
the Labour Law. The standards set in the Labour Law are only indicative and a
minimum threshold limit and the employer is free to offer anything above that
(not below that) to the employee.
Since you do not have a contract, your leave benefits will be as provided
for in Oman Labour Law and you will entitled to such benefits as per the
provisions of the Law. Though it is not mandatory for the employer to provide
medical insurance to the employees, the onus of providing medical facilities for
the employees is on the employer. So, you will be entitled to all medical
benefits in case you are ill while working in Oman.
If you have any grievances against the employer, the only option is to
approach the Ministry of Manpower and there is no established route other than
this.
---------------------------
-----------------
My wife is working with a private school as a foreign language
teacher and she is out of country for the last four months. As she cannot fly
back due to doctor's advice, we fear her visa may get cancelled after 180 days
of her departure. The school management is ready to give her NOC to change her
visa to my company's family visa. Is it possible to change the visa in her
absence if we bring her passport and residence card here and get the new visa
stamped and residence card changed, so that she can fly back to her home country
later without any issues?
Since your wife is out of the country and if she exceeds her stay
beyond the permitted 180 days, she will lose her resident status and will not be
able to re-enter the country on the same visa. Please note that even after the
expiry of 180 days, her visa will remain valid in the official records
(computer) and this needs to be cancelled and removed by the authorities. Please
request your wife's employer to approach the Manpower and Immigration
authorities to physically cancel the visa and resident permit from the records.
You may also surrender the resident card to the employer for
submission to the concerned authorities.
Once this procedure is done, you may apply for a family joining
visa for your wife. There is no need for her to be in Oman to carry out these
procedures. You can apply for family visa even without a no-objection letter
from your wife's employer as NOC is mandatory only for change of employment
visas and not for other type of visas (visit, family joining, investor etc.)
-------------
I am working at a school in Oman. The authorities of the school
are not giving me HRA and other allowances. They have told me that I am not
eligible for HRA since my husband is getting HRA, though he is working in
another company. Is there any rule in Oman about women not getting HRA? All the
others teachers are getting this allowance.
Benefits and emoluments will be calculated on the basis of your
contract with the employer. Some of the community schools in Oman do not provide
accommodation and air passage benefits to their lady teachers and this forms
part of their general recruitment policy. Once you have agreed to it, you cannot
challenge it at a later date. However, you may negotiate with your employer
before the commencement of another contract
My question is regarding customer rights. I purchased diamond
jewellery during a promotion campaign, where the jeweller was offering 50%
discount. After purchasing it I took it to another shop for evaluation and was
surprised to know that its market value was more than 70% less. I had purchased
it about for about OMR850 and it was evaluated at about OMR200. Isn't this
cheating that they offer a 50% discount but the original price is not more than
20%? Does the law protect customers in such situations?
If you have any doubt about the quality and value of the item
purchased by you, you can approach the Public Authority for Consumer Rights (PACA).
The diamonds normally come with test certificates for purity and quality and you
may request the same from your seller.
-------------
I have been working in Oman for more than 10 years with the same
company, and have been living here along with my wife and two children, who are
on dependent visa. Now I have resigned from this company and am joining another
employer in Oman. My current employer has agreed to issue NOC to enable transfer
of employment within the country. I will be exiting the country soon to cancel
the visa to enable the new employer to apply for new visa for me. In this
context, my query is, while exiting the country do my family members have to
accompany me to my homeland? Or can they stay back in Oman and once I return
under new employment transfer the dependent visa to the new employer. Further,
my marriage certificate is not attested; however, both of our passports has
spouse name mentioned. Would the authorities ask for attestation of marriage
certificate while applying for dependent visa under new employment?
If your previous employer has no objection to your dependants
remaining in the country even after your exit from Oman, you can conveniently
transfer their visas to the new sponsor after you re-enter the country under a
new sponsor. The cancellation of your visa does not automatically invalidate the
resident status of your dependants and they are free to remain in the country
until the expiry of their visas as long as there is no objection from the
existing sponsor. While transferring the visa of your dependants you may be
directed to comply with all procedures as required by law and a duly attested
copy of marriage certificate (and birth certificates of kids) may be one of the
prerequisites in such situations.
-----------
I have been trying to get an NOC from my current employer without
much success. I then came across an alternative, which is, to leave the country
and have my visa cancelled. My current work visa will expire in September. I
have resigned from my current service, after completing a two year contract, and
wish to join my new employer as soon as possible. What can I do if my employer
does not cancel my visa? According to Article 56 of the Labour law, there is
provision for expatriates who wants to have their visa cancelled even when the
employer declines to do so. May I know what necessary steps I should take?
The option of repatriation of an expatriate employee by the
Government (as envisaged under Article 56 of the Labour Law) is not an easy
option and not a universal panacea. It can be opted and exercised in special
circumstances and not as an everyday solution for everyone.
If you have any grievances against your employer, you should
approach the Ministry of Manpower and follow the procedures and patiently wait
for the outcome. You may also note that NOC or release is not a right per se and
no authority in the country can force an employer to issue NOC or release for
any of
the employees.
I am an expatriate working in Muscat since August 2013. My employer has asked me
to quit within 10 days and is giving me one month's salary and return ticket.
When I asked my Group HR manager the reason, he did not clearly state the
reason. Earlier, I was working with a different company of the same group and
worked as secretary to the CEO. They asked me to resign and I requested for two
months' time with salary to which they agreed. I approached the group's chairman
who is the owner of the company and he gave me a chance to join a different
company within the group. Now, they have issued me a fresh appointment letter
which states that I am in the probation period.
If you feel your termination is without sufficient and
justifiable reasons and arbitrary, you can challenge the termination through the
appropriate forum in the Ministry of Manpower. Such application challenging the
dismissal shall be filed within 15 days from the date of receiving the
termination letter. The ministry may direct the employer to reinstate you and
if the employer fails to comply with the instructions of the ministry, the
employee will be entitled to compensation for unjustifiable termination. This
will be a minimum of three months' salary and shall not exceed one year's salary
under any circumstances.
If you are firm in your conviction that the employer is using the
termination exercise periodically to deprive you of some legitimate benefits
that you are entitled to, you may approach the ministry for redressing your
grievances.
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