Part 2 – An Employee Under Probation More Than Once
Abdul Kashif (not his real name), a Filipino Muslim, was hired as a sales coordinator in a manufacturing firm located in the First Industrial City in Dammam, Saudi Arabia but was made to work as a Canadian in citizenship. Worse is, he was evaluated as a sales coordinator and the evaluation was made a year or so after his three months probation had expired. by his boss, Farid Moo Barrack (not his real name), a Syrian by blood but a
Farid – in an email, not through the prescribed written evaluation tool — reported to HR that Abdul failed to measure up to his (I don’t know if it is the company’s) standard despite giving him several verbal reminders regarding his poor performance and that he was considered terminated from work.
Based on this report, the HR Supervisor instructed the HR Specialist to prepare a Termination Notice to be served to Abdul at once. Sensing that it was legally implausible, the HR Specialist recommended to the HR Manager for his transfer instead to another business unit/division/department where he would be able to “prove his worth,” he being a master’s degree holder engaged in somehow cognitive activities, such as, among others, short filmmaking and audio-video programming. He was, yes, transferred to the Procurement Section but was again placed under three months probation. Prior to his transfer, his assent was sought.
Q: Was it proper for Farid to make Abdul work as a sales representative though he was hired as a sales coordinator?
A: No, definitely not. As Abdul did not complain about it even after the completion of his probation, he is presumed to have agreed in principle ab initio to work as a sales representative instead of as a sales coordinator. This then lent credence to the fact that he enjoyed his job as a sales representative and thus lost his right to complain, and this is despite the fact that Article 96 (a) of the Saudi Labor Law specifically states, thus: “A workman [referring to an employee regardless of his rank and position] shall perform the work required of him pursuant to labor contract under the employee’s control and direction and in accordance with his instructions, if such instructions involve no inconsistency with the contract, with the Law, or with public morals and if obeying such instructions does not expose the workman to danger.”
Q. Was the evaluation made properly?
A. No, definitely not. He was supposed to be evaluated as a sales representative. Aside from this, the evaluation was supposed to be made immediately after the completion of his probation. At any rate, he was deemed a regular employee after serving three months even without receiving a notice to that effect.
Q. Hypothetically, if only Abdul was terminated because of poor performance, would his termination be considered illegal?
A. Not necessarily. His boss Farid claimed Abdul has had a poor performance, saying he has not measured up to his standard. The onus of proof rests with Farid, though, and this must be through thorough documentation. Verbal reminders, especially if not documented, are not enough. These do not hold water in court.
It should be worth noting, however, that Farid’s decision can be so unfair to Abdul who could have had a better performance as a sales coordinator (for which he applied) than as a sales representative.
Q. Was Abdul’s transfer illegal?
A. No, because he agreed to the transfer.
Q. Was placing Abdul under another three months probation ?
A. Yes, because Article 71 of the Saudi Labor Law clearly states that an employee shall not be employed under probation more than once by one employer. This article cannot be construed otherwise, like in a case of a transfer of an employee to another business unit/division/department with another position. This is based on the legal maxim, “expressio unius, inclusion alterius (the expression of one thing is the exclusion of another.”
Part 3 will be up soon.
- The Sorry Plights of OFWs in Saudi Arabia (oflifeandtheliving.wordpress.com)
- U.N. report: Saudi has the world?s largest number of mobile phone users (textually.org)
- World Briefing | Middle East: Saudi Arabia: Year After Protest, Six Suspects Remain in Jail, a Rights Group Says (nytimes.com)
- Rachael Rudolph says she feels at home in Saudi Arabia, just like in the United States (fauxcapitalist.com)
- Saudi Arabia’s repression against its citizens and Sectarianism will change the Shape of the Region in Near Future (jafrianews.com)
- Saudi Arabia To Enforce Gender-Specific Labor Laws (pinkbananaworld.com)