“Sometimes a law is just on its face and unjust in its application.” — Martin Luther King, Jr.
Today I am posting Part 4 as the concluding part of the series. Dealing with the situations of the Overseas Filipino Workers (OFWs) in Saudi Arabia similar to those cited in Parts 1 to 3 of the series, Part 4 is being highlighted by the Q&A that is basically aimed at making my views and opinions on their situations understood by the reading public.
However, I will, even after this month, continue to post articles about the life of the OFWs in the Kingdom. This is based upon my personal belief that as a Filipino HR practitioner, I have the obligation to share with you — and my fellow OFWs, in particular — what I know about the Saudi Arabia’s Labor and Workmen Law and the violations by some companies of this law. By and large, this article is hoped to embolden OFWs to fight for their rights when trampled upon or stand firm for what they believe is right no matter what happen.
In this article I will use pseudonyms Juan dela Cruz, Juanito de Dios and Juan Enriquez to refer to three of the OFWs who asked me some questions as to how they would go about their situations that caused them to loss interest in their work or made them plan to pre-terminate their contract with their employer.
Labor Contract – a legal document that defines the relation between an employer and an employee (or, according to Wikipedia, the relation between a bearer of power and one who is not a bearer of power), as governed by the labor law of a specific country
- Termination – the end of the relation of an employer and an employee that could be decided upon by any or both of the parties and that could be either with prejudice or without prejudice to the contracting parties, subject to the limitations set by the applicable laws.
- Due Process – the legal requirement to respect the rights of the employee against whom an action is initiated by an employer
- Severance Pay – money that an employee receives from his employer before leaving the company
- NSLL – refers to the New Saudi Labor Law.
He was employed by the ABC Company, a manufacturing firm based in the First Industrial City, an economic zone in Dammam, Saudi Arabia, and was bound by a three-year contract that was valid until June 16, 2011. He was given an Entry Level Pay (ELP) of SAR 3,000 a month and was, after working for two years, granted a raise of 16.67% (i.e., SAR 500) thereof. As evidenced by a total of 8 quarterly performance reports, he was no doubt an excellent employee. Having outperformed 98% of his fellow employees across all ranks in the company, he was recognized as one of The Most Outstanding Employees of the Year for two consecutive years.
Two months before his contract would expire, he applied for final exit to be able to go back to his home country and take care of his wife who was suffering from cancer in its final stage. In spite of his valid reason, his boss, a Lebanese known for his being apathetic and inconsiderate, disapproved his application, saying going on final exit before a contract expires is a breach of contract. He sought the help of HR to have his boss reconsider his decision. To his consternation, HR affirmed the decision of his boss.
Angered by the situation he was in, he, as a form of protest, did not work for three days without notifying his boss of his reason. Upon reporting back for work, he was sanctioned with a six days salary deduction without being given the opportunity to explain his side. To his surprise, less than two months before his contract would expire, he was served a notice of termination without stating therein the reason for terminating him.
Yes, because his company (i.e., the first party to the contract) did not agree to or approve of his decision to go on final exit, thus the contract continues to be valid and enforceable. Under Article 55 of the New Saudi Labor Law (NSLL), “a fixed-term contract shall terminate upon expiration of its term,” except in cases, as provided for under Article 74 of the NSLL, such as “if two parties agree to terminate it, subject to the proviso that the workman’s approval be in writing.”
But if he would insist on leaving the ABC Company in the absence of an agreement to this effect, he could be held liable to pay them all the expenses incurred in recruiting him to work for them. These are as follows:
Was Juan dela Cruz’s reason for pre-terminating his contract valid? Why?
Actually, it can be answered by either yes or no since the reason he proffered is still subject to evaluation by his company, from which he sought approval. Besides, his reason is not among the reasons listed under Article 81 of the New Saudi Labor Law, which are as follows:
- If the employer fails to fulfill his essential contractual or statutory obligations towards the workman.
- If the employer or his representative resorts to fraud at the time of contracting with respect to the work conditions and circumstances.
- If the employer assigns to the workman, without his consent, to perform a work which is essentially different from the work agreed upon and in violation of the provisions of Article 60.
- If the employer, a family member or the responsible manager commits a violent assault or an immoral act against the workman or any of his family members.
- If the treatment by the employer or the responsible manager is characterized by cruelty, injustice or insult.
- If the workplace involves serious hazard to the safety or health of the workman, provided that the employer be aware of the existence of such hazard but fails to take action to indicate removal thereof.
- If the employer or his representative, through his actions and particularly by his unfair treatment or violation of the terms of the contract, has caused the workman to appear as the party terminating the contract.
No, though the penalty, which is fine, meted out to him is one of those enumerated under Article 66 of the New Saudi Labor Law (NSLL), because in order for fine to be legally acceptable as a penalty, it should, according to Article 70 of the NSLL, be equivalent to no more than the workman’s wage for five days. Further, as he was not properly notified of the offense he had been charged with before a disciplinary action was imposed upon him, he can seek a reconsideration from his company’s Employee Relations and Development Section or lodge a complaint with the Commission for the Settlement of Labor Disputes, pursuant to Article 71 of the NSLL, which states, thus: “A disciplinary action shall be applied to the workman only after written notification of the accusations, interrogations, defense and establishment of the guilt in a report to be deposited in his personal file. The interrogation may be verbal in minor infringements, the penalty for which does not go beyond a warning or deduction of one day salary, which fact shall also be document (sic) in the report.”
Yes, because the termination was without a legal basis. His insistence that came on the heels of the vehement rejection by his boss of his application for final exit is merely an exercise of his basic rights as an employee and cannot be considered a legally admissible reason to terminate him from work. In case of pre-termination of contract, it is understood that the rights of both parties are respected, in which case there is no reason for any of them to claim said pre-termination is prejudicial to their interest. When Juan dela Cruz decided to severe ties with his employer, it was simply because of the situation of his ailing wife. His boss, under whom he worked with fealty, did not seem to understand what he had been going through. He must have come up with a decision to terminate Juan dela Cruz in order to make him change his mind or to avoid paying severance pay to him. Owing to the fact that Juan dela Cruz was terminated for an invalid reason, he was entitled to indemnity to be assessed by the Commission for the Settlement of Legal Disputes, provided termination circumstances are to be taken into consideration in such an assessment.
For the sake of discussion, Juan dela Cruz could be terminated without an award, advance notice or indemnity under the following circumstances:
- If, during or by reason of the work, he assaulted, in whatever manner, his employer, his manager, or any of his supervisors.
- If he flanked in the periodic performance evaluation, disregarded lawful instructions, or deliberately disobey safety rules posted in conspicuous place.
- If he was showing misbehavior or bad conduct at work, or had committed an offense involving moral turpitude.
- If he is guilty of forgery and falsification to obtain a job.
- If he incurred absences without valid reason for more than twenty days in one or for more than ten consecutive days, provided that discharge shall be preceded by a written warning.
- If he is hired on probation.
- If he has deliberately committed any acts with the intent to cause material loss to the employer, provided that the latter shall report the incident to the appropriate authorities within twenty-four hours from the time of becoming aware of such occurrence.
- If he illegally took advantage of his position for personal gains.
- If he had divulged work-related industrial or commercial secrets.
Juan dela Cruz was deemed resigned, not terminated. As such, he would be entitled to one third of the award provided for under Article 84 of the New Saudi Labor Law because his service period is not less than two consecutive years and not more than five years. As he joined the ABC Company on June 16, 2008 and left the company on March 16, 2011, his length of service is two years and 10 months or 34 months and his severance pay should be computed, thus:
If only Juan dela Cruz had decided to leave the company only upon the expiration of his contract, his severance pay would have been higher, as shown below:
The difference of the severance pay in cases of contract expiration and resignation:
But to Juan dela Cruz, his family matters more than money. Thus, he opted to leave the company before his contract expired because of his wife even if that means a significantly lower severance pay.
- Demotion – a compulsory reduction in an employee‘s rank or job title within the organizational hierarchy of a company, public service department, or other body. It is not necessarily opposite of promotion. In some cases, wherein a company is experiencing a financial crisis, it is merely an alternative to layoff. (Source: Wikipedia)
Juanito de Dios was a native of Samar, Leyte, a province situated in Visayas, one of the three geographical regions in the Philippines, along with Luzon and Mindanao. He was working in one of the country’s biggest mining companies until he was offered in 1992 a job in Dammam, Saudi Arabia by a college classmate, their company’s HR Specialist. A graduate of BS in Electronics and Communications Engineering from a well-reputed sectarian university in the Philippines, he held the position of Design Engineer and took, along with his three teammates, the responsibility of designing multimillion low current systems such as Closed Circuit Television (CCTV), Security System, Access Control System, Fire Alarm System, Public Address System, among others, for their clients in the Kingdom and in other GCC areas as well. Like Juan dela Cruz, he enjoyed working with his colleagues, who are also Filipinos. Most of the design engineers in their department are Filipinos because their department manager, who, though a Lebanese, prefer to hire Filipinos, saying Filipinos are hardworking and easy to deal with.
Like Juan dela Cruz, he showed a beyond-par performance, which made him qualify for the company’s Ten Outstanding Employees of the Year. In 2005, he was promoted to Technical Section Manager. As such, he had received plaques of recognition from their company’s vice president for the successful completion of all their big projects. Unluckily, in early 2009, after having a heated argument with his department manager regarding one big project (with their client, an oil and gas company), he was demoted to Design Engineer, without giving him a chance to refute the charge of gross negligence against him. Corollarily, his take-home pay was reduced by a fourth of his previous, a circumstance that caused him to lose his interest in his job. He was, yes, badly affected that he incurred a lot of absences and his performance level plummeted.
It can be and can be not. It can be because gross negligence is more than enough to downgrade a managerial employee like him. We don’t know how grossly negligent Juanito de Dios was of his job and how his company defines gross negligence. But as due process was apparently not observed, the penalty of demotion is deemed improper and unjust. For due process can be said to have been observed if an employee is given an opportunity to explain why he should not be meted out such a penalty as demotion (which should, in most cases, be resorted to when a mere sanction of censure or suspension is not enough). In the case of Juanito de Dios, the penalty of demotion smacked apparently of being a result of an argument than of his being grossly negligent of his job, especially that he was demoted right after that fateful incident and that his explanation was not asked. It is also worth noting that as defined under Article 71 of the NSLL, due process is observed if a disciplinary action is applied to the workman only after written notification of the accusations, interrogation, defense and establishment of the guilt in a report to be deposited in his personal file.”
First, he should meet with his department manager and discuss with him his objection to the sanction of demotion. This is because it is the intention of the NSLL to have cases like this to be settled amicably first between the employer and employee before the same shall be reported to the Commission for the Settlement of Labor Disputes.
Second, in case no amicable settlement is reached, he should, under Article 72 of the NSLL, report — within 15 days (excluding official holidays) from the date of delivery of the final decision — his case to the Commission for the Settlement of Labor Disputes, which shall be required to issue its decision within thirty days from the date the objection was registered.
Unfortunately, Juanito de Dios (maybe because of too much worries and disappointments he has about his case) was admitted to the hospital for more than a month. He was suffering from a recurring but curable illness that requires a convalescing period for three to four months. When he reported back for work for more or less three months, he was taken aback by the decision of his department manager not to allow him to return to work, saying he is no longer needed in his department.
Words to the wise:
- Constructive Dismissal – occurs when employee resign because their employer’s behavior has become so intolerable or heinous or made life so difficult that the employee has no choice but to resign. Since the resignation was not truly voluntary, it is in effect a termination (Source: Wikipedia). Or, occurs when the employee is advised or forced to resign or stop working by acts of the employer that run contrary to what is required of the employer by the NSLL.
Yes. Granting it is not, then what can we call it? The fact that he is no longer allowed to enter the company premises and that his department manager told him that he is no longer needed by his department is already an indication that he is terminated from work. Where there is no due process, the termination is deemed illegal, in which case Juanito de Dios can file a suit against his employer with the Commission for the Settlement of Labor Disputes within 15 days after his department manager told him he is no longer needed in his department. Moreover, if it was because of his illness, it cannot still be a ground for terminating him unless there is, according to Article 78 of the NSLL, a medical certificate that indicates his incapacity from continuing to work. Apparently, he did not resign but was forced to stop working against his will, in which case he was deemed constructively dismissed.
Yes. It is what the New Saudi Labor Law says. But if I were Juanito de Dios, I would rather leave the company and seek a job in another company. It is apparent that his work relationship with his department manager will never be the same as before and he will just be unhappy, thus stressed, to work under his department manager. Practical decision is needed in a situation like this.
Situation 4 – UNPAID OVERTIME WORK
Words to the wise:
- Overtime – the amount of time someone works beyond normal workings hours, which may be determined in several ways: (1) by custom [what is considered healthy or reasonable by society]; (2) by practitioners of a given trade or profession; (3) by legislation; (4) by agreement between employers and workers or their representatives.
- Computation: Regular hourly rate plus 50% thereof (Article 107 of the NSLL)
Hailed from Cagayan de Oro, Philippines, Juan Enriquez has worked as a welder/fabricator for a certain company for almost 5 years with a salary of SR1,500 a month and has not received an increase. He is required to work 14 hours a day, but his overtime pay is fixed at only 4 hours a day, which means he has an unpaid OT work of 2 hours a day.
To get the total OT hours he rendered in his 5 years in service, we will multiply 5 by 314, then by 2 (OT hours per day).
5 x 314 x 2 = 3,140 hours (if 2 hours per day)
With a salary of SR1,500 per month, his OT rate per hour is SR 9.375 (i.e., SR1,500 / 30 / 8 x 1.50). Thus,
3,140 x SR9.375 = SR 29,437.50 (i.e, P332,643.80, if the exchange rate is P11.30)
Overseas Filipino Workers (OFWs) in Saudi Arabia, who are faced with the same situations, may report not only to the Saudi Arabia’s Commission for the Settlement of Labor Disputes but also to the Philippine Embassy in Riyadh so that they can ask for assistance therefrom. For their contact numbers, click this link: http://www.philembassy-riyadh.
- The Sorry Plights of OFWs in Saudi Arabia (oflifeandtheliving.wordpress.com)
- The Sorry Plights of OFWs in Saudi Arabia – Part 3 (oflifeandtheliving.wordpress.com)
- The Sorry Plights of OFWs in Saudi Arabia – Part 2 (oflifeandtheliving.wordpress.com)
- For OFWS in KSA – who really wants to go into Livestock Farming (growcows.wordpress.com)
- [Press Release] Melanie Cordon the OFW falsely charged of theft and tried in absentia is released after serving her sentence – AHRC (hronlineph.com)