Abu Dhabi Court of Cassation, Labour Appeals Nos. 80 and 86 of 2023, judgment of 20 December 2023
An employer may dismiss a worker without notice under Article 44 of the Labour Relations Law only after a written investigation and, for repeated breach of duties, two warnings; without them the worker is owed notice pay, even where an outside body has found professional errors. Profit shares or commission count as wages if provided in the contract, set by the employer's internal rules, or paid consistently by custom; the wage actually paid may prevail over the figure in the registered contract. A cross-appeal must be filed by the first hearing of the main appeal.
A professional worked for an employer from March 2017 to May 2023. The registered contracts stated a wage of AED 5,000 a month, but he was in practice paid 50% of the revenue he generated, through cheques from which the WPS salary was deducted. When the employer dismissed him with immediate effect, citing three reports of the health regulator's medical liability committee finding professional errors, he claimed unpaid wages, gratuity, leave pay, notice pay and other items. The court-appointed expert found that the real agreed wage was the revenue share and calculated the average. The lower courts awarded wages, gratuity, leave pay and three months' notice pay on that basis, and the Court of Appeal also accepted the worker's cross-appeal.
On the employer's appeal the Court of Cassation upheld the wage findings. Under Article 1 of Federal Decree-Law No. 33 of 2021, the wage is what the contract provides for work; profit shares are part of it in three cases (contract, internal regulations, or settled custom). Assessing the actual wage from the evidence is for the trial court. On notice pay, Article 44 allows dismissal without notice only after a written investigation, a written reasoned decision and, for persistent failure to perform duties, two warnings. The employer had not shown any investigation, so the medical committee reports could not justify immediate dismissal and notice pay was due. The Court did, however, quash the acceptance of the worker's cross-appeal: under Article 166 of the Civil Procedure Law (Federal Decree-Law No. 42 of 2022) it had to be filed by the first hearing of the main appeal and was filed nine days late. The judgment was quashed in part and the cross-appeal declared inadmissible; the rest of the appeal was dismissed.
Employers who rely on Article 44 to dismiss without notice must be able to show the written investigation and reasoned written decision; findings by a regulator or third party do not replace that internal process. The case also confirms that courts look at what was actually paid, not only the wage registered in the contract, when calculating gratuity and other wage-based entitlements.
| Articles 1 and 44 of Federal Decree-Law No. 33 of 2021 (Labour Relations Law) — text of articles 1, 44 |
| Article 166 of Federal Decree-Law No. 42 of 2022 (Civil Procedure Law) — text of article 166 |
“تُعد إجراءًا وجوبيا على صاحب العمل الالتزام به حتى يتحرر من واجب الإنذار المقرر لفائدة العامل”Short quotation from the judgment as published by the court. The full judgment is on the court’s official service.
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