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Kuwait and the rest of the Gulf Cooperation Council (GCC) states have received a lot of attention regarding employment issues, even though we have progressed immensely and are still doing so. We saw amendments last week to the benefit of employees, but there is still an issue that I would like to speak about - absconding. It is a very serious matter that can have consequences of deportation or worse - jail. I would like to focus on this issue in hope to bring attention to the matter. Maybe the law or bylaws will be amended soon to resolve issues that arise from absconding.
Absconding by definition, according to Merriam-Webster, is to depart secretly and hide oneself. The word absconding is a harsh word and is usually used for someone running away from something or even escaping from jail, but the general public seem to use the word in Kuwait to describe an offense of leaving an employment contract without agreeing with the employer on the termination method. This can be very misleading. Also from experience, I have seen employers misuse their power to file absconding cases against their employees unrightfully. Today I will be talking about my experience handling legal cases related to absconding.
Lawyers dealing with absconding cases say they are like nightmares - many also say that the procedures and consequences for absconding cases in Kuwait are inhumane. Recently, the Kuwait Social Workers Society spoke about absconding, and I hope to see more organizations and public figures speak about what is right for the people who live in Kuwait and make Kuwait a better place.
Question: I was told that there are two types of absconding cases and they take 90 days to remove. Can you explain this please? How can I remove an absconding case against me?
Fajer: An absconding case is usually registered at the shuoon (Public Authority for Manpower) for 90 days, before it is transferred to the Ministry of Interior, where it can become a serious matter. You can remove the absconding case against you from the shuoon before 90 days have elapsed - either by the employer himself removing the absconding charge, or the employee can submit a request to a committee to remove the absconding case after proving that he/she was not absconding.
More difficult
Question: I have heard that there are new regulations making it even more difficult for transfers. I was not allowed to transfer before I removed any complaints I had against my employer. Can you please explain this?
Fajer: There is a new regulation number 2 for 2017 that simply states that an employer will not be allowed to transfer without checking if the employee has any restraints from being able to accept such a transfer. This from a practical point means that employees are requested to remove any complaints regarding the transfer of the visa. This is not true for complaints regarding monetary benefits such as termination indemnity, leave balance and so on.
The employer will also not be allowed to transfer 15 days after the permission to transfer by the shuoon, as the previous employer will have a right to appeal this decision.
Abuse
Question: I filed a complaint against my sponsor at the shuoon, but he filed a case against me, claiming that I absconded from work, when I did not. I actually resigned. He would not give me my passport back, which he was holding illegally, so I filed a case at the shuoon. To my surprise, he had filed an absconding case against me. What can I do or what should I have done to avoid such a thing in the future? What is the punishment for absconding?
Fajer: Absconding cases are now becoming stricter in Kuwait towards the employee, and this unfortunately is being abused by violating employers who have other issues against their employees. They do not want to pay termination indemnity, so they might accuse their employees of absconding. How can you avoid this? 1) Always have your termination/resignation in writing. 2) If you do not want to go to work because your employer is violating your rights, and it is not safe for you to stay there, then file a complaint first. Your employer will not be able to accuse of absconding if you have filed a case first.
The punishment for absconding in Kuwait is deportation. It is not looked into by a judge - you will be deported unfortunately.
Should you have any questions or concerns, or you require a consultation, please email me at [email protected]
By Attorney Fajer Ahmed
