Question 1:
(a) Definition of law and its importance
According to Merriam-Webster ‘A law is a binding custom practice of a community : a rule of conduct or action prescribed or formally recognized as binding or enforced by a controlling authority (2) : the whole body of such customs, practices, or rules (3) : common law’.
Law act as a backbone to survival of any society. Without law, the society we live in today would be far different. Law protect us from violence and every unfair actions. For example if there was no protection against physical violence, there would be murder, rape, torture and other life threatening circumstances because people do as they believe. Therefore, law is important for a society to be peaceful and problem-free.
(b) Role of law in modern and traditional societies
Laws are the most important part of any culture. By only looking at society’s laws you can find out what they truly believe. In a modern society systems are complex and the institutions are diverse, therefore, laws of a modern society try to cover every aspect of people lives. Hence, law of a modern society is a never ending thing, it’s infinite.
In traditional societies laws were made to the liking of few powerful people, who had influence over the authority making laws. In a traditional society laws are influence from the past, not the future, which makes it difficult for the people to find justice, this leads to chaos and anarchy.
(c) Sources of laws in Sultanate of Oman
Oman has three parallel interrelated sources of law, these are set forth below:
- Fundamental source is Islamic law, which is derived from Quran, the Sunna, the Ijma and the Qiyas.
- Law expressed in Royal Decrees and Ministerial Decisions
- Private International Law as applied to commercial and financial transactions.
Question 2:
(a) Inception of Labour Law in Oman and its importance
The Labour law was initial introduced in Oman in the year 1973. It has been amended several times since then.
The purpose of Labour Law is to provide social justice to the workers in industries. It provide a guideline to employer / industrialists in dealing with the matters of wages, wage incentives, facilities for workers and the working condition of labour. The companies cannot terminate an employee without giving him a notice period as agreed in the contract, if so the employee can file unfair dismissal suit. The Labour Law was amended in 2010 to allow formation of Labour Unions. The Labour Welfare Board arrange for a venue for complaints. It protects the labour in Oman by preventing any reduction in standard and condition of service under which he was employed. Buildings and establishments in which workers live or work should be kept clean and healthy.
(b) Meaning of employment contract, its elements and importance
In accordance with the Labour Law, employment contract is a contract between employer and employee, under which a person agrees to perform certain duties as directed and controlled by an employer in return for an agreed upon wage or salary.
Every employment contract should cover certain basic and essential elements. Firstly it should cover the issue of compensation which includes salary and wages, bonuses, benefits, vocational element, profit sharing and vehicle allowance.
Secondly employment contract should deal with termination of employment relationship. The rights and obligations in relation to termination of employment are very important to understand, as it would end very well for a company if it has to face an unfair dismissal suit.
If there is any duty of confidentiality on employee then it should be documented and explained in the contract.
Employment contract is very important as it not only protect rights of employee, but also power of employer. For example, if a contract or policy book have absolutely no information about the enforceability of changes in salary, then employer has the complete control to change an employee’s salary at any time. Contracts also help companies from losing employees to competitors by making employee sign non-compete, which often prohibits from working for company which compete with his former employer for a period around 12 to 18 months.
In the same way employee can also always use employment contract to fight for his rights, such as unfair termination, non-payment of salary or bonuses, bad working conditions, etc.
(c) Describe the rights of employer and employee under Oman Labour Law
According to Oman Labour Law, any natural person or body corporate employing one or more employees in return for salary is an employer.
The following are the rights of employer under Oman Labour Law:
- A workman / employee is bound to comply with terms and conditions of service.
- An employee cannot work in more than one establishment.
- Employee cannot go on strike against the employer.
- Employer can terminate the employment contract due to misconduct or after completion of agreed period by issuing notice period.
- Employer’s right to pay wages or other remuneration
- Employer’s right to control the method of doing work.
Whereas, employee rights under Oman Labour Law are set forth below:
- Employer cannot terminate the employment relationship without giving proper notice period.
- Employer cannot reduce the amount to wage or salary and bonuses as agreed in the contract.
- Employee has the right of healthy and clean working environment.
- To receive compensation for workers, who are victim to accident.
- Right for annual leaves and emergency leaves
- Employee can go to court on the basis of unfair dismissal
(d) Analyze the case based on employment contract
If you are accepting a new position at any company, even a new position within your present company, always read employment contracts and non-competes in detail. Read them all the way through, and consider having a lawyer read it with you. Make sure you comprehend what your company can dictate and your rights in a particular state. Certain states, such as Illinois and California, have different regulations for overtime. In New York State, employers are required to show employees a wage statement, which they need to sign to acknowledge their rate of pay and how often they are paid.
(e) Cases when dismissal of an employee could possible
According to Article 40 of Oman Labour Law, an employer may terminate the employee without proper notice in any of the following cases:
- If the employee assumes a false identity or resorts to falsification to obtain the employment.
- If the employee commits a mistake which results in critical material loss to the employer.
- If the employee does not abide by the instructions which must be followed for the safety of the employees and the place of work in spite of being warned in writing.
- If an employee is absent from his work for more than ten day in a year or for seven consecutive days without giving any reasonable justification, provided that the employer had given a written warning after the instance of first five days.
- If the employee breaks the code of confidentiality and discloses the secrets of the establishment in which he works.
- If the employee is finally found guilty of a crime or offence involving breach of honor or trust or a crime committed in the place of work or while the work is being performed.
- If during the working hours the employee is found drunk or intoxicated by a narcotic substance or a mind stimulant.
- If the employee assaults the employer or the manager in charge or gravely assaults any of his superiors during the work or because of the work or if he beats one of his fellow employees in the place of work and such beating results in illness or discontinuation of work for a period which exceeds ten days.
- If the employee gravely breaches his obligations to perform the work agreed upon in his contract of employment.
(f) Is the dismissal of Al Anood unfair?
The dismissal of Al Anood is unfair due to many reasons, firstly because it is unlawful in Oman to dismiss an employee without the notice period.
According to 2 clause of Oman Labour Law Article 40, ‘If the employee commits a mistake which results in grave material loss to the employer, provided that the latter reports the incident to the concerned Directorate within three days from the date of his knowledge of such incident. As far as we know this clause was not complied.
Last but not the least she was given a duty of driving car without seat belt and make round trips to head office and certain sub stations, this was not her job description in the contract.
(g) Measures that Al Anood could take to defend herself and fight for her right
Al Anood can go to court and file a suit against Khalfan & Sons Co. on the basis of unfair dismissal on various reasons:
- Firstly she was dismissed without giving proper notice period;
- she was given extra responsibility, which was not in her contract;
- the car that was given to Al Anood was without seat belts which was against health and safety conditions.
Considering the above situation Al Anood can file a suit in court against the company and claim for the compensation against unfair dismissal and working conditions.
Conclusion:
The part one was about definition, source and importance of law, and role of law in modern and traditional society.
Second part was about the inception of Labour Law in Oman, meaning of employment contract and its importance, cases when dismissal of employee is possible, the case of Al Anood dismissal and the measures that she could take to defend herself.