The circumstance that is being witnessed by the world, is the outbreak of the coronavirus pandemic, has led governments to take preventive actions to curb the spread thereof. Such an approach has also been taken by the Government of the Sultanate of Oman in order to control the disease and curb its spreading. Naturally, and as a result of such actions which have restricted or reduced trade movement, a thing which has reflected on the business activity, most companies have taken actions, in line with the directives of the supreme committee for combatting the disease, for the reduction of the number of workers in entities and their attendance has become little, a thing which adversely impacted commercial entities.
The employer has the authority to organize its management in the manner it finds the best to attain the objectives thereof. There is no limitation of its authority as long as its practice does not involve any intention to abuse its workers. Arising from this perspective, we will begin writing this subject, being namely, the employer’s right to organize the annual leaves to which a worker is entitled under Article (61) of the Omani Labor Law.
As the unanticipated events of force majeure have led employers to make decisions for the reduction of workers in their entities in line with the resolutions of the supreme committee in order to curb the spread of the disease, and as it is legally and jurisprudentially known that pay is due in return of work to be performed, the solutions available to employers have become limited, as the first option that is available for an employer, from our legal point of view, is to give the worker his paid annual leave during this period until he avails of his entire balance of leave days. This is associated with the financial abilities of the entity in pursuance of the provision of Article (61), which stipulates that: (A worker shall be entitled to an annual leave with full pay for a duration of not less than thirty days, and the worker shall take his leave according to the requirements of work interest …). The requirements of work interest are always a matter that is subject to the employer’s discretion in line with the interest of work. There is no doubt that after the reduction of the number of workers in an organization due to declining business or the suspension of the entity’s activity, the interest of work would require that the employees would go on annual leave in what would serve the interests of the work.
Such decisions may not be suitable for the workers category and the workers might find them in violation of the Labor Law, as the worker has no hand in the situation and did not refuse to perform work. On the other hand, there is an argument in favor of the employer which finds that the situation is not fair in having to pay a salary to a worker without the performance of work.
With the emergence of this dispute, legal opinions have appeared. Some of such options have adapted the matter as contingent events that would permit dismissal with compensation, while other opinions have adapted it as a force majeure that would require the termination of the contract without compensation due to the impossibility of performance. A third opinion combined both theories, provided that each theory would be applied on a case to case basis by deducing the impact that will be sustained by the organization as a result of the pandemic.
In a deliberation and a compromise of these three opinions, the supreme committee for combatting the disease, assigned by virtue of the Higher-Order dated 15/4/2020, has issued a packet of economic procedures for mitigating the impact of the precautionary measures associated with the spread of the disease by a collection of facilities to the establishments and companies of the private sector. These included a remedy for the case subject of the research in what would make a compromise between the worker’s rights and the employer’s rights by the provision of a governmental support to such establishments and companies in the form of exemptions or reductions of stipulated fees or extensions of procedural timings.
The remedy differentiated between the national labor and foreign labor. As in relation to the national labor, it provided three obligations of the employer, including negotiating a salary reduction in return of the reduction of working hours for a duration of 3 months following the depletion of the balance leaves.
- Establishments and companies are obligated to not terminate the services of the national labor.
- It is possible to give paid annual leaves.
As in relation to the foreign (expatriate) labor:
- To give paid annual leaves.
- To negotiate with the worker for a salary reduction for a duration of three months, starting from May 2020, should this be necessary (in case of the continuation of the coronavirus situation).
- To urge the affected establishments and companies of the private sector to repatriate the non-Omani workforce on a final basis.
Here, a question arises: Is the repatriation of the foreign workforce a legal or an arbitrary action?
In our modest assessment, the termination of the contract, in this case, is legal, as it is in line and consistent with the resolution of the supreme committee, formed by virtue of a higher order. Furthermore, this involves some justice and fairness in having both parties, which have no control over the situation, to share the damages on an equal basis.
BSA Al Rashdi and Al Barwani Advocates & Legal Consultants