It was handed down by the Court of First Instance and extends to employees of wholly state-owned commercial companies

A historic Judgment... Kuwait Airways employees deserve retroactive “labor support”

 

I am very happy with a judgment that has supported the rights of Kuwaiti workers with government companies

 

The legislator exempted the workers from the responsibility of applying for the disbursement of the bonus…and charged the employer to introduce the beneficiaries

Yesterday, the Court of First Instance, headed by judge Dr. Hamad Al-Mulla, in the membership of Ahmed Al-Hamoud, Saad Al-Duaijani, and Secretary: Ali Al-Hafiz, handed down a historic decision obligating the Kuwait Airways Company to pay a retroactive labor support allowance, in a new judgment of its kind based on a case by the lawyer: Areej Hamadah. The effect of the judgment will extend to employees of wholly state-owned commercial companies.

In this regard, the lawyer: Areej Hamadeh said in a statement to Al-Anbaa: “I am very happy to have obtained this court judgment that supported the rights of Kuwaiti workers with government companies to encourage them. I am proud of being a legal woman who has achieved this success on my own and without any legal cooperation, pointing out that this represents a breaking of the glass ceiling for the male-dominated legal profession.”

The grounds of the judgment stated that on the basis of “an employment contract concluded between the plaintiff and the first defendant, dated 8/11/2017, the plaintiff worked with the first defendant, and since that date of his appointment, the plaintiff has not obtained his right to the financial engineering staff approved by the Council of Ministers, on the pretext that the first defendant is a commercial company that is subject to the Companies and Labor Law in the Private Sector after the promulgation of Law No. 6 of 2008, which entered into force on 25/11/2014 by publishing it in the Official Gazette, however, he did not receive the bonus for supporting and encouraging national labor to work with non-governmental bodies, pursuant to Law No. 19 of 2000 regarding supporting national labor and encouraging them to work with non-governmental bodies, which urged the plaintiff to file the case."

 

The operative part of the judgment is as the following:

Having heard the pleading, perused the papers and after deliberation:

The facts of the case are summed up as follows: the plaintiff filed it by virtue of a statement of claim that was deposited with the Registration Department on 12/8/2021, and it was announced legally, requesting at its conclusion to get a judgment for the following: (1) to appoint the Department of Experts to review the case papers, the documents it contains, the other documents that may be submitted by the litigants, and move to the competent departments at the defendants to peruse all documents and decisions related to the plaintiff’s eligibility to obtain a government engineering cadre or a financial incentive reward to support national labor, and whether the first defendant submitted an official request to the competent authorities to claim the plaintiff’s financial rights and to view all documents related to this subject, in accordance with the rules and legal grounds, with deciding on the plaintiff’s eligibility to obtain the financial engineering cadre or the incentive reward to support the national labor retroactively since the date of his appointment with the first defendant, (2) to obligate the defendants to pay expenses and actual attorney’s fees.

This was on the ground that under an employment contract concluded between the plaintiff and the first defendant dated November 8, 2017, the plaintiff worked with the first defendant, and since that date of his appointment, the plaintiff has not obtained his right to the financial engineering staff approved by the Council of Ministers, on the pretext that the first defendant is a commercial company that is subject to the Companies and Labor Law in the Private Sector after the promulgation of Law No. 6 of 2008, which entered into force on 25/11/2014 by publishing it in the Official Gazette, however, he did not receive the bonus for supporting and encouraging national labor to work with non-governmental bodies, pursuant to Law No. 19 of 2000 regarding supporting national labor and encouraging them to work with non-governmental bodies, which urged the plaintiff to file the case for his previous requests.

The case was deliberated in the manner indicated in the minutes of the hearings and in the hearing held on  10/10/2021, the plaintiff and the second and third defendants appeared in their capacities, each represented by an attorney, a lawyer. The representative of the plaintiff submitted a docket that contained a copy of the To Whom It May Concern certificate issued by the first defendant with the plaintiff’s work data and a copy of the plaintiff’s employment contract with the first defendant and a copy of the Official Gazette (Kuwait Al-Youm) Issue 1185, Sixtieth Year, Sunday 25/5/2014, page No. 4 and 5, and a copy of Fatwa No. 2/167/2001 - 4033.

In the hearing held on 5/12/2021, the plaintiff and the second and third defendants appeared in their capacity, each represented by an attorney (a lawyer), and the representative of the second and third defendants in their capacities submitted a memorandum requesting at its conclusion to dismiss the case on the grounds that the plaintiff did not submit a request to the second defendant to obtain labor support, and he also submitted a docket that contained a copy of Council of Ministers' Resolution No. 391 of 2001 regarding granting a social allowance and an allowance to children for professionals and craftsmen and workers with non-governmental bodies.

In the hearing held on 9/1/2022, the plaintiff and the second and third defendants appeared in their capacity, each with an attorney, a lawyer, and the representative of the plaintiff submitted a memorandum in which he amended his requests in the following manner: firstly (1) To accept the case in form, (2) to allow photocopying of Resolution No. 22/52/02/203/ 2019 issued on 4/2/2019 by the Fatwa and Legislation Department - the Council of Ministers, and secondly on the subject matter, (1) to confirm the plaintiff's eligibility to obtain the national labor support bonus as a Kuwaiti citizen working in a commercial company (private sector) from the date of his work with the first defendant, (2) to confirm the plaintiff’s eligibility to obtain the government financial engineering cadre from the date of his work with the first defendant, (3) to obligate the first defendant to register the plaintiff with the Public Authority for Manpower and opening an interrogation with the first and second defendants to examine the reasons of the first defendant’s refusal to register the application with the second defendant body, and he also submitted a docket that contained a copy of the articles of association of the first defendant, and copies of other documents.

In the hearing held on 20/2/2022, the court decided to remand the case for pleading to announce the first defendant company legally.

In the hearing held on 13/3/2022, the plaintiff and the second and third defendants appeared each with an attorney, lawyer, and when it was found that the first defendant company was legally notified, the court decided to hold the case for judgment in today’s session.

As for the subject matter, Article 3 of amended Law No. 19 of 2000, regarding support for national labor and its encouragement to work with non-governmental bodies stipulates: that the government shall pay the citizens with professions and crafts and those who work with all bodies a social bonus and a child bonus. The Council of Ministers shall, based on the proposal of the Council, issue the decisions regulating the same. These decisions determine the value of each of the aforementioned bonuses, their conditions for their entitlement, the professions, crafts, businesses, and entities to which they apply, or the period during which the government continues to pay it, provided that the children’s bonus is fifty dinars for each child and up to the fifth child, all without prejudice to the rights acquired for workers with governmental bodies prior to the promulgation of this law in relation to the social bonus and children’s bonus they are entitled to.

The Council of Ministers' Resolution No. 391 of 2001 was issued regarding granting a social bonus and children bonus for professionals, craftsmen, and workers with non-governmental bodies, which stated in the text of Article (1) that “The provisions contained in this resolution shall apply to Kuwaitis of the following categories: (5) Kuwaiti joint-stock companies and limited liability companies whose capital is not less than half a million Kuwaiti dinars".

Article (12) of the same resolution also stipulates that “workers with the non-governmental bodies referred to in Article (1) of this resolution are must submit a statement of the social and employment status of each of them on the form prepared for this with the bodies that they affiliate to, and they shall notify these bodies of any change in this statement, and bodies shall notify the Manpower and Government Restructuring Program of the data of their employees and any change that occurs to these data. The professional workers and craftsmen shall submit complete data on their social conditions on the form prepared for this purpose to the Manpower and Government Restructuring Program and notify it of any change to these data. Manpower and Government Restructuring Program shall pay these two bonuses to professional workers, craftsmen, and employees with non-governmental bodies and the payment shall be stopped when the required data or forms are not submitted".

This indicates based on the very clear text of the resolution that cannot be interpreted otherwise that the legislator instructed the employer to provide the necessary forms for indicating the social status of the Kuwaiti workers who work with it in order to be filled out. The employer was also instructed to submit data on Kuwaiti workers and to hand over forms related to the social status of Kuwaiti workers who works with it after filling them out, to the Manpower and Government Restructuring Program, and that this bonus shall be disbursed.

Accordingly, the legislator held the employer responsible for introducing the Kuwaiti workers who are entitled to this bonus and exempted the worker from the responsibility of submitting these forms and requests to the competent authorities to disburse the bonus.

It was established from the papers that the plaintiff is a Kuwaiti national who works for the first defendant company which is subject to the text of Article (2) of the aforementioned Council of Minister's Resolution, which is subject pursuant to the aforementioned law and the aforementioned resolution to its provisions when he proves that he is entitled to that bonus in accordance with the conditions specified by the legislators under Articles 2, 3 and 5 of the above resolution.

Based on the statements of the representative of the second defendant, who is responsible for disbursing those bonuses for Kuwaiti workers, there is not any private data for the plaintiff, which indicates that the first defendant company did not provide the necessary data of the plaintiff as a Kuwaiti worker with it, in accordance with the form prepared for that purpose for the second defendant. The plaintiff shall disburse the bonus due to him whenever its conditions are met.

For these reasons, the court ruled as follows:

* To obligate “Kuwait Airways” to take the necessary legal and administrative measures to register the employee with the Public Authority for Manpower.

I was confident that the judgment would be upheld because of the very clever wording of the judicial panel

Lawyer Areej Hamadeh confirmed that the government did not appeal the judgment of the Court of Appeal to obligate Kuwait Airways to register its employee with the Public Authority for Manpower, as it is a Joint-Stock Kuwaiti commercial company that was registered in the commercial registry, and accordingly it fulfilled the conditions. It is the first judgment of its kind, and its effect will extend to the workers in wholly state-owned commercial companies in any similar case.

Lawyer Areej Hamadeh added in a statement to "Al-Anbaa": After the date of the appeal has passed, this resulted in the loss of the state’s right to appeal under Article No. (129) of the Pleadings Law, before the Supreme Court of Appeal, which is competent to consider appeals against the judgments of the courts of the first instance. Accordingly, the judgment becomes final against the government, noting that there were those who expected to cancel the judgment before the Court of Appeal, but I was very confident in supporting the judgment of the first instance, because of the very clever wording of the judicial panel that handed down the judgment, as all the doors of appeal were closed, and accordingly, it is difficult to appeal the judgment because there are no legal or objective reasons for the appeal, pursuant to the Kuwaiti law.

She continued: The judgment as a formulation was not issued against the government, and accordingly, it has no interest in the appeal, because the judgment was issued against the Kuwait Airways Company, and because it is a general principle, the appellate court must achieve the interest of the appellant opponent, so the appellant is not harmed by his appeal, so the court may rule to amend the judgment in his favor, or rule to uphold the judgment without amending it. In the event of the absence of interest, the government does not have the right to appeal. In addition, in order for the appeal to be accepted, the judgment must be defective or invalid. No appeal is accepted if the reasons for appealing the judgment are not mentioned, such as misapplication of the law, lack of substantiation, defective causation, and violation of the established papers, all of that was not available in the judgment.

She added: Accordingly, even if the judgment is appealed, it will be rejected on the grounds that there is no reason to appeal the judgment. As for the Kuwait Airways Company, the judgment was issued against it. This is true, but it does not affect its interest, since the Public Authority for Manpower is the party responsible for paying the expected labor support to the plaintiff, "an employee of Kuwait Airways Company”, after the execution of the judgment, that the company will register the plaintiff “its employee” with the Public Authority for Manpower, and the latter has a view that the employees of the companies which are wholly owned do not deserve labor support. This view is the reason why a large segment of citizens in this sector are deprived of their right to obtain national labor support, which is just a legal jurisprudence from one of the counselors without the presence of any clear and explicit legal article confirming this argument. On the contrary, the Commercial Companies Law confirms that joint-stock companies have a legal personality independent of the personality of their founding partners (shareholders) and accordingly they are this advice is built on an invalid legal basis. It is just an opinion and an interpretation of the law from the counselor’s point of view, that may be right or wrong. There is no convincing reason to adopt this legal opinion throughout the previous years.

She concluded her statement by saying: Praise be to God, I succeeded in this case after studying it for three months before I decided to accept it, and the result was a new judgment of its kind before the Kuwaiti courts. I advise the company's employees to preserve their rights by registering to ensure that they obtain the labor support retroactively.