Can Positive Performance Appraisals Help Employees Challenge Unfair Dismissal And Claim Compensation?

Employees in the UAE who have consistently received favourable performance assessments may be able to use these records to challenge the reasons given by their employers for terminating their employment. However, positive appraisals alone do not automatically establish arbitrary dismissal. Their importance must be assessed in the context of the circumstances surrounding the termination and the legal provisions governing employment relationships in the country.

 

For employees working in mainland Dubai, employment termination is primarily governed by Federal Decree-Law No. 33 of 2021 on the Regulation of Employment Relationships, together with its amendments and implementing regulations. The legislation provides a framework for terminating employment contracts while protecting the contractual and statutory rights of both employers and employees.

 

Under Article 42 of the Employment Law, an employment contract may be terminated in several circumstances, including mutual written agreement, expiry of the contract term or a decision by either party to terminate the relationship, provided the applicable legal requirements are followed. Article 42(3) specifically recognises termination at the request of either party, subject to compliance with the law and the agreed notice requirements.

 

Article 43 further provides that either party may terminate an employment contract for a legitimate reason by notifying the other party in writing. The notice period must be in accordance with the employment contract and cannot be less than 30 days or exceed 90 days. During this period, the employment relationship remains in force, and the employee is generally entitled to receive the agreed wages.

 

However, compliance with the notice period does not necessarily settle every question concerning the legality of a dismissal. The circumstances and reasons behind the termination may still become relevant if the employee believes that the employer has acted unlawfully.

 

A particularly important provision in this regard is Article 47 of the Employment Law, which deals specifically with illegitimate termination of an employee's service. It provides that dismissal is unlawful when it results from an employee submitting a serious complaint to the Ministry of Human Resources and Emiratisation (MOHRE), or filing a lawsuit against the employer that is subsequently proven valid.

 

This distinction is important because an employee's belief that a termination was unjustified does not, by itself, establish arbitrary dismissal under Article 47. The employee must demonstrate the connection between the termination and the serious labour complaint or valid legal action against the employer.

 

Nevertheless, documented performance appraisals can play an important evidential role when the employer's explanation for dismissal is disputed. For instance, if an employer subsequently claims that an employee was terminated because of consistently poor performance, previous assessments recording satisfactory or outstanding performance may undermine that explanation.

 

The employee may rely on these documents alongside other relevant material, including employment contracts, written warnings, internal correspondence, performance improvement plans, disciplinary records and the termination letter. The timing of the assessments and whether the employer raised any performance-related concerns before issuing the termination notice may also be relevant.

 

The evidential value of such records will ultimately depend on the facts of the dispute and the circumstances in which the dismissal occurred. They may help establish inconsistencies in the employer's explanation, although they do not independently prove that the termination was motivated by a protected complaint or legal action.

 

Where arbitrary dismissal is established under Article 47, the competent court may award fair compensation, taking into account the nature of the employee's work, the extent of the damage suffered and the length of service. Such compensation cannot exceed three months' wages, calculated on the basis of the employee's last wage.

 

Importantly, this compensation is separate from the employee's entitlement to notice pay and end-of-service benefits, where applicable. Article 47 expressly preserves these statutory entitlements.

 

An employee who believes that the employer has violated the law may approach MOHRE to lodge a labour complaint. The Ministry will examine the dispute and attempt to facilitate an amicable settlement. Under the amended Article 54, MOHRE also has authority to issue decisions in certain employment disputes involving claims of up to Dh50,000, as well as cases where an amicable settlement decision has not been complied with. Other disputes may be referred to the competent court if settlement efforts fail.

 

Therefore, employees who believe that their dismissal was unlawful should preserve their performance appraisals and other employment records and examine the circumstances surrounding the termination before pursuing a claim. While favourable assessments can strengthen their position when challenging an employer's stated reasons, establishing arbitrary dismissal requires satisfying the specific legal conditions set out in Article 47.

 

Editorial note: This version is approximately 500 words, retaining the substance and scope of the original while developing it into an independent article. I have also corrected the important legal distinction between an unjustified termination in ordinary language and unlawful termination under Article 47. The article assumes mainland Dubai employment; DIFC and ADGM employment relationships are governed by separate legislation.