Termination in case of Terminal Illness, UAE
It has been an unexpectedly enlightening experience to see patients' primary concern once they are diagnosed with a terminal illness is whether they will be able to continue working while they are receiving their treatment or not and the extent of treatment on their ability to function and look normal. Of interest reaching the insurance annual cap is still an issue for all patients in the UAE including expatriates. Almost all expatriates with cancer diagnosis fear they will lose their job and hence their health insurance once they are not able to meet their job requirements or miss working days. This complex issue had been illustrated by Hana Abu Lughod, an expatriate from Jordan in Dubai, who lost her job after her breast cancer diagnosis. Hana lost her job after her diagnosis and had to seek charity support to finish her cancer treatment. The radio presenter was diagnosed with breast cancer in May 2017 at just 32. The biggest challenge was not living with the uncertainty of cancer itself, but the financial impact it had on her life and the new way she was treated by friends. Hana's positive outlook has helped carry her through a double mastectomy in her home country, where she was forced to go after losing her job, visa and health insurance.
It is sadly inevitable that some of the members in the workforce may be diagnosed with a severe illness during their working tenure. For some, the illness may be terminal, particularly as more and more of them have to work to a much older age. One in every five people who return to work after cancer face discrimination from their employer or colleagues, according to research from Macmillan Cancer Support and YouGov (2011). A terminal illness is likely to be considered as a "disability" under equality legislation internationally, which means the employee has the right not to be treated less favorably at work, and the employer must reasonably consider adjustments to enable them to stay in work. But, the situation of the terminally ill worker can be complicated. They may not be able to adapt to an adjustment, and due to the degenerative and fluctuating nature of their condition, what was "reasonable" one day may not be reasonable the next day.
American Courts have consistently declined to hold to a higher standard a "benevolent" employer that goes above and beyond the call of duty. A good example is Myers vs. Hose (50 F.3d 278), where a city bus driver was terminated as due to significant restrictions he was not able to perform his work duties. In support of his Americans with Disabilities Act (ADA) claim, the employee argued that the fact that other employees were provided accommodations when he was not is evidence of discrimination. In rejecting the ADA claim, the Court did not want to punish a good deed. It was held that the duty of reasonable accommodation does not encompass a responsibility to provide a disabled employee with alternative employment when the employee is unable to meet the demands of his present position. The fact that certain accommodations were offered to some employees out of good faith did not validate that they should be extended to Myers as well. Such a mandate would discourage employers from treating disabled employees in a spirit that exceeds the mandates of law. If the same level of accommodation would be legally required of the employer in all subsequent cases, a good deed would effectively become a liability. Discouraging discretionary accommodations would undermine Congress' purpose of eradicating discrimination against disabled persons. The claims were dismissed for the additional reason that the plaintiff could not prove that any nondisabled person was treated better than him.
A severe and long-term illness preventing an employee from the ability to work can eventually result in the "frustration" of the employment contract. Determining the point where frustration occurs is most challenging. The judgment of the Ontario Superior Court of Justice in Estate of Cristian Drimba v. Dick Engineering Inc. (2015 ONSC 2843 (CanLII)), illustrated the complexities. In 1996, Mr. Drimba began working for the engineering firm. He was diagnosed with terminal cancer in June 2013 and commenced a leave of absence. Two months later, the assets of the firm were sold but Dick Engineering continued as a corporate entity. On 29 August 2013, Mr. Drimba was informed in writing that his employment would continue and that upon his recovery, Dick Engineering would arrange his interview with the purchaser of the assets. Mr. Drimba died on 17 September 2013. His estate filed an action for wrongful dismissal against the engineering firm. The Court stated that Mr. Drimba was neither terminated by any act of the employer nor he was constructively dismissed. It should be noted that as per Employment Standards Act 2000 (ESA), either termination or dismissal by the employer is a requisite for the employee to be entitled to a notice of termination, termination or severance pay. ESA Regulation 288/01 provided that an employee is not entitled to either termination pay or severance pay where the employment contract has been frustrated by a fortuitist or unforeseen event or circumstance. In Ontario Nurses' Association vs. Mount Sinai Hospital (2005 CanLII 14437 (ON CA)), a nurse was terminated from Mount Sinai Hospital due to a disability. The hospital contended that her disability resulted in the frustration of her employment contract. As per the ESA provisions, she was disentitled to statutory termination pay as well as statutory severance pay. The Ontario Court of Appeal amended the ESA provisions as they were unconstitutional and concluded that the employee was entitled to statutory termination and severance pay where the employment contract is frustrated due to illness or injury. In Mr. Drimba's case, the Court concluded that his employment contract became frustrated before he died. He was entitled to both termination pay and severance pay under the ESA. His estate was then so entitled.
Article 114 of the Federal Law Number 8 of 1980 also known as the UAE Labor Law states that
"An employment contract shall not terminate by reason of the employer's death unless the subject of the contract is connected with his person. A contract shall, however, be terminated by reason of the worker's death or total disability to work, as established by a medical certificate approved by the competent health authority in the State. If a worker is capable, notwithstanding partial disability, of performing other work consistent with his state of health, the employer shall assign him, at his request, to that other work, if available, and pay him the wage normally paid to holders of such jobs, without prejudice to any entitlements and compensation due to the worker under this Law."
Further, as per Article 120(e) of the UAE Labor Law, the employer may dismiss the worker without prior notice if the worker fails to perform his primary duties as per the employment contract, and fails to remedy such failure despite a written investigation on the matter and a warning that he will be dismissed in case of recidivism.
As per Article 83(2) of UAE Labor Law, should the worker contract an illness after spending more than three months of continuous service from the end of the probation period, he is entitled to a sick leave not exceeding 90 consecutive or non-consecutive days for every year of service. In addition, Article 85 states that the employer may terminate the service of the worker subsequent to the exhaustion thereby of the sick leaves set forth by the Labor Law, should he not be able to report back to his work. In such a case, the worker shall be entitled to the end of service gratuity in accordance with the provisions.
Therefore, the employer may terminate the services of an employee, in accordance with the notice provisions, if the employee is unable to resume their duties following 90 calendar days' sick leave in any year of service. The employer must allow the employee to take the full sick leave entitlement before terminating. On such termination, the employee remains entitled to end of service benefit. However, unpaid periods of service are not included for the purposes of length of service for calculating end of service benefits. As such, if the employee has taken 90 days' sick leave (the first 45 of which are paid and the second 45 days of which are unpaid) only the first 45 days must be included in the end of service benefits calculation.
The UAE Amnesty has provided help in a situation where the employer was diagnosed with cancer. Mr. Mohammed Ayyoob was working in Bufalini Middle East Marble L.L.C, Sharjah Industrial Area since March 2015. His salary and overtime were pending for 5 months. The company was going through financial issues as the company Owner Mr. Abdul Rasheed had been diagnosed with cancer who had gone to Pakistan in December 2017 and had no plans to return. There was no work in the company and the company would be closed soon. He did not have the money to pay their pending dues. The employer, in this case, had cleared Mr. Ayyoob's immigration fines through amnesty and cancelled his visa.
The UAE rules and regulations are framed to protect the employee, yet employers often dismiss an employee for underperformance rather than a medical condition. This is in accordance with Article 120(e) of the Federal Law Number 8 of 1980 regulating Labor Relations in the UAE as explained above. Current regulations do not exclude medical conditions as an acceptable reason or cause for underperformance as an exception for these rules. There are several expatriate cancer patients who lost their jobs in the middle of their treatment and they were left without health insurance or valid legal status to stay in the UAE and thus bound to leave to their home countries to seek continuation of their cancer treatment which most likely delays and causes gaps in their treatment. The expatriates with terminal illness diagnosis in the UAE should be treated with special protective rules and regulations given the seriousness of such diagnosis and also the nature of treatments which could last for years and even the patient's entire life. The uncertainty of the terminal illness itself in addition to the financial impact of job loss and health insurance loss can lead to severe consequences and likely poor oncological outcome if the patient is not able to continue their treatment.