First of all let me thank you for the free legal guidance that you are providing to the expat community.
I would like to know what the current Kuwait Labor Law states regarding accumulating Annual leaves. As my family is here in Kuwait, I did not go on Annual leave for the past 2 years.
I am an Accountant and have been with my current employer for the past 4 years and my total annual leaves now stand at 58 days. Is there a limit on maximum Annual leaves that employees can accumulate? If yes, please suggest a solution.
Answer: Before we answer your question, we need to have a look at all the articles of the Kuwait Labor Law on the question of leave.
These articles are reproduced below:
Article 70: The worker shall be entitled to a 30-day paid annual leave. However, the worker shall not be entitled to a leave for the first year of work except after at least 9 months of service for the employer. Official holidays and sick leaves during the year shall not be counted as annual leave. The worker shall be entitled to a leave for fractions of the year in proportion with the period he spent in actual service, even the first year of service.
Article 71: The worker shall be paid for his annual leave before taking such leave.
Article 72: The employer shall have the right to determine the date of the annual leave and divide such leave after the first 14 days thereof, with the consent of the worker. The worker shall have the right to accumulate his leave entitlements provided these do not exceed two years and he shall be entitled to take his leave at once subject to approval of the employer. The annual leave CAN be accumulated for more than two years with the consent of both the parties.
Article 73: Without prejudice to provisions of Articles 70 and 71, the worker shall be entitled to a cash consideration for ALL his accumulated leaves upon the expiry of his contract.
Article 74: Without affecting provisions of Article 72, the worker shall not waive his annual leave with or without compensation. You and your employers have to read all the above articles to fully understand their implication.
We will now try to ensure the practical implication of the above relevant laws as follows: The company is wrong when it says you cannot accumulate leave. Yes, you can — even without the company’s blessings — for a maximum of two years BUT you can only avail this accumulated leave with the permission of the employer.
IF the employer permits, you can accumulate leave for over two years and avail it whenever he permits. But in case you can’t avail it, you don’t forfeit it — no company can make you do so and although you are unable to use it, such leave gets accumulated.
But to encash such a leave you have to wait until the end of your service at which point the company has no choice but to pay you for all the leave that you have accumulated.
Article 74 very clearly mentions that you can’t waive this right. So, even if the company makes you sign forfeiture of leave, it is wrong.
The law simply does not even give the employee the right to waive the leave so how can the employer order its forfeiture. If any employer does so, you should file a complaint in a court of law and if your complaint is rejected you can take the company to court if you want. Simply put, the company has to pay you for every day of annual leave that you have in balance.
SOURCE : ARABTIMES