News and Articles
Wednesday, 25 March 2020 11:00
Taher Legal Group publishes a legal study on the Corona Virus (COVID -19 Corona Virus Disease 2019) and its impact on the private sector according to Kuwaiti law and the effects of the partial curfew imposed in the State of Kuwait.
In light of the state of emergency imposed in the State of Kuwait, which is almost made mandatory by every country in the world due to the impact and spread of the Corona Virus (COVID -19) especially due to the imposition of prohibition of partial mobility (curfew) from 5.00 pm until 4.00 am, Taher Group Law Firm has published a legal study that shows the effects and repercussions of the measures taken by the state on the private sector.
since such procedures entail a serious financial loss for the private sector, especially the small and medium enterprises (SME’s) including the private entities as the state has announced for a mandatory closure (such as entire complexes, salons, clubs, clinics, special centers and others), which has become a temporary unfeasibility of implementation and execution of employment contracts especially due to the imposition of a partial ban on the movement of the public. This study aims at providing legal awareness about the special nature of the current situation that is an ongoing in the State of Kuwait and its manifestations on some relationships, legal dealings and how it affects the life of workers in the private sector, which is considered an integral part of the national economy in addition to how to tackle them in correlation with the various decisions of the Ministry of Health and other relevant bodies. This study has been prepared by legal experts from Taher Group Law Firm - Lawyers Abdulaziz Alkhateeb, Khalid Taher Alkhateeb, Jamal Taher Alkhateeb and Fawaz Khalid Alkhateeb. (A) The legal position of rental property and how to deal with the violations emanating from the current circumstances. (B) Concerns about the mechanism of dealing with vacations and rations for workers in the private sector with regards to the continuity of the prevailing conditions and the inability to compensate them in the near future due to shortage in liquidity. (C) Creating awareness and educating the public on legal issues specifically relating to current circumstances, whether in dealing with rumors, news and false and misleading statements or on mandatory decisions of the Ministry of Health as well as public authority decisions on how to deal with them in relation to health precautions, quarantine and other prohibitions. The study first dealt with the item one which relates to dealing with the lessor and the right of tenants to delay the payment of rent due to the exceptional circumstances experienced by the country due to the Corona Virus and the closure of public activities and some private activities, or in the event of non-closure, but the presence of the and its impact on both parties as a result of the existing conditions. The study concluded that, as a general principle and according to the provisions of Article 20 of the Rental Law, if the tenant has confirmed that they are late in payment of the rent and turns to the court which may be considered and accepted by the court for a further period until the end of the first session, if the tenant provided a valid reason for the delay. The study also dealt with a second aspect regarding exempting the tenant from the payment of rent or in its reduction due to the exceptional circumstances related to the state’s decision to curtail the activities of the public sector and some activities of the private sector including the closure of complexes, restaurants, salons, sports clubs, clinics and other center due to the imposition of a curfew, as the study showed that the tenant is obligated to pay for the use, and therefore it is necessary that the beneficiaries of the tenant (In accordance with the amicable agreement or court ruling) as per the provisions of the Civil Law, Article (581) as the decisions of the public authority lead to a significant decrease in the use of the rented property. The law permit the tenant to ask for a reduction in the rents, if there is a shortage of its benefit, such a request has to go with the pleading in line with Article 215 since the law clarifies that the closure, if temporary, is an emergency incident and it is permissible for the tenant to resort to the court to request the suspension of the implementation of the obligations temporarily, so that the lack of consent is satisfied, that is, the non-payment of the rent due to the emergency and the mandatory obligation. The study indicates that this matter is subject to the discretion of the court, as it has the authority to implement the theory of emergency conditions, and that the receipt of rent or obligations in general is not acquired or automatically gained on the grounds of exceptional circumstances subject to the discretion of the court which shall investigates the facts of the conflict and shall decide to implement the theory of emergency conditions and if there is a lack of force majeure and if such implications are absolute and free with no relevance of any kind. The third basis of the first point touches on the possibility of requesting a rent reduction due to the exceptional circumstances related to the spread of Corona Virus and the state’s decision to curb public sector activities and even some private sector activities even though the private establishments do not include in the decision of the authority to close, it remains directly affected by the general conditions in the country and the curb of movement outside the home negatively affects the activity in the private sector which leads to non-use of the rented eye for the usual practice of the activity, it is possible to ask for a reduction in the rental. The reasons for the crisis circumstances and the force majeure, noting that the implementation of declaration of an emergency (the emergency conditions) which is an absolute necessary; is a discretionary decision which is authorized by the court on the matter; while the grounds of its discretion are: (A) If something has occurred during the execution of the contract’s circumstances and such events are expected to be concluded or expected. (B) That the aggrieved party inflicts a heavy loss on it, on his financial condition which may lead to a major imbalance, and therefore a failure of the private enterprise that is required – on the part of a (lessor) for example. Participation in this loss is partial payment (and this is not binding), noting that the criterion of loss is an objective criterion related to the circumstance of the emergency, and it must be proven that the implementation of the obligations has become exhaustive and the retention of all the documents indicating that the loss is actual and genuine. With regard to the lease contract and the state’s decision to suspend public sector activities and some of private sector activities in the country and the continuation of closures which is indefinitely as well as the imposition of curfew, the study denoted the impossibility of the use of the purpose due to the closure decisions issued by the public authority in relation to the epidemic caused by the Corona Virus, its commitment is undermined which is limited to stopping it until it is enforceable of this emergency and the deferred obligations could be resumed thereafter, and the contractual period shall be allocated to the court in accordance with the exceptional circumstances which shall be judged by the court. The study also indicated that in order to continue with the desire to terminate such contracts in all the above circumstances due to the exceptional circumstances of lack of use of the rented property and the huge loss, the landlord deserves to be notified and the mutual agreement with the termination and exemption from the deadline must not be reversed or not should be agreed. The tenant could deliver the keys to the landlord through the police station which will ask may both parties to attend and record both parties’ statements. Likewise, the resources to defer matters based on the request of the Head of the police station to determine and record the date that the work at the public facilities has returned to normalcy as well as the exceptional circumstances, and in the event of the return of matters to their normalcy, the aggrieved can resort to the court to respond reasonably. With regard to the exploitation of the above property and despite the decision to close it and the legal effects resulting there from, the study stresses the closure decisions issued by the public authority organized in Law No. 8 of 1969 with the necessary precautions to prevent communicable diseases, in accordance with paragraphs (5) - (6) of Article No. (15), and the Minister of Health directives in pursuant with the coordination with the authorities, to close the shops and take any other measures or precautions not present in order to combat the epidemic. Therefore, violation of these decisions imposes a penalty of imprisonment for a period of up to three months and a fine, or one of the two penalties. On the topic of the second point of the research, the study dealt with the mechanism of dealing with workers in the private sector, and because the decision of the Council of Ministers issued on 11/3/2020 and whether it includes the private sector or not, in a sense if it is possible to compel workers in the private sector to close some activities and as per the government’s announcement that it is a two-week official holiday which may be subject to an extension for a similar period of time, the study indicated that the decision does not include the private sector, and that the private sector is not governed by it. Consequently, it is concluded that it is feasible to continue the implementation of work of the workers in the private sector to undertake and complete it before the period of the Curfew begins and that the public holidays announced by the government are addressed to the workers in the public sector, while the partial movement ban (Curfew) addresses everyone, knowing that in the history of the exclusion, the decision to close some of the private activities and groups shall continue. The second point of this topic also touches upon freezing and closing some activities (such as complexes, salons, clubs, centers and private clinics; it is not permissible to give employees leave without salary for establishment closed by a decision of the public authority, and they can be granted leave with a salary as long as they have a leave balance, and in consideration of the employer’s position in their absence as well as their financial status of liquidity to continue employing them, as the study in this regard indicated that, according to the law number 6 for the year 2010; Article 61, states that the employer is obliged to pay the workers' wages for the period of time, in full or in part, due to immobilization of the facility, for any reason, as long as the worker does not want the business owner to continue his work. As for granting them the annual leave as per the above, Article 72 states that since the law determines that the employer has the right to fix the date of the annual leave, and it is also permissible to allocate it with the satisfaction of the worker, the employer is entitled to grant them their annual leave with salaries (As per an Agreement). However, the court has the right to reject such leave and grant the employee another annual leave in case of dispute. Also, it may freeze all the obligations (salaries, duty to work, etc) temporarily if it sees how the employers are affected in a way that may inflict severe damage on their enterprises. With regard to granting workers leave without pay, the study indicated that, according to Article 79 of the Labor Law, the employer may grant the worker upon his request a special leave without pay, and therefore it is not a right of the employer but rather a right of the worker to be provided by him based on his request for his circumstances Special (agreement). And that if one of the employees refuses to cooperate and the employer does not need him as a result of the exceptional circumstances and losses incurred in the establishment, the employer can adhere to the implementation of the emergency circumstances theory, in addition to issuing a decision to end his services pursuant to the stipulations of Article 44 or 50 of the Labor Law according to the circumstances of the case, with the need to give the worker’s end-of-service certificate includes a statement of the length of his service and work and the last salary that he received, without any statement or phrases that may offend the worker or be issued in a form that may reduces the employee’s prospects of finding another job as per Article 54 of the same law. As for the payment for the notice period or the remainder of the contract period, it is observed that, if the time limit is fixed, the employer is obligated to it as a general principle except during emergency compulsions (Corona virus epidemic) in compliance with the provisions of the law. The study confirmed that the information contained therein is extracted from factual and real problems that will be presented to the judiciary in the future after the circumstance has disappeared for consideration and report according to each case. Termination of contracts and vacations With regard to the occurrence of a serious loss of a private activity and the unwillingness to continue, and the employer desires to terminate the employees ’contracts, the study indicated that the employment contract expires in the event of the establishment closing permanently according to Article 50 of the Labor Law. The employee retains his entitlement to end of service benefits. Regarding granting employees leave (with or without salary) for establishments that were not covered by the decision to close in the private sector but were affected by the authority’s urging that consumers (citizens and residents) not leave the houses due to the Corona virus, to close public activities, many private activities, impose partial bans, and weak process of buying, selling and dealing in a manner in which losses were realized, as the study showed that it is possible to have an agreement granting workers leave with pay if they have a balance, and in the event of objecting to that despite the exceptional circumstances, the worker is notified orally or in writing that the implementation of their obligations has become extremely exhausting and that there is an uncommon loss due to the freezing of activity in the country, which led to damaging one party and the suspension of the activity of the business and its gross imbalance as a result of that, and if the worker continues to refuse the leave decision with a salary according to a balance, he has the right to resort to the judiciary to examine the application of the emergency conditions theory or not. As for the leave without pay, the study indicated that it is granted to the worker upon his request without pay in accordance with Article No. 79 and is not at the request of the employer, and if the employer finds that the circumstances may lead to a state of exhaustion for his institution, he has the right to terminate the employment contract for an unlimited period after notifying the worker, and the notification shall be at least three months before the termination of the contract with respect to the workers appointed with a monthly wage, and of course the worker will have work during the period of the notification. In the absence of actual work and the continuation of conditions and losses, the employer may terminate the relationship, and the worker has the right to claim his entitlements (in the event he wishes to close the facility), and the employer has the right to adhere to the defense and request the implementation of the force majeure theory and emergency conditions when resorting to the court, and ultimately it is up to the discretion of the court’s authority to determine if there were serious losses and damages involved so as to enable it to return the stressful commitment to the reasonable limit of the balance between the interests of both parties. With regard to the employer's right to transfer employees from one department to another or another department or subsidiary company due to the suspension of employment in a specific activity due to public authority decisions and the spread of the Corona virus epidemic, the study indicated that it is possible to transfer workers to different departments or departments or companies affiliated with the company to work in shadow of the exceptional temporary circumstances and the worker is notified orally or in writing that the implementation of their obligations has become extremely exhausting and that there is an unfamiliar loss and the suspension of employment in the section that he refers to due to the freezing of the activity in the country, which has led to the volatility of one’s position and the cessation of activity and its serious disorder as a result of that, and if the worker refuses from the transfer decision, he has the right to resort to the judiciary to examine the application of the theory of emergency conditions or not. The study indicated that this does not harm what is stipulated in Article 28, Paragraph 3 of the Labor Law which states that the employer may not assign the worker to perform work that is not consistent with the nature of the work set forth in the contract or does not commensurate with the qualifications and experience of the worker who was contracted on the basis that was considered by the employer but as long as the work is organized under emergency and exceptional circumstances in order to achieve a balance between the interests of both parties temporarily and in the end the decision shall be up to the competent court. Legal education The study now focuses on its third axis, educating and guiding workers, and how employers in the private sector can legally educate workers regarding these exceptional circumstances, especially with regard to rumors and the legal responsibility that they entail, stressing that workers should be urged to be careful when dealing with circulating messages and to not rush to circulate them through the modern means of communication and not adapting news except from its official sources, and in accordance with the amended Penal Code 31/1970 AD Article (15), which states that the publication of false news, data, or rumors about the internal conditions of the country that would place in the financial state of confidence or prestige and mind or harming of national interests are crimes punishable by a temporary imprisonment of not less than three years' duration. In the second item of the third point, the study dealt with the legal implications of the decisions of the Ministry of Health regarding health precautions and quarantine and related instructions, as it was shown that workers should be advised and directed to fully comply with health precautions, in particular with those directly ordered by the official authorities and to take the necessary means to prevent diseases and epidemics in accordance with the Law of Health Precautions for Prevention of Communicable Diseases, which obligated: (A) Communicable disease reporting. (B) Giving authority afterwards to take measures to isolate patients who are ill with or suspected of communicable diseases, and according to the places where this isolation exists. (C) If one of the employees signs a home stone declaration, he or she is obligated to comply, and in violation of that, a crime related to this shall be of a sentence of imprisonment for a period of one months and a fine, in addition to the possibility of the facility being closed if he is present during the period. (D) Workers must progressively check their knowledge that they have infected someone with communicable diseases (Corona Virus). (E) Enabling the Ministry of Health to enter housing to search for patients with communicable diseases and to conduct the necessary cleansing or vaccination. They should be sensitized that the Minister of Health and the Minister of the Interior have the right to exercise exceptional powers to protect the outbreaks of epidemics and some take appropriate measures. (F) Isolation of areas in which the epidemic appears. (G) Destruction of food and beverages, which may be a source of infection. (H) Carrying out compulsory public vaccination, and the Minister of Health seeking the assistance of the security authorities in the country to implement what they intend, and upon violating those decisions or those actions that are exposed to the crime, they shall be subject to no more than three months and a fine that does not exceed fifty dinars which shall not be for more than two years. The fate of the contracts ... and a violation of the curfew The study also dealt with the issue of approving the prohibition of partial movement as an emergency and exceptional circumstance and the fate of contracts concluded with other parties in general under exceptional circumstances (Corona Virus), indicating that for contracts in force during the period of curfews or to stop economic activity in general, it is possible to adhere to the theory of emergency conditions And its impact on the implementation of contracts on the understanding that the emergency circumstance is beyond the control of the contractors and is not expected, especially if the imbalance in the contract's economies led to a serious imbalance, and it can be agreed to return obligations to the reasonable extent (whether by reducing, delaying, or freezing of For obligations). The study also showed as for contracts for procurement and other service contracts, they can be considered as temporary pending for emergency and exceptional circumstances, and for workers, there is liquidity available to the institution in order to pay the salaries, in return of the lack of liquidity or the presence of funds. In the long run if the establishment bears a heavy loss, it can be agreed to reduce the wage (satisfactorily) or give them vacation leave with their funds (agreement) or leave without pay (Upon the request of the worker and the consent of both parties), knowing that the employer is obligated to pay the worker’s wages for the whole period of the disruption of the facility. There is no reason required for the stoppage of the workers income, as long as the employer does want to continue his work, but in the circumstances of the current exceptional situation (Corona Virus) it is advised to reach an agreement between the contracting parties, and if they did not reach an agreement then the matter will ultimately be returned to the court’s discretion and it may extract the availability of the conditions for the implementation of the emergency circumstances theory, while it is advised and suggested that employers should keep and maintain documentary evidence in order to prove losses or overburden in activity. With regard to violating the curfew, the study confirmed that violating those decisions or those procedures stipulated in Decree Law No. 21 of 1979 in the matter of civil defense, which is the right of the Minister of the Interior to be the primary body responsible for civil defense, in accordance with Article 15 whoever violates the provisions and decisions enforced shall be punished for a period of no more than three years and a fine of ten thousand Kuwaiti Dinars or one of these two penalties. The implementation of this law is due to the consideration that the state of epidemic is considered a disaster, as the study added that the law of health precautions gives the state the right to prevent the movement of the public to the Ministry of Health as well and any violations of its decisions exposes the violator to a imprisonment of a period of no more than three months and a fine of not more than fifty dinars or in furtherance of the provisions of the law up to two years. The legal experts concluded the preparation of the study, in the hope that the state will play a role to compensate the employers in order to preserve the economy and workers' rights and employers in the implementation of Article 25 of the constitution where it is prescribed as (ensuring the state's social solidarity in bearing the burdens resulting from disasters and public tribulations), the four representatives submit a proposal for an amendment to the law of civil and commercial pleadings, in addition to adding further material and instances for cases of disasters, crises, strikes, and epidemics that affect the government and private entities, so that all legal deadlines for them are stipulated and included under all applicable laws and not included in the calculation of statutory deadlines or limitations in all laws, and the calculation of deadlines is resumed from the first date until the date of completion of disaster cases, confirming that this legislation has become due for exacerbation of the local and global situation by inspecting Corona Virus and to for the purpose of achieving the principle of equality among citizens based on justice and social peace. And, over the past years, a proposal has been included in the Council of Nation's agenda, to create a crisis management and disaster management agency, to be represented by a number of deputies, so that the body assumes the capacity to prepare and qualify to deal with crisis and disasters, and to benefit from the coordination of International societies and commitment to transparency with the public, indicating that these legislations have not found their way to the light yet, and as usual, the legislators has been allowed to delay the events, and the law is an essential and necessary means for the sake of and for crises and disasters, shaping the precedent, confronting them and creating law, reassuring a concept for people, hereby appealing to the legislator to expedite the issuance of legislation to address the repercussions and impacts of (Corona virus), to reduce it by not infecting society so as to protect it, while recognizing the ability of administrative and private authorities in the Ministry of Health to achieve success, it could have been better to have a legislative presence within the movement and authority that could make its own decisions.