Kuwait Court of Cassation principle number 373

Summary: - A worker's wage. It includes the basic wage and everything paid to the worker and accruing to his assets by the employer regularly and continuously, upon which he relies in organizing his livelihood, whether in the form of increments, bonuses, allowances, grants, or monetary benefits. What is granted to the worker by someone other than the employer, such as the social allowance and children's allowance granted by the State to Kuwaitis working in the private sector pursuant to Article 3 of Law 19 of 2000 concerning Support for the National Workforce and Encouraging It to Work in Non-Governmental Entities. These are not considered components of the wage on the basis of which the end-of-service gratuity is calculated. Reason therefor. The source of this allowance is the government, not the employment contract linking the worker to the employer. Example. Rule: It is established that the provision in Article 55 of Private Sector Labour Law No. 6 of 2010—applicable to the facts—and corresponding to Article 28 of Law No. 38 of 1964 concerning Labour in the Private Sector, that “Wage means the basic wage received by the worker, or which he ought to receive, in return for and by reason of his work, plus all components stipulated in the contract or the employer's regulations. Without prejudice to the social allowance and children's allowance prescribed pursuant to Law No. 19 of 2000 ........... the calculation of the wage shall include what the worker receives periodically in increments, bonuses, allowances, grants, gifts, or monetary benefits .......” indicates that the wage includes, in addition to the basic wage, everything paid to the worker and accruing to his assets by the employer regularly and continuously, upon which he relies in organizing his livelihood, whether in the form of increments, bonuses, allowances, grants, or monetary benefits. As for what is granted to the worker by someone other than the employer, such as the social allowance and children's allowance granted by the State to Kuwaitis working in the private sector pursuant to Article Three of Law No. 19 of 2000 concerning Support for the National Workforce and Encouraging It to Work in Non-Governmental Entities, these are not considered components of the wage on the basis of which the end-of-service gratuity is calculated, since the source of these allowances is the government pursuant to the provisions of Law No. 19 of 2000 concerning Support for the National Workforce, and not the employment contract linking the worker to the employer. Since the judgment under appeal departed from this view and awarded the respondent the difference in the end-of-service gratuity in light of adding these two allowances to the wage components on the basis of which this gratuity was calculated, it must be reversed in this regard. As for what the appellant raises concerning the calculation of the end-of-service gratuity, it is apparent from the report of the expert appointed in the action, which this Court finds reliable owing to the adequacy of his investigations and the soundness of the bases upon which he built his report, that the end-of-service gratuity payable to the respondent, in light of excluding the social allowance and children's allowance, amounts to 46714.106 dinars, whereas the appellant had determined an end-of-service gratuity for the respondent of 46720.599 dinars. Accordingly, the appellant had determined for him an amount exceeding his entitlement as an end-of-service gratuity. Since the respondent received this amount determined for him by the appellant—after deduction of his debts—pursuant to a discharge signed by him, which he did not challenge on any ground and which did not diminish his labour rights, it is therefore free from the invalidity prescribed by Article 115 of Law No. 6 of 2010, and the appellant is not liable for any amounts in favour of the respondent. Since the judgment under appeal ruled contrary to this view, it must be reversed and a fresh judgment rendered dismissing the action.