Kuwait Court of Cassation principle number 376

Summary: - A worker’s absence from work for 7 consecutive days or 20 non-consecutive days within a year. He may be deemed to have resigned. The provisions of Article (53) of Law No. 6 of 2010 concerning Labour in the Private Sector apply to calculation of the end-of-service gratuity where grounds therefor exist. Assessment of whether or not such grounds exist is a matter of fact. The court’s adoption of the expert’s report together with its grounds. It is thereafter not obliged to respond separately to objections directed against it. Its disregard of a litigant’s request to reopen the case for oral argument does not vitiate its judgment. Rule: Article 42 of Law No. 6 of 2010 concerning Labour in the Private Sector, applicable to the facts of the case, provides: “If a worker is absent from work without an acceptable excuse for 7 consecutive days or 20 non-consecutive days within a year, the employer may deem him to have resigned by operation of law. In such case, the provisions of Article (53) of this Law shall apply concerning the worker’s entitlement to an end-of-service gratuity.” This indicates, as stated in the Explanatory Memorandum, that an employer may deem a worker to have resigned if he is absent from work for 7 consecutive days or 20 non-consecutive days within a year, provided that the provisions of Article (53) concerning the rules for calculating the end-of-service gratuity apply where grounds therefor exist. Assessment of the existence or absence of such grounds is a question of fact falling within the exclusive province of the trial court, which has authority to ascertain and understand the facts of the case, assess the evidence and documents submitted therein, and adopt the expert’s report whenever it is satisfied with it and persuaded by the grounds on which it is based. Whenever the court relies on the expert’s report and takes it as the basis for deciding the case, that report is considered part of the judgment. It is therefore not obliged to respond separately to objections directed against it, because its adoption of the report together with its grounds indicates that it found nothing in those objections warranting a response beyond what the report contains. Nor is it at fault if it disregards a request to refer the case back for expert examination, so long as it finds in the papers sufficient material to form its conviction. Likewise, granting a litigant’s request to reopen the case for oral argument after it has been reserved for judgment falls within the trial court’s unrestricted discretion; its disregard of that request therefore does not vitiate its judgment.