Kuwait Court of Cassation principle number 390

Summary: - Dismissal of a worker and deprivation of compensation, payment in lieu of notice or end-of-service gratuity. Its cases. Article 41(a) of Law 6 of 2010 concerning Labour in the Private Sector. - Permissibility of dismissing a worker and depriving him only of payment in lieu of notice and compensation where he assaults a colleague, the employer or the employer's representative during and because of work. Article 41(b) of Law 6 of 2010 concerning Labour in the Private Sector. No requirement that the assault upon the employer constitute a crime or be serious or physical. Words or gestures suffice, provided they convey insult and disrespect. An example of the permissibility of dismissing a worker while depriving him of payment in lieu of notice, but not of the end-of-service gratuity, for verbally attacking the company's chief executive officer in a manner conveying insult and disrespect. Rule: It is established—in the jurisprudence of this Court—that where a litigant advances a defence which, if correct, would change the view taken of the case, it constitutes a material defence which the court must address, examine and express its opinion upon. Article 41 of Law No. 6 of 2010 concerning Labour in the Private Sector provides that: “Subject to the provisions of Article (37) of this Law, (a) the employer may dismiss the worker without notice, compensation or gratuity if the worker commits any of the following acts: 1- ....... 2- ........ 3-.. (b) The employer may dismiss the worker in any of the following cases: 1- ..... 2-...... 3- If he assaults a colleague, the employer or the employer's representative during or because of work. 4-.......... 5- In these cases, the dismissal decision shall not entail depriving the worker of the end-of-service gratuity.” This indicates that a worker is not deprived of compensation, payment in lieu of notice or the end-of-service gratuity unless he has been dismissed for one of the reasons set out in paragraph (a) of this Article. If, however, his dismissal is for one of the reasons set out in paragraph (b) of the same Article, including his assault upon a colleague, the employer or the employer's representative during or because of work, he is not deprived of the end-of-service gratuity, but is deprived only of payment in lieu of notice and compensation. In item 3 of paragraph (b) of the aforementioned Labour Law, the legislature did not require that the assault upon the employer constitute a crime or be serious or physical, since words or gestures suffice provided they convey insult and disrespect. That being so, it is established from the translated copies (not denied) of the investigation conducted by the appellant company with the respondent, and the statements they contain of the person named / ......, the witness to the incident, and the respondent's own admission, that he verbally attacked the company's chief executive officer in a manner conveying insult and disrespect. This occurred during work, entitling the company to dismiss him from work while depriving him of payment in lieu of notice, but not of the end-of-service gratuity. Since the carbon copies submitted by the appellant company establish that it paid the respondent his wage for September 2011 under the 2 cheques dated 5, 24/10/2011, and the latter did not deny this, its liability for the wage claimed is discharged. Since the challenged judgment departed from this view and awarded the respondent payment in lieu of notice and the wage for September 2011, it is defective in a manner requiring its partial cassation in this respect.