Violation Undermining Legal Security... Suspension of Employee's Salary Without Legal Basis
In a study titled “Rulings on the Suspension of Salaries in Administrative Entities: A Foundational Legal Study,” Dr. Bouabbas: Legal Security… A Guarantee for the Stability of Rights
Court of Cassation: Employees’ Financial Rights Are Acquired
Salary Cannot Be Suspended Without Legal Basis; Commencement of Work Implies Entitlement
Absence from Work Does Not Justify Full Suspension of Salary
Civil Service Law Specifies Circumstances Affecting Salary
Administrative Routine Does Not Justify Depriving an Employee of Their Livelihood
Legal Advisor Dr. Kazim Bouabbas emphasized that salary is among the most important financial rights guaranteed by law to public employees. It is the compensation received in exchange for performing their official duties and represents the primary guarantee for securing a decent standard of living for the employee and their family. Therefore, the state, through its legislation, is keen on establishing financial benefits for workers in the public service as one of the elements of job stability.
Dr. Bouabbas stated in a foundational legal study titled “Rulings on the Suspension of Salaries in Administrative Entities,” which he dedicated to “Al-Siyasa,” that administrative jurisprudence has confirmed that an employee, by virtue of their position, enjoys a set of rights and benefits, with salary taking precedence. This is because it is the compensation that motivates the employee to accept employment in the service of the state.
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He added: “An employee cannot be compelled to sign the attendance register if they are already bound by the fingerprint system approved by the Civil Service Bureau, as this constitutes an overreach of established regulations and a departure from the principle of legality, in addition to undermining the relationship of mutual respect that should prevail between the administrative superior and their subordinates.”
The following is the text of the study:
First: The state establishes material benefits for employees, out of a desire to guarantee a decent standard of living for those serving it. By virtue of their position, employees enjoy a range of rights and benefits, which constitute the consideration for which they accept entering the service of the state. Salary comes at the forefront of these benefits and rights.
Second: Salary is a sum of money that an employee receives from the state on a regular basis in exchange for performing their official duties. It includes all financial amounts or in-kind benefits to which they are entitled under laws and regulations, encompassing the basic salary, allowances, various bonuses, incentives, and other benefits.
See “Principles of Administrative Law” by Dr. Turki Al-Mutairi.
The Kuwait Court of Cassation has ruled: “…An employee, with regard to financial rights, holds an independent legal status that generates acquired rights which cannot be infringed upon. The administration’s claim of the absence or exhaustion of financial appropriations cannot stand as a barrier to fulfilling these rights, since providing financial appropriations is its responsibility and duty.”
Appeal No. 1257 of 2005, Administrative Session, 27/2/2007.
Third: The protection afforded to salary is accompanied by another form of protection known as “legal security.”
The term “security,” in its simple definition, refers to the feeling of safety, stability, and absence of fear. States make it a goal for their systems, such as livelihood security and social security. It means the stability and firmness of the legal rules governing actions and legal statuses, thereby ensuring that they are not violated or infringed upon.
See “Doctoral Thesis titled ‘Legal Security of Rights’” by Dr. Fahima Belhamzi.
Fourth: Given that Law Decree No. (15) of 1979 concerning the Civil Service System and the Decree issued on 4/4/1979 concerning the Civil Service System have established a comprehensive employment system, the following articles stipulate:
Article No. 18: “An employee is entitled to their salary from the date they assume their duties.”
Article 20: “No deduction shall be made, nor any attachment imposed, on amounts payable by the Government to an employee in any capacity, except to satisfy a court-ordered alimony obligation, to settle amounts owed by the employee to the Government in connection with the performance of his duties, or to recover funds disbursed to him without legal justification. In these two cases, the amount deducted from the employee’s entitlement shall not exceed one-half of it, and alimony debts shall take precedence in case of competing claims.”
Article 30: “An employee shall be suspended from duty in the following cases:
1. If the interests of investigation or public interest so require. Suspension shall be by reasoned decision for a period not exceeding three months, which may be extended for a similar period, after which the employee shall resume his duties. If the suspension is for the interests of investigation, half of his salary shall be withheld and shall not be refunded unless his non-liability is established or he is penalized with a warning or a salary deduction not exceeding one week.”
Article 81 of the Civil Service System Decree, issued on 4/4/1979, stipulates that “if an employee is absent from work without permission, even if such absence occurs immediately after an authorized leave, he shall be deprived of his salary for the duration of his absence…”
Article 2 of Decision No. 41 of 2006, issued by the Civil Service Council regarding the rules, provisions, and regulations of official work, states that “the term ‘salary’ in the context of applying these two systems refers to the basic salary, social allowance, allowances, bonuses, and additional increments linked to the salary, which are paid in full or reduced proportionally thereto. The daily wage for both systems is calculated on the basis that a month consists of thirty days.”
Unlawful Deprivation
In light of the foregoing, it is evident that an employee is entitled to the salary prescribed for the position he holds from the date he assumes the duties of that position. He may not be deprived of this salary except in accordance with the circumstances stipulated by law, in specific cases enumerated exclusively, which cannot be analogized to or expansively interpreted. Any deprivation of salary must be limited to the portion whose withholding is legally permitted for the employee, provided that the legal and factual grounds justifying such withholding are present.
The circumstances under which half of an employee’s salary may be withheld do not apply to cases where no decision has been issued suspending the employee from work, whether for investigative or public interest reasons. Therefore, such a measure constitutes a violation of the law and an abuse of authority.
See: Prof. Dr. Adel Al-Tabatabai, Commentary on the Civil Service Law.
Furthermore, withholding an employee’s salary while he continues to perform his duties contradicts legal provisions, as long as he is actively carrying out his work.
It is also impermissible to compel him to sign an attendance register as long as he complies with the fingerprint attendance system mandated by Civil Service Council decisions. Such compulsion constitutes an abuse of authority, given his adherence to established systems and laws; otherwise, it would violate the principles of justice and undermine the mutual respect that should characterize the relationship between the employee and his supervisor or direct manager.
Consequently, it is entirely impermissible to withhold an employee’s entire salary under any circumstances, without legal or factual justification, or due to administrative routine or ignorance of the law.
Moreover, financial affairs departments within administrative entities must, before taking any action, verify whether the suspension decision complies with the law. Depriving an employee of his full salary constitutes an infringement on his livelihood, and the Ministry bears responsibility for compensating the worker or employee for such error—a mistake we hope administrative entities will avoid.
Additionally, absence from work does not justify deprivation of salary for the days of absence, as the administrative entity has the option to regularize the absence by deducting it from the employee’s leave balance or by deducting the wages for the days of absence.
In short, when the legislator establishes a legal rule as a general principle, it provides for various alternative measures, such as salary deductions.
An administrative authority may resort to salary deductions only in cases of extreme necessity, where the administrative head, faced with a violation, has the option to apply graduated disciplinary measures less severe than salary deduction or suspension. Salary deductions or suspensions may not be imposed unless other measures are appropriate for the offense committed, and such actions must not be transformed into punitive sanctions. All measures must comply with applicable legal provisions and regulatory controls.
