April 12, 2017 court of first instance - Orders,Orders
Claim No: CFI 011/2017
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
AHMED MAJED MOHAMAD LUTFI KABBARA
and
EFG-HERMES UAE LIMITED
ORDER WITH REASONS OF JUSTICE TUN ZAKI AZMI
UPON reviewing the Claimant’s Part 8 Claim form
AND UPON reading the correspondence from the parties’ legal representatives
IT IS HEREBY ORDERED THAT:
1.The Claimant’s application to determine the claim on the papers is dismissed with costs.
2. This matter be fixed for a hearing inter partes before a judge.
3. The Claimant shall pay the Defendant’s costs, to be assessed if not agreed.
Issued by:
Maha Al Mehairi
Judicial Officer
Date: 12 April 2016
At: 12pm
SCHEDULE OF REASONS
1.This is quite a simple application i.e. whether an Order under Part 8 of the Rules of the DIFC Courts (“RDC”) should be made on the papers in respect of two of the three Orders sought i.e. disclosure of documents sought by the Claimant and a written statement of reason for dismissal of the Claimant from his employment. I have to decide whether there is likely to be a substantial dispute of facts. If there is then an Order under Part 8 cannot be made.
2. The Claimant is Mr Ahmad “Majed” Mohamad Lutfi Kabbara. He claims that he was employed as Director Asset Management (later promoted to Managing Director Asset Management) by EFG-Hermes UAE Limited from August 2014. Prior to that he was employed by EFG-Hermes KSA. In his Particulars of Claim however he uses the words “the Claimant (was) relocated to Dubai.” Consequently he claims that since August 2014 his employment is governed by the DIFC Employment Law.
3. He also claims that his employment was terminated by the Defendant effective on 25 October 2016 (the “termination date”). It seems termination of his employment came about as a result of the Defendant’s unilateral decision to provide the Claimant with notice of termination during a meeting that took place on 25 September 2016. The Claimant intends to issue a separate claim under RDC Part 7 in relation to his entitlements arising out of and in connection with the termination of his employment.
4. The Claimant also pleads that after the meeting that took place on 25 September 2016, there were discussions regarding the Claimant’s end of service entitlements, as well as cancellation of the Claimant’s resident visa in both the Kingdom of Saudi Arabia and the DIFC. He further claims that there were discussions relating to a written statement of the reasons for the Claimant’s dismissal and other miscellaneous matters arising as a consequence of the termination of the Claimant’s employment. It is in respect of the written statement of the reasons for his dismissal and matters relating to his termination that this Part 8 claim was filed. This plea is found in paragraphs 12 and 27 of the Particulars of Claim.
5. It was by an email dated 16 October at 16:41 that the Claimant specifically requested ‘a written notice of termination...including the reason for dismissal’. According to the Claimant this was the second occasion on which the Claimant requested the statement in writing and subsequently there were four other occasions where he requested the written statement. But these requests were to no avail until 2 February 2015, when the Defendant denied, by letter, the Claimant’s entitlement to receive a written statement and finally by letter dated 13 February 2015, when the Defendant suggested that the Claimant was not entitled to a written statement because his employment relationship was governed by the Kingdom of Saudi Arabia (KSA) Law and also because he was not dismissed but rather terminated on notice.
6. While this was going on the Claimant sought to have his resident visa with the Defendant cancelled or transferred to his new employer. According to the Claimant, in order to do so all that was needed was a declaration by the Claimant to the effect that he has not received his dues in respect of his salary, end of service, leaves, etc. from the Defendant and that he has no objection to transfer his DIFC employment visa. To this the Defendant expressed a view that the Claimant’s entitlements arose in connection with his employment with EFG-KSA. There was also a dispute as to whether the Claimant’s visa was transferred to “NewCo” (para 32 of the Particulars of Claim). There were further communications between the Claimant and the Defendant’s solicitors. The Defendant’s solicitors also claimed that the Claimant was required to sign a certification that he had received all of his dues before the visa could be transferred. After that there were more exchanges of correspondences between the solicitors of the two parties, which, for the purposes of this application, I do not need to address in detail.
7. Reading through the claim by the Claimant as alluded in the Particulars of Claim alone, one can see that there are already many areas of dispute between the Claimant and the Defendant. These disagreements of fact were raised by the Claimant in his own Particulars of Claim.
8. Emily Beirne of Gibson, Dunn and Crutcher LLP, solicitors for the Defendant, made a witness statement to reply to the allegations by the Claimant. According to the witness, she obtained the information contained in that statement from the Defendant’s Head of Human Resource and Head of Assets Management.
9. The first major dispute was whether the Claimant, on his date of termination/dismissal, was an employee of EFG-Hermes in its Saudi Arabian Office or whether he was employed at EFG-Hermes in its DIFC Office. I notice that even in the Particulars of Claim, the Claimant uses the word ‘relocated to Dubai’ (see para 7 of the Particulars of Claim). If he was employed by EFG-Hermes KSA, the question remains whether he can make claims under the DIFC Employment Law, albeit he had a DIFC employment visa.
10. According to the witness statement of Emily Beirne, the Claimant was an employee under Saudi Arabian Employment although he was allowed to work at the DIFC Office for his convenience. Ms Beirne contends that in early 2014 the Claimant requested permission to work from the DIFC Office and he also signed two employment contracts, one governed by the law of Saudi Arabia and the other by the law of the DIFC. There were also allegations that the Claimant had been criticising the senior management of EFG-Hermes and behaving in a disruptive manner. Hence whether he was dismissed or his service terminated by notice is an issue.
11. There are lengthy counter allegations by Ms Emily Beirne against the Claimant. Again I do not need to go into further detail regarding these counter allegations.
12. It is necessary for me to highlight that the statement by Ms Emily Beirne is a statement by the solicitor rather than the Defendant’s own employee. This in itself is a disputed matter i.e. as to whether Ms Emily Beirne’s statement can be accepted as proof of the facts.
13. For the purpose of this application all I need to determine is whether there are questions which are likely to involve substantial disputes of fact. And I find that even within the Claimant’s Particulars of Claim there are already substantial disputes of fact. These facts relate to the Order which the Claimant is seeking i.e. a written statement for the reasons for his dismissal. If there is a dispute as to whether the Claimant was employed under the KSA Law or the DIFC Law then there would be dispute as to the reason for the Claimant’s dismissal.
