May 08, 2019 court of first instance - Orders
Claim No. CFI-035-2018
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN:
RAMY BAHY HASSAN ABOUZEID
Claimant/Respondent
and
THE INDUSTRIAL GROUP LIMITED
Defendant/Applicant
ORDER WITH REASONS OF JUSTICE SIR JEREMY COOKE
UPON reviewing the Defendant/Applicant’s Application dated 21 March 2019 (the “Appeal Application”) seeking permission to appeal the Judgment of Justice Sir Jeremy Cooke’s Judgment dated 28 February 2018
AND UPON reviewing the Claimant/Respondent’s written submissions in opposition to the Applicant’s Appeal Application
IT IS HEREBY ORDERED THAT:
1.The application for permission to appeal is dismissed
2. The Defendant/Applicant shall pay the Claimant/Respondent his costs of the application to be the subject of assessment by the Registrar, if not agreed.
Issued by:
Ayesha Bin Kalban
Assistant Registrar
Date of Issue: 8 May 2019
At: 12pm
SCHEDULE OF REASONS
1.There are no realistic prospects of success on the appeal regardless of the concession made at first instance.
2. The concession was rightly made in the light of the terms of Article 18 of the Employment Law and the Court of Appeal authorities thereon. No agreement between parties to an employment contract can operate to prevent the application of Article 18. Frontline Development Partners Ltd v Asif Hakim Adil [2016] DIFC CA 006 is determinative on the point, as confirmed in Elseco v Pierre- Eric Lys [2016] DIFC CA 011. Parties cannot contract out of the terms of Article 18 which are of mandatory application in employment in the DIFC.
3. The Concession was made after due consideration, with time being given for the new lawyers representing the Defendant/ Applicant to gain familiarity with the papers and the issues, which were limited in compass in the light of the authorities which were discussed when the adjournment was granted.
4. The Court expressly found as a fact, at paragraph 25 of the Judgment, that, on the evidence, there was no oral agreement to defer the payment of EOS until cancellation of the visa and there was no allegation of any such agreement in writing. The evidence of Mr Zaghloul never suggested that he had reached any such agreement with the Claimant/ Respondent. Awareness on the part of the Claimant/ Respondent of the Applicant/ Defendant’s expectation could not amount to such an agreement either. There is no inconsistency in the findings of fact in the Judgment.
5. The basis for finding an agreement as submitted in paragraph 18 of the Applicant/ Defendant’s Amended Skeleton Argument has no foundation in the evidence. The exchange of correspondence did not amount to an agreement that any EOS payment be deferred, and visa extension and medical cover was not the subject of discussion. Deferment of EOS could not have been in contemplation at the time. Discussions at the end of August did not refer to deferment of EOS at all, as Mr Zaghloul’s evidence confirmed.
6. There is no force in the argument that the words “pay” and “fails to pay” in Article 18 carry anything other than their normal and ordinary meaning. Even if they can be seen as synonymous with “discharge of liability” or “failure to discharge liability”, that does not assist the Defendant/Applicant since the wording of Article 18, on that basis, requires discharge of a statutory liability within a prescribed period.
7. The application seeks to reargue a point already decided in the DIFC Court of Appeal and affirmed by it subsequently and to argue against a factual finding as to the absence of an agreement in circumstances where the Applicant/ Defendant’s own witness never testified that there was such an agreement.
