THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
In the name of His Highness Sheikh Mohammad Bin Rashid Al Maktoum, Ruler of Dubai
IN THE SMALL CLAIMS TRIBUNAL OF DIFC COURTS
Between
BAMBI
and
BALLARD
JUDGMENT
Parties
1. The Claimant is Bambi, Dubai, United Arab Emirates.
2. The Defendant is Ballard, DIFC, Dubai, United Arab Emirates.
Background
3. On 18 October 2011, the Claimant brought this claim before the Small Claims Tribunal (SCT) against the Defendant. On March 2008 the Claimant started working as an Associate in the Private Equity Department.
4. The Claimant was dismissed by Bambi on July 2011. No reasons were provided as to the Claimant's dismissal. When the Claimant requested reasons for the dismissal, HR informed the Claimant that management had been instructed not to disclose any details. The Claimant was forced to offer her resignation as HR suggested to the Claimant that if she did not offer her resignation, Ballard would provide a negative reference to her future employer. Shortly after, the Claimant sent a resignation letter dated July 2011 to Mr U. During this period the Defendant did not instruct the Claimant on the conditions of the notice period.
5. On August 2011 the Claimant withdrew her offer of resignation via email to Mr U stating that her resignation was forced in the pretence of disguising her termination and it was without reason and, therefore, unlawful. Furthermore, the Claimant continued working for the Defendant until they offered her a termination and notice period. The Claimant was informed by Mr U that her resignation was accepted as at August 2011.
6. On August 2011 the Claimant was asked to leave the premises of the Defendant with Security being instructed not to grant her further access to the office.
7. The Claimant did not receive her salary and other benefits for July/August from the Defendant and is requesting unpaid salary and benefits totalling AED 70,211 and she wished to be reinstated.
8. On November 2011 the Defendant submitted an application to defend the entire claim.
9. The Defendant advised that the Claimant resigned from her employment with Ballard on July 2011. She subsequently claimed to retract her resignation on August 2011 and the Claimant's retraction was not accepted by the Defendant.
10. The Defendant acknowledges that the Claimant was employed by Ballard as an Associate in the Private & Direct Equity Department by an Employment Contract dated March 2008. The Defendant denies the verbal dismissal of the Claimant on July 2011 and states that a decision was made by the Defendant internally to terminate the Claimant's employment.
11. The Defendant denies that the Claimant was forced to resign from Ballard and states that the Claimant was given a choice to either resign - being a positive effect or get terminated - hence considered as a negative effect.
12. The Defendant states the Claimant submitted a letter of resignation on July 2011 and the Claimant's Employment Contract provides (at clause 1.6.2) that the agreed notice period is three calendar months. Therefore, the Claimant's employment with Ballard would ordinarily terminate on October 2011. The Claimant took unauthorised vacation prior to receiving any acceptance of resignation and returned from the vacation asking for acceptance of resignation.
13. On August 2011 the Claimant allegedly retracted her resignation on the same day that Ballard formally accepted her letter of resignation stating her last day at Ballard would be 18 August 2011. The Claimant continued to work to 21 August 2011 until she was asked to leave by Security to avoid a potential risk due to the sensitivity of the job. The Claimant was paid three months' salary for the notice period as stated in her Employment Contract.
The Hearing
14. The Claimant attended in person while the Defendant was represented.
15. At the hearing the Claimant and the Defendant, by consent, agreed that the Defendant pay to the Claimant the sum of AED 143,000 on or before February 2012 as full and final settlement being 18 days' salary for August 2011, two months' notice period, end of service, compensation in lieu of vacation leave, one way air ticket for home country and personal loan.
16. Both parties agreed to submit their final summations on the unfair dismissal compensation issue before me to hear and determine this issue.
17. On 2 February 2012 I issued a Consent Order reflecting the parties' agreement.
18. The Claimant, in her final summation, stated that on 17 July 2011 as she returned from her leave she received a call from Mr U requesting her to come to Ballard's head office. When she arrived, Mr U informed her that the bank had decided to terminate her employment. The Claimant was surprised because she just finalised a major transaction that generated a profit of AED 11 million for Ballard's and was expecting to receive a promotion for her efforts. The Claimant questioned the reasons for her dismissal and Mr U explained that management had instructed him not to disclose any details. The Claimant stated that that the bank could not dismiss an employee without giving a reason. Mr U handed the Claimant a piece of paper and asked her to write her resignation but she refused until she knew the consequences. Mr U informed the Claimant that if she did not submit her resignation they would terminate her contract. The Claimant submitted her resignation to the bank on July 2011. The bank never informed her of the reasons of termination.
19. The Defendant states the Claimant submitted a letter of resignation on July 2011. The Claimant's Employment Contract provides (at clause 1.6.2) that the agreed notice period is three calendar months, therefore the Claimant's employment with Ballard would ordinarily terminate on 18 October 2011. The Defendant denies that the Claimant was forced to resign from Ballard. The Defendant stated that the Claimant continued to work to 21 August 2011 when she was asked to leave by Security to avoid a potential risk due to the sensitivity of the job.
The statements of the witnesses
First Witness: Mr U
20. On 17 July 2011 Mr U met with the Claimant and informed her that management decided to relieve her from her employment at Ballard, however, she had the option of resigning or getting terminated and that she would receive three months' notice salary. The Claimant negotiated more than three months' salary but Mr U referred her to the HR Policy which stated three months' notice salary is the maximum. She also requested and asked about the reference letter she would receive if she resigned or got terminated.
21. On 19 July 2011 Mr U received a scanned copy of her resignation by email from Ballard and it had been accepted by her Line Manager, Mr M.
Second Witness: MR. M
22. Mr M is the Managing Director of Ballard and he said that the Claimant personally brought her resignation letter to him on 19 July 2011 which was accepted by Mr M which was forwarded to Ballard HR Department for further action.
Unfair dismissal compensation
23. It is clear from the Employment Contract that the Claimant joined the Defendant in June 2006. However, the Claimant submitted her resignation to the bank on 19 July 2011 which was accepted by the Managing Director of Ballard, Mr M, who forwarded it on the same day to the Ballard HR Department for further action.
24. The Claimant's Employment Contract provides (at clause 1.6.2) that the agreed notice period is three calendar months, therefore, the Claimant's employment with Ballard would ordinarily terminate on 18 October 2011. For security reasons, the Bank asked her to leave the premises to avoid a potential risk due to the sensitivity of the job. The Claimant was paid for the notice period as stated in her Employment Contract. This was the part of parties' agreement.
25. In the present case I will determine the unfair dismissal compensation issue, while the other employment rights were settled by the parties as mentioned above.
26. The employer and employee relationship is regulated by the Employment Law 2005, which is a DIFC Law. It sets out at Article 3 all the statutory rights and protection of the employee and at Article 8 the minimum standard and requirements of employment.
27. Employment Law of 2005 covers every aspect of employment law. It makes no provision for an employee to claim for unfair dismissal, although it recognises an employee's right to claim for discrimination on the grounds of sex, marital status, race, nationality, religion, mental or physical disability under Article 56. At most, the Employment Law gives power to the Director of Employment Standards to administer the law by proposing Regulations to be made to include matters not dealt with by the Law. This is clearly seen from a reading of Article 63 (1) (g) which makes the following provisions:
"63 (1) The Director may propose Regulations to the Board of Directors of the DIFC Authority in respect of any matter that facilitates the administration of the Law or further the purpose of the Law, including but not limited to:
(g) The maximum compensation for discrimination or unfair dismissal."
28. The Employment Law makes provision for Regulations to be issued to provide rights for claims of unfair dismissal and, in the absence of such a Regulation, I consider that the Claimant cannot rely on the right to compensation for unfair dismissal at the present time.
FOR THE ABOVE MENTIONED REASONS IT IS ORDERED THAT:
1. The claim for unfair dismissal compensation against the Defendant is dismissed.
2. Both parties to pay their own costs.
H.E. Justice Omar Almuhairi
SCT Judge
Date of Issue: February 2011
At: 10am