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
BEFORE SCT JUDGE SHAMLAN AL SAWALEHI
BETWEEN
CARRICK
and
CARRIE
Hearing: 3 July 2013
Judgment: 22 July 2013
JUDGMENT OF SCT JUDGE SHAMLAN AL SAWALEHI
UPON hearing the Claimant and the Defendant
AND UPON reading the submissions and evidence filed and recorded on the Court file
IT IS ORDERED THAT:
1. The Defendant shall pay the Claimant the sum of AED 4,945.
2. The Defendant shall pay the Claimant the court fees of AED 202.
The reasons:
Parties
1. The Claimant is Carrick
2. The Defendant is Carrie
Background and the preceding history
1.The Claimant alleged that she had been employed by the Defendant from 13 November 2011 until the date of her resignation being 8 June 2013.
2. The Claimant requested that the Defendant pay her that which she was entitled to under her Employment Contract and the DIFC Employment Law. The Defendant had refused to pay the Claimant, which led the Claimant to file this case before the Court.
3. No settlement was reached by the parties at the end of the consultation and, consequently, the case was sent for adjudication. On 3 July 2013 I heard both parties' submissions.
Particulars and Defence
4. In her Particulars of Claim, the Claimant argued that the Defendant refused to pay her the full outstanding amounts following her resignation. The outstanding amounts include her wages got eight days in the month of June 2013, end of services gratuity payment, vacation payment, refund of unauthorized deduction of salary and a penalty for daily wage.
5. In its Defence, the Defendant argued that, although the Claimant was entitled to eight days of wages for the month of June 2013, end of services gratuity payment and vacation payment which calculated to equal to AED 4,945, but the Defendant owed the Claimant the amount of AED 4,650 being the total amount of what the Defendant had spent on providing her with employment Visa, a flight ticket, a vaccination and cost of training in food safety at Becker.
Finding
6. The issue of dispute between the parties in this case is related to the waiver of the requirements of the Employment Law in the DIFC and whether this waver has effect in a case where an employee waives his/her right to not be charged for hiring him/her in the DIFC.
7. Article 10 of the Employment Amendment Law No.3 of 2012 of DIFC Law No.4 of 2005 (" the Employment Law") , reads as follows:
"(1) the requirements of this Law are minimum requirements and a provision in an agreement to waive any of those requirements, except where expressly permitted under this Law, has no effect. (2) Noting in this Law precludes an employer from providing in any contract of employment terms and conditions of employment that are more favorable to the employee than those required by this Law"
8. Article 20 (1)(a) of the employment Law , reads as follows:
"A person shall not request, charge or receive, directly or indirectly, from a person seeking employment a payment for: (a) employing or obtaining employment for the person seeking employment."
9. It is very obvious on the face of the above cited articles that the general rule in Employment Law is that an employee cannot waive any of the requirements stated in the Law, including the prevision stating that an employee cannot be charged for their own hiring, unless it is expressly permitted by this Law to be waived. For example article 58(3) gives the employee the right to waive his right for notice period. Article 20(1)(a), however, clearly states that employees shall not be charge or requested to pay directly or indirectly for obtaining his/her employment, which would include the visa cost and traveling cost of the employee.
10. On the other hand, the Law would accept any terms and conditions of an employment contract that differs from those required by employment law if such terms and conditions are more favorable to the employee and not the employer. In other words, if the employee had agreed in his/her employment contract to waive any of his rights as required by the employment law, then such an agreement will have no effect, unless the employment law expressly accepts such waiver .
11. I have reviewed the employment contract which was signed by the Claimant on 13 November 2011, which reads at paragraph 3 as follows:
"If the employee decides to resign during the first two years under contract, she/he will bear the cost that the employer incurred for granting the employee a visa, including the necessary travel abroad for obtaining the visa."
12. I am of the view that the term of the above cited employment Contract has no effect and that the employee shall not bear the cost that the employer incurred which related to the employee's visa and traveling abroad if she resign during the first two years, on the basis that such a provision is not more favorable for the Claimant. Therefore, this provision has no effect on Article 10(a) of the Employment Law.
13. It would be very difficult to agree with the Defendant that its deduction of the Claimant's end of contract benefits is an authorised deduction in accordance with Article 19 of the Employment Law, because it supposed that the deducted amount had been identified and well known to the employee in advance and earlier to give his acceptance in writing.
14. In addition to that, I have a strong believe that the employee is not the only beneficiary of any cost related to obtaining employment visa, travel abroad to obtain visa or training, as the employer also benefits from such cost and receive employee's services. Therefore, it would be unreasonable to classify such cost as expenses incurred by the employee alone.
15. Furthermore, I had directed the Defendant to file supporting documents regarding the alleged visa, traveling and training costs of his employee (the Claimant), but it seems to me that the Defendant had failed to submit any documents to approve the alleged costs, which had led the Claimant in her Claim form to disagree with alleged cost and consider it as extraordinarily high cost and disproportionate to her monthly salary of AED 1,800.
16. In light of the above circumstances, I am of the view that the alleged acceptance of the Claimant to bear the costs has no effect. Therefore, the Claimant is entitled to her end of employment contract as calculated and confirmed by the Defendant, namely the sum of AED 4,945 in addition to the Court fees for this claim.
17. I should add that I find that the evidence submitted by the Claimant regarding unauthorized deductions from her salary and a penalty for daily wage are neither sufficient nor reasonable to establish that the Defendant is contractually or legally liable to pay any extra amount beyond that which has been offered by the Defendant in its Final Settlement Letter and decided in this Order at paragraph 15 above.
Shamlan Al Sawalehi
Date of Issue: 22 July 2013
At: 1pm