June 23, 2021 SCT - JUDGMENTS AND ORDERS
Claim No: SCT 127/2021
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
BEFORE H.E. JUSTICE MAHA AL MHEIRI
BETWEEN
LALITRAJ
Claimant
and
LAJWATI RESTAURANT
Defendant
| Hearing : | 13 June 2021 |
|---|---|
| Judgment : | 23 June 2021 |
JUDGMENT OF H.E. JUSTICE MAHA AL MHEIRI
UPON the Claim Form being filed on 27 April 2021
AND UPON a Second Hearing being held before H.E. Justice Maha Al Mheiri on 13 June 2021, with the Claimant in attendance and the Defendant’s representative failing to attend
AND UPON reviewing the documents and evidence submitted in the Court file
AND PURSUANT TO Rule 53.61 of the Rules of the DIFC Courts the (“RDC”)
IT IS HEREBY ORDERED THAT:
1. The Defendant shall pay the Claimant the amount of AED 63,714.92.
2. The Defendant shall pay the Claimant the Court fee in the amount of AED 1,274.30.
Issued by:
Ayesha Bin Kalban
SCT Judge and Deputy Registrar
Date of issue: 23 June 2021
At: 2pm
THE REASONS
Parties
1. The Claimant is Lalitraj (the Claimant), an individual filing a claim against the Defendant regarding his employment at the Defendant company.
2. The Defendant is Lajwati Restaurant (the Defendant), a company registered in the DIFC located Tower, DIFC, Dubai.
Background and Hearing
3. The underlying dispute arises over the employment of the Claimant by the Defendant pursuant to an offer letter dated 9 November 2019 (the “Employment Contract”). The Claimant was hired in the position of ‘Bartender’ with a monthly salary of AED 4,000 consisting of the following:
(a) Basic Allowance in the sum of AED 3,000; and
(b) Accommodation and transportation allowance in the sum of AED 1000.
4. On 25 March 2021, the Claimant filed his resignation due to unpaid dues, and served his notice until 10 June 2021.
5. On 27 April 2021, the Claimant filed a claim in the DIFC Courts’ Small Claims Tribunal (the “SCT”) claiming various sums set out as follows:
(a) Salary payment from December 2019 to April 2021 in the amount of AED 56,300;
(b) Payment in lieu of accrued but untaken annual leave for 45 days in the amount of AED 6,000;
(c) Flight allowance in the amount of AED 2,300;
(d) Payment in lieu of public holidays for 2020 and 2021 in the amount of AED 2,000; and
(e) End of service gratuity.
6. The parties met for a Consultation with SCT Judge Delvin Sumo on 26 May 2021 and 18 August 2019 but were unable to reach a settlement.
7. In line with the rules and procedures of the SCT, this matter was referred to me for determination, pursuant to a Second Hearing held on 13 June 2021 with the Claimant in attendance and the Defendant’s representative absent although served with notice.
8. RDC 53.61 of the Rules of the DIFC Courts stipulates that “if a defendant does not attend the hearing and the claimant does attend the hearing, the SCT may decide the claim on basis of the evidence of the Claimant only”.
Discussion
9. This dispute is governed by DIFC Employment Law No. 2 of 2019 (the “DIFC Employment Law”) in conjunction with the relevant Employment Contract.
10. I shall set out below each of the Claimant’s claims. As the Defendant has failed to file any defence to this Claim, the Court will determine this matter on the basis of the DIFC Employment Law and the Employment Contract.
Outstanding dues for the months December 2019 to April 2021
11. The Claimant is seeking payment for his outstanding dues for the months from December 2019 to April 2021, in the sum of AED 56,000, as his last working day was 10 June 2021. The amount claimed is the sum of the Claimant’s salary until April 2021, as the Claimant submits that he was not paid his full salary for the months between December 2019 to April 2021. The Claimant provided a breakdown of how much he was paid in each month and the pending amount owed, which amounts to AED 56,300.
12. Accordingly, the Defendant is ordered to pay the Claimant the amount of AED 56,300 for his outstanding dues for the days the Claimant worked during December 2019 to April 2021.
Payment in lieu of untaken annual leave
13. The Claimant claims an amount of AED 6,000 as the amount accrued against his untaken 45 days of annual leave accrued for the year 2020 until 10 June 2021. The Claimant claims this pursuant to Clause 2 of the Employment Contract, which reads as follows:
“30 days paid annual leave and an Air Ticket to country of citizenship every two years.”
14. The Claimant submits that he is entitled to 30 days for the year 2020, and 15 days for the course of the current year. The Claimant therefore claims 45 days of his annual leave to be paid to him by the Defendant.
15. Article 27 of the DIFC Employment Law which sets out that:
“Vacation Leave
(a) Subject to Article 30, an Employee who has been employed for at least ninety (90) days is entitled to paid Vacation Leave of twenty (20) Work Days in each Vacation Leave Year.
(b) An Employee is entitled to be paid their Daily Wage during Vacation Leave.
(c) An Employee is entitled to carry forward up to five (5) Work Days of accrued but untaken Vacation Leave into the next Vacation Leave Year for a maximum period of twelve (12) months after which any unused Vacation Leave shall expire.
(d) Vacation Leave is exclusive of Public Holidays to which an Employee is entitled.
(e) Unless otherwise agreed in writing by an Employee, and subject to Article 28(1), an Employee cannot receive payment in lieu of Vacation Leave.
(f) Unless otherwise agreed by an Employer, Vacation Leave cannot be converted to Sick Leave if an Employee is sick during any period of Vacation Leave.
Compensation in lieu of Vacation Leave
(1) Where an Employee's employment is terminated, the Employer shall pay the Employee an amount in lieu of Vacation Leave accrued but not taken up to and including the Termination Date calculated in accordance with Article 28(3).
(2) In the event that the Employee has taken more Vacation Leave than has accrued at the Termination Date, the Employer shall be entitled to deduct an amount calculated in accordance with Article 28(3) from any payments due to the Employee on the Termination Date.
(3) Compensation in lieu of Vacation Leave, or any amount owed by the Employee in respect of excess Vacation Leave taken, shall be calculated using the Employee's Daily Wage at the Termination Date.”
16. I agree with the Claimant’s submission that he is entitled to payment in lieu of accrued and untaken annual leave days, however, I disagree with the Claimant’s calculation for the number of days that he can carry forward to 2021. The Claimant is only entitled to carry forward 10 days from 2020. As found above, the Claimant’s last day with the Defendant is 10 June 2021, therefore, any annual leave that he has accrued will be calculated until that day.
17. As such, the Claimant is entitled to payment in lieu of 10 days for the year 2020, and 13.3 days in 2021. As such, I find that the Claimant shall be paid the amount of AED 2,746.18 (AED 4,000 x 12/260 = 184.61 x 23.3 = AED 4,301.41).
- 30 Days per year / 12 months = 2.5 days per month
- 2.5 Days x 5 months = 12.5 days
- 2.5 / 30 days = 0.08 x 10 days in June = 0.8
Flight Allowance
18. The DIFC Employment Law is silent on an employee’s entitlement to airfare in the form of an allowance. Such a benefit is common in employment relationships, and the general practice in this Court is to proceed with what is agreed upon by the parties in the agreement they have entered into.
19. The Claimant is seeking the amount of AED 2,300 pursuant to Clause 2 of the Employment Contract, which is stated above.
20. The wording set out in Clause 2 of the Employment Contract stipulates that the Claimant would not be entitled to airfare before completing 2 years which the Claimant failed to meet, and therefore I dismiss the Claimant’s claim for flight allowance accordingly.
Payment in Lieu of Public Holidays
21. The Claimant also argues that he is entitled to payment in lieu of days worked during Public Holidays in the year of 2020 and 2021 until his last working day in the sum of AED 2000. The Claimant has failed to specify which Public Holidays he wishes to claim payment against. The Court requested further submissions in relation to this claim which the Defendant failed to provide. I therefore dismiss the Claimant’s claim for payment in lieu of days worked in public holidays.
End of Service Gratuity and Contributions to Qualifying Scheme
22. Article 19 of the DIFC Employment Law stipulates the following:
“(1) An Employer shall pay to an Employee, within fourteen (14) days after the Termination Date:
a. all Remuneration…
b. where applicable, any Gratuity Payment that accrued prior to the Qualifying Scheme Commencement Date under Article 66(1) not transferred to a Qualifying Scheme under Article 66(6)
c. … ;”
23. Article 66 of the DIFC Employment Law states, where relevant, that:
“(1) An Employee who is not required to be registered with the GPSSA under Article 65(`), and who completes continuous employment of at least one (1) year with their employer, before or after the Qualifying Scheme Commencement Date is entitled to a Gratuity Payment for any period of service prior to the Qualifying Scheme Commencement Date on the termination of their employment. …
(2) An Employee’s Gratuity Payment shall be calculated as follows:
(a) an amount equal to twenty one (21) days of the Employee’s Basic Wage for each year of the first five (5) years of service prior to the Qualifying Scheme Commencement Date; and
(b) an amount equal to thirty (30) days for the Employee’s Basic Wage for each additional year of service prior to the Qualifying Scheme Commencement Date. …
…
(7) From the Qualifying Scheme Commencement Date an Employer shall, on a monthly basis, pay to a Qualifying Scheme, for the benefit of each Employee who is not an Exempted Employee, an amount equal to as least the Core Benefits, which shall be calculated as follows:
(a) five point eight three percent (5.83%) of an Employee’s Monthly Basic Wage for the first (5) years of an Employee’s service, inclusive of any period of employment of Secondment served to prior to the Qualifying Scheme Commencement Date; and
(b) eight point three three percent (8.33%) of an Employee’s Monthly Basic Wage for each additional year of service…
...”
24. The abovementioned clauses provide that an employer is required pay to an employee, within 14 days of the employee’s termination date, a gratuity payment, in addition to amounts equal to the core benefits set out by the DIFC Employment Law, such amounts to be paid into a Qualifying Scheme. The gratuity payment to be paid must be for any period of service prior to the Qualifying Scheme Commencement Date, which is defined in the Law to be 1 February 2020. Therefore, I find that the Claimant is entitled to his gratuity payment, as accrued until 31 January 2020, calculated below.
25. The Claimant’s basic wage is AED 3,000, and the gratuity payment is to be calculated against the period of service from the Claimant’s first working day with the Defendant until 31 January 2020. The Claimant worked from 9 November 2019, meaning the period of service to be calculated for gratuity is 83 days.
Gratuity = AED 3,000 basic wage x 12 months / 365 days = AED 98.63 per day
Gratuity for 83 days = 1.75 days / 30 = 0.05 per day x 83 days = 4.15 days x AED 98.63 = AED 409.31.
In accordance with the above, the Claimant is entitled to AED 409.31 for gratuity payment.
26. The parties have not provided any evidence to demonstrate that the Claimant has been enrolled into a qualifying scheme, nor has any evidence been provided to show that the Claimant would be exempted from being enrolled. In light of this, I order that the Defendant pay to the Claimant an amount equal to the minimum benefits set out by the DIFC Employment Law, which would reflect the contributions that the Defendant would have paid into the qualifying scheme had it complied with the requirements of the DIFC Employment Law. This is to be calculated as follows.
27. The Claimant’s employment with the Defendant was for the amount of 1 years, 3 months and 10 days. Taking into consideration the period of service undertaken by the Claimant prior to the commencement date of the Qualifying Scheme, the Claimant would be entitled to contributions for the period between 1 February 2020 to 10 June 2021, being the Claimant’s last working day I have determined previously in the course of this Judgment.
Between 1 February 2020 – 10 June 2021:
The Claimant’s monthly basic wage is AED 3,000 x 5.83% (being the minimum contribution amount defined by the Employment Law) = AED 174.9 per month x 15 months = AED 2,623.5.
Between 1 June 2021 – 10 June 2021:
AED 138.46 (being the Claimant’s daily basic wage) x 5.83%= AED 8.07 per day x 10 day = AED 80.7.
28. Therefore, in accordance with the above, the Claimant’s entitlement in regards to contributions that should have been made by the Defendant to a qualifying scheme is AED 2,704.2.
Conclusion
29. In light of the aforementioned, I find that the Defendant shall pay the Claimant the sum of AED 63,714.92.
30. I am of the view that, as the Claimant has been successful in some of his claims, he is entitled to recover some of the court fee applicable to the filing of this case. The Defendant shall therefore pay to the Claimant the amount of AED 1,274.30 for the Court fee.
