October 13, 2022 SCT - Judgments and Orders
Claim No: SCT 327/2022
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
LAMONT
Claimant
and
LAPIS
Defendant
| Hearing : | 6 October 2022 |
|---|---|
| Judgment : | 13 October 2022 |
JUDGMENT OF H.E. JUSTICE MAHA AL MHEIRI
UPON the Claim Form being filed on 1 September 2022
AND UPON a Hearing being held before H.E. Justice Maha Al Mheiri on 6 October 2022, with the Claimant and the Defendant’s representative in attendance
AND UPON reviewing the documents and evidence submitted in the Court file
IT IS HEREBY ORDERED THAT:
1. The Defendant shall pay the Claimant the amount of AED 33,748.43.
2. The Defendant shall pay the Claimant the Court fee in the amount of AED 674.97.
3. The Defendant shall cancel the Claimant’s visa.
4. The parties shall, by no later than 4pm on Monday, 17 October 2022, provide the Court with 3 quotations showing the pricing of an economy round-trip flight ticket to Nigeria.
Issued by:
Hayley Norton
SCT Judge
Date of issue: 13 October 2022
At: 3pm
THE REASONS
Parties
1. The Claimant is Lamont (the “Claimant”), an individual filing a claim against the Defendant regarding his employment at the Defendant company.
2. The Defendant is Lapis (the “Defendant”), a company registered in the DIFC located, 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 17 October 2019 (the “Offer Letter”), and an employment contract dated 28 December 2019 (the “Employment Contract”). The Claimant was hired in the position of ‘Cook General’ with a monthly salary of AED 6,000 consisting of the following:
(a) Basic salary in the sum of AED 4,000; and
(b) Accommodation and transportation allowance in the sum of AED 2,000.
4. On 13 August 2022, the Defendant terminated the Claimant’s employment with immediate effect due to the Claimant wanting to introduce a new menu to the restaurant.
5. On 1 September 2022, the Claimant filed a claim in the DIFC Courts’ Small Claims Tribunal (the “SCT”) claiming various sums set out as follows:
(a) Salary payment for 13 days in August in the amount of AED 2,600;
(b) Payment in lieu of 38 accrued but untaken public holidays in the amount of AED 9,500;
(c) Payment in lieu of annual leave for 2019 and 2022 in the amount of AED 18,000;
(d) End of service gratuity;
(e) 3 months compensation in the amount of AED 18,000 for unfair dismissal; and
(f) Flight ticket to the Claimant’s home country
6. The parties met for a Consultation with SCT Judge Maitha AlShehhi on 14 September 2022 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 Hearing held on 6 October 2022 with the Claimant and the Defendant’s representative in attendance.
Discussion
8. This dispute is governed by the DIFC Law No. 4 of 2021 (Employment Law Amendment Law) (hereafter the “DIFC Employment Law”) in conjunction with the relevant Employment Contract.
9. I shall set out below each of the Claimant’s claims and the Defendant’s reply to each of the Claims. For the matters that the Defendant failed to provide evidence to support their defence the Court shall determine the matter on the basis of the DIFC Employment Law and the Employment Contract.
Outstanding salary for 13 days in August
10. The Claimant is seeking payment for his outstanding salary in the sum of AED 2,600 for 13 days worked in August.
11. The Defendant submits that the Claimant received his salary until 13 August 2022, the Defendant relies upon a payment slip signed by the Claimant dated 13 August 2022 in the amount of AED 6,000 (the “13 August Payment Slip”). In addition, the Defendant submits that it requested the Claimant to work his notice period but the Claimant refused, as such the Claimant is not entitled to any payment for a notice period.
12. After review of the submissions filed by the Defendant, I find that the 13 August Payment Slip is in fact confirmation of salary payment for the month of July. I have made this finding based on the below. The 13 August Payment Slip states as follows:
“Being salary paid AED 6000 to Lamont for the month of july 2022DTD-13-Aug-2022remaining (sic) balance till 13-Aug-2022 is zero”
13. Accordingly, the Defendant is ordered to pay the Claimant the amount of AED 3,599.96 for his outstanding salary for the 13 days the Claimant worked in August 2022.
AED 6,000 x 12 months / 260 = AED 276.92 daily wage
276.92 x 13 days = AED 3,599.96
3 months’ notice period
14. The Claimant claims the sum of AED 18,000 as three months’ compensation for unfair dismissal and submits that he was dismissed without a notice period.
15. The Defendant submits that the Claimant was terminated by the manager of the Defendant and was informed to give one month notice. As per the Employment Contract the Claimant was given one month notice to serve but he did not attend work.
16. There is no evidence provided by the Claimant to demonstrate that he was dismissed unfairly. Even if there was evidence to prove such a claim, there is no remedy under the DIFC Employment Law to provide compensation to an employee who was unfairly dismissed.
17. As per Article 62(1) of the DIFC Employment Law:
“62. Minimum notice periods
(1) An Employer or an Employee may terminate an Employee’s employment without cause in accordance with this Article.
(2) Subject to Articles 62(3), 62(4), 62(6) and 63, the written notice required to be given by an Employer or Employee to terminate the Employee’s employment shall not be less than:
(a) seven (7) days, if the period of continuous employment of the Employee is less than three (3) months, including any period of Secondment;
(b) thirty (30) days, if the period of continuous employment of the Employee is in excess of three (3) months but less than five (5) years, including any period of Secondment; or
(c) ninety (90) days, if the period of continuous employment of the Employee is in excess of five (5) years, including any period of Secondment.”
18. “An Employer or an Employee may terminate and Employee’s employment without cause in accordance with this Article”. The only condition for such a termination is that the employer shall provide the employee with a notice period.
19. As the Claimant was terminated without any evidence or provided with written cause of termination, the Court is of the view that the criteria set out above has been met and the Claimant shall be entitled to 1 month notice in accordance with the DIFC Employment Law and the notice period that is applicable if an employee continues working for 2 continuous years.
20. Therefore, I find that the Claimant is entitled to AED 6,000 for payment in lieu of a one-month notice period. As such the Claimant’s last working day shall be treated as 13 September 2022.
Payment in lieu of untaken annual leave
21. The Claimant claims an amount of AED 18,000 as the amount accrued against his untaken 90 days of annual leave accrued for the year 2019 until 13 August 2022. The Claimant claims this pursuant to Clause 12 of the Employment Contract, which reads as follows:
“12. Annual Leave Entitlement: In addition to United Arab Emirates public holidays (as declared for the private sector) the Employee will be entitled to 30 (thirty) calendar days of annual leave. Annual leave should be taken with the least disruption of the operation and prior approval must be obtained from your Manager and HR Manager. Annual leave should be taken during the current calendar year it is earned, unless required by Operation and justified by General Manager and approved by Managing Partners and Group HR. Otherwise leave balance cannot be cashed and cannot be carried forward.”
22. The Claimant submits that he is entitled to 30 days per year, for the years 2019 to 2022. The Claimant therefore claims 90 days of his annual leave to be paid to him by the Defendant. In reply, the Defendant argues that all pending annual leave for previous years were paid to the Claimant and there is zero balance from 2019 to 2021. The Defendant does state that the Claimant has not availed his 2022 annual leave.
23. Article 27 of the DIFC Employment Law which sets out that:
“Vacation Leave
(1) 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.
(2) An Employee is entitled to be paid their Daily Wage during Vacation Leave.
(3) 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. The amount of accrued but untaken Vacation Leave to be carried forward may be agreed between the Employer and Employee, provided that nothing shall preclude an Employee from rolling over at least five (5) Work Days per Vacation Leave Year.
(4) Vacation Leave is exclusive of Public Holidays to which an Employee is entitled.
(5) Unless otherwise agreed in writing by an Employee, and subject to Article 28(1), an Employee cannot receive payment in lieu of Vacation Leave.
(6) 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.”
24. Although the Defendant argues that the Claimant availed all of his annual leave from 2019 to 2021, it has not provided any proof to support this statement. In the absence of such evidence, I shall rely upon the Claimant’s Employment Contract which reads as follows:
“Annual leave should be taken during the current calendar year it is earned, unless required by Operation and justified by General Manager and approved by Managing Partners and Group HR. Otherwise leave balance cannot be cashed and cannot be carried forward.”
25. As such, the Claimant is entitled to payment in lieu of 21.04 days for the year 2022, as his last working day is 13 September 2022. As such, I find that the Claimant shall be paid the amount of AED 5,826.40 (AED 276.92 daily wage x 21.04 = AED 5,826.40).
- 30 Days per year / 12 months = 2.5 days per month
- 2.5 Days x 8 months = 17.5 days
- 2.5 / 30 days = 0.08 x 13 days in September = 1.04
Flight Allowance
26. 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 Employment Contract they have entered into.
27. Clause 13 of the Employment Contract stipulates as follows:
“13. Airline Ticket Entitlement: Upon completion of 24 (Twenty Four) months uninterrupted service with the Company, the Employee will be entitled to 1 (one) round-trip economy ticket and in each subsequent period of 24 (Twenty Four) months, to the nearest international airport destination in your home country to coincide with the Employee's annual leave. The amount for the ticket, which will be set on a yearly basis, will be transferred to the employee on his/her anniversary month.”
28. In light of this, I find that the Claimant is entitled to his airfare in the manner set out in the Employment Contract. As provided above, the Claimant did not quantify this claim and therefore, the parties shall provide the Court with 3 quotations showing the pricing of an economy round-trip flight ticket to the Claimant’s home country, Nigeria, and accordingly the Court will decide on an amount to be paid to the Claimant in lieu of airfare.
Payment in Lieu of Public Holidays
29. The Claimant argues that he is entitled to payment in lieu of 38 days worked during Public Holidays in the year of 2019 until his last working day, in the sum of AED 9,500. The Claimant has failed to specify which public holidays he wishes to claim payment against but did provide a picture of a document from his shift schedule that shows 38 days of public holidays written next to his name.
30. In reply, the Defendant denies that the Claimant is entitled to any payment for public holidays and states that he has been paid all public holidays. The Defendant provided the court with a number of different payment slips that do not appear to specify the amount paid to the Claimant nor confirm the purpose of why the payment was made. The Court requested further submissions in relation to this claim and sought a breakdown of the payment slips to help the Court understand which days have been paid to the Claimant, however, the Defendant failed to provide the requested breakdown. It is the employer’s duty to keep a record of their employees’ attendance, as well as days worked, annual leave taken, and public holidays worked. The Defendant failed to fulfil its duty towards the Claimant by keeping such a record.
31. Article 16(g) of the DIFC Employment Law states the following:
“Payroll Records
(1) An Employer shall keep record of the following information:
(g) the dates of Public Holidays taken by the Employee and the Daily wage paid by the Employer in respect thereof”
32. Therefore, I find that the Claimant shall be paid the amount of AED 10,522.96 as payment for the 38 Public holidays worked (AED 276.92 daily wage x 38 = AED 10,522.96).
End of Service Gratuity and Contributions to the Qualifying Scheme
33. 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)”
34. 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. …
35. 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.
36. The Claimant’s basic wage is AED 4,000, 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 17 October 2019, meaning the period of service to be calculated for gratuity is 107 days.
Gratuity = AED 4,000 basic wage x 12 months / 365 days = AED 131.50 per day
Gratuity for 107 days = 1.75 days / 30 = 0.05 per day x 107 days = 5.35 days x AED 131.50 = AED 703.53.
37. In accordance with the above, the Claimant is entitled to AED 703.53 for gratuity payment.
38. 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.
39. The Claimant’s employment with the Defendant was for the period of 2 years, 6 months and 13 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 13 September 2022, being the Claimant’s last working day.
Between 1 February 2020 – 13 September 2022:
The Claimant’s monthly basic wage is AED 4,000 x 5.83% (being the minimum contribution amount defined by the Employment Law) = AED 233.2 per month x 30 months = AED 6,996.
Between 1 September 2022 – 13 September 2022:
AED 131.50 (being the Claimant’s daily basic wage) x 5.83%= AED 7.66 per day x 13 days = AED 99.58.
40. 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 7,095.58.
Conclusion
41. In light of the aforementioned, I find that the Defendant shall pay the Claimant the sum of AED 33,748.43.
42. 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 674.97 for the Court fee.
