December 08, 2022 SCT - Judgments and Orders
Claim No. SCT 384/2022
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE SMALL CLAIMS TRIBUNAL
BETWEEN
LIHART
Claimant
and
LUFANT
Defendant
REASONS FOR THE ORDER OF H.E JUSTICE NASSIR AL NASSER DATED 7 NOVEMBER 2022
UPON reviewing the Claimant’s Application No. SCT-384-2022/1 dated 2 November 2022 and amended on 3 November 2022 seeking a court order for the immediate cancellation of the Claimant’s employment visa, associated travel ban, and other relief to be quantified in due course (the “Application”)
AND UPON reviewing the Defendant’s response to the Application dated 4 November 2022
AND UPON hearing the parties on 7 November 2022, with the Claimant and the Defendant’s representative in attendance
IT IS HEREBY ORDERED THAT:
1. The Application is granted.
2. The Defendant shall lift the absconding order and cancel the Claimant’s employment visa.
3. The Defendant shall bear the cost of this application.
Issued by:
Hayley Norton
SCT Judge
Date of Issue: 8 December 2022
At: 3pm
SCHEDULE OF REASONS
1. The Claimant is Lihart (the “Claimant”), an individual filing a claim against his former employer.
2. The Defendant is Lufant, a company registered and located in the Dubai International Financial Centre (the “DIFC”) (the “Defendant”).
3. The Claimant was employed by the Defendant in the position of Senior Strategy Planning Executive pursuant to an employment agreement dated 1 February 2022 (the “Employment Agreement”).
4. On 28 September 2022, the Claimant resigned from the Defendant company by way of resignation letter.
5. On 27 October 2022, at the end of the Claimant’s 30-day notice period, he discovered that the Defendant had filed an absconding complaint which led to a travel ban being imposing upon him.
6. On 28 October 2022, the Claimant filed a claim with the DIFC Courts’ Small Claims Tribunal (the “SCT”) seeking a court order for the immediate lift of the absconding complaint and travel ban, cancellation of his employment visa and damages suffered as a result of the illegal and unjustified travel ban.
7. The Defendant submits that the Claimant failed to adequately serve his 30-day notice period. In addition, the Defendant submits that the Claimant has also failed to return the Defendant’s property as requested, including but not limited to, office furniture, the Company laptop, phone, server, tablet, cloud data and car, and has failed to surrender sensitive Company documents including, but not limited to, management accounts, sales report, contact details of buyers, supplier contracts and reports, profit and losses statements, audited financials, marketing plan, business strategy report, HR report, internal technology report, a list of business assets - physical and intellectual property- handover list of technology assets - including hardware and software non-exhaustive lists. The Defendant alleges that during the Claimant’s notice period, that is, during the period in which he was still under the sponsorship of the Defendant, the Claimant commenced employment with a direct competitor of the Defendant, Lactr Technologies Ltd (DIFC) (“Lactr”). The Defendant submits that the Claimant’s actions are in complete breach of UAE federal immigration law, DIFC employment law, and the Claimant’s contractual obligations, namely his post-termination restrictions, as detailed at Clause 8 of the Employment Contract. The Defendant also submits that the Claimant has breached the non-solicitation clause at 8.4 of the Employment Contract, by soliciting all of the existing employees and consultants of the Defendant to the newly incorporated company Lactr, causing significant damage to the Defendant.
8. The Defendant submits that by working with a competitor, the Claimant, in his capacity as a former director of the Defendant, has breached his fiduciary obligations towards the Defendant as per the Law of Obligations DIFC Law No.5 of 2005. The Claimant set up Lactr in July 2022 with the date of incorporation being 13 July 2022. He performed the same business activities while he was an active employee and director of the Defendant and is a named shareholder of Lactr without the written consent of the Defendant and in contravention of the Employment Contract.
9. Given that the Claimant failed to return the property and sensitive documents belonging to the Defendant as requested, and he commenced employment with a competitor, the Defendant, concerned about a potential breach of confidentiality and non-competition, filed for and successfully obtained an absconding order from the DIFC authorities against the Claimant on 26 October 2022. The Defendant submits that the absconding application and order is merited given the Claimant has acted unlawfully in commencing employment with Lactr while under the sponsorship of the Defendant, in contravention of the post-termination restrictions within the Employment Contract and the UAE immigration laws.
10. The Defendant filed an absconding complaint against the Claimant to impose a travel ban based on the reasons mentioned above. I, however, find that the Defendant should have filed a claim before the courts seeking alternative relief instead of filing an absconding complaint to impose a travel ban upon the Claimant which, in my view, is an abuse of the system.
11. I find that the Defendant failed to follow the proper procedure to file a claim in relation to the reasons it has provided above. If the Defendant wishes to file a criminal claim to impose a travel ban, then it ought to have have followed the proper process, following which the travel ban will be imposed based on the basis of an underlying criminal matter. If the Defendant had sought to file an injunction in the DIFC Courts, then it was at liberty to do so. However, the Defendant chose to file an absconding complaint to impose a travel ban upon the Claimant without providing the right reasons and following the right processes.
12. The absconding process is used in relation to immigration violations, which can be resolved by the Government Services, other than that, the Defendant should have followed the proper process as I have mentioned above.
13. For the reasons mentioned above, I find that the Defendant shall lift the absconding complaint filed against the Claimant and cancel the Claimant’s employment visa.
