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Claim No. SCT 136/2022

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

In the name of His Highness Sheikh Mohammed Bin Rashid Al Maktoum, Ruler of Dubai

IN THE SMALL CLAIMS TRIBUNAL OF DIFC COURTS
BEFORE H.E. JUSTICE NASSIR AL NASSER

BETWEEN

LORENZO

Claimant

and

LILITH RESTAURANT AND LOUNGE

Defendant

JUDGMENT OF H.E JUSTICE NASSIR AL NASSER

UPON this Claim being filed on 14 April 2022

AND UPON a Hearing having been held before H.E Justice Nassir Al Nassir on 25 May 2022, with the Claimant and the Defendant’s representative in attendance

AND UPON reviewing the documents and evidence filed and recorded on the Court file

IT IS HEREBY ORDERED THAT:

1. The Defendant shall pay the Claimant the total sum of AED 44,343.61.

2. The Defendant shall provide the Claimant with an air ticket to his country of citizenship.

3. The Defendant shall pay the overstay fines imposed against the Claimant directly to the concerned Government Body.

4. The Defendant shall pay the Claimant the Court fee in the sum of AED 886.87.

Issued by:
Hayley Norton
SCT Judge
Date of issue: 31 May 2022
At: 10am

THE REASONS

The Parties

1. The Claimant is Lorenzo (the “Claimant”), an individual filing a claim against the Defendant regarding his employment at the Defendant company.

2. The Defendant is Lilith Restaurant and Lounge (the “Defendant”), a company registered in the DIFC.

Background and the Preceding History

3. The underlying dispute arises over the employment of the Claimant by the Defendant pursuant to an offer letter dated 14 December 2019 (the “Offer Letter”).

4. On 14 April 2022, the Claimant filed a claim with the DIFC Courts’ Small Claims Tribunal (the “SCT”) seeking various alleged employment entitlements in the sum of AED 55,040.

5. On 13 and 17 May 2022, a Consultation was held before SCT Judge Delvin Sumo, however the parties were unable to reach a settlement.

6. In line with the rules and procedures of the SCT, this matter was referred to me for determination, pursuant to a Hearing held on 25 May 2022.

The Claim

7. The Claimant’s monthly salary as per the Offer Letter was set out to be the sum of AED 1,800 per month.

8. The Claimant provided receipts of salaries (some of which reflected advance payments) provided by the Defendant to the Claimant for various months throughout 2020 and 2021.

9. The Claimant filed a Claim with the SCT seeking the total sum of AED 55,040 which consists of the following claims:

The Defence

10. The Defendant submits that the Claimant was working with another restaurant, namely, “Lout – Dubai” and was not an employee of the Defendant.

11. The Defendant also submits that the Claimant was not sponsored under its visa nor was he provided with an employment card.

12. The Defendant provided the court with a copy of the Claimant’s last salary receipt dated 5 December 2021 in the sum of AED 3,500.

Discussion

13. This dispute is governed by DIFC Law No. 2 of 2019, as amended by DIFC Law No. 4 of 2020 (the “DIFC Employment Law”) in conjunction with the relevant Offer Letter.

14. In support of his claim, the Claimant presented the Offer Letter which states that the Claimant is an employee of the Defendant.

15. In addition, the Claimant provided numerous salary receipts dated as follows:

16. I note that the Defendant only provided one salary receipt dated 5 December 2021 which suggests that the payment was made by “Lout” (however, there is no reference that the particular branch was located in Dubai). The Defendant failed to provide any other documentation to demonstrate that the Claimant was transferred to the Lout – Dubai.

17. The DIFC Public Register provides a list of all companies registered within the DIFC free zone (the “Register”), and upon review of the Register, it appears that ‘Lilith Restaurant and Lounge’ is the trading name for ‘Lout’.

18. In light of my findings above, and upon reviewing the Offer Letter and the various salary receipts provided by the Claimant, I am satisfied that he has sufficiently demonstrated that he was in fact an employee of the Defendant.

19. I shall set out each of the Claimant’s claims below and provide my determination as to whether the Claimant is entitled to these claims.

Salaries

20. The Claimant claims that he is entitled to salaries from the period of January 2020 to 22 March 2022 in the sum of AED 44,840.

21. The Defendant provided only one salary receipt dated 5 December 2021 in the sum of AED 3,500. However, the Claimant provided a number of salary receipts, combining to the total sum of AED 3,560 as salary payments for the period from 14 December 2019 until 22 March 2022.

22. Article 16(c) of the DIFC Employment Law states the following:

23. I find that the Defendant failed to keep a consistent record of the salary payments made to the Claimant. Therefore, I shall calculate the Claimant’s entitlements as follows: the Claimant’s total salary for 2 years and 3 months calculated to the sum of AED 48,600. As per the copies of the salary receipts provided by the Claimant, he has received the sum of AED 3,560, and as per the salary receipt provided by the Defendant, the Claimant also received a payment of AED 3,500. Therefore, the total amount to be paid by the Defendant to the Claimant is the amount of AED 41,540 (i.e. AED 48,600 – (AED 3,560 + AED 3,500).

Annual Leave and Public Holidays

24. The Claimant is seeking the following claims: (i) payment in lieu of accrued but untaken annual leave in the sum of AED 4,200; (ii) public holidays in the sum of AED 3,500; and (iii) and air ticket allowance in the sum of AED 2,500.

25. Clause 2 of the Offer Letter provides that “30 days paid annual leave and Air Ticket to country of citizenship every two years…”

26. Article 16(g) of the DIFC Employment Law states the following:

27. The Defendant failed to provide a record of the Claimant’s leave and the remaining balance. Therefore, I find that the Claimant is entitled to 30 days of paid annual leave pursuant to Article 28 of the DIFC Employment Law, which provides the following:

28. The Claimant’s daily wage is calculated as follows: AED 1,800 per month x 12 months / 260 days = AED 83.07 per day. The Claimant is entitled to 30 days of annual leave accrued but untaken for the first two years and 3.75 days for the three months worked in 2022. Therefore, the Claimant is entitled to AED 83.07 x 33.75 days = AED 2,803.61 for the annual leave accrued but untaken.

29. The Claimant also argues that he has worked on all of the public holidays and is therefore entitled to the sum of AED 3,500.

30. Article 16(g) of the DIFC Employment Law states the following:

31. The Claimant failed to provide the dates of the public holidays that he worked. In addition, the Defendant also failed to provide records as per Article 16 of the DIFC Employment Law.

32. Although I find that the Claimant is entitled to payment in lieu of the public holidays worked, he failed to provide any evidence to substantiate this claim nor did he provide any evidence of the days that he worked, therefore, I must dismiss this claim.

Flight Ticket

33. Clause 2 of the Offer Letter provides that “30 days paid annual leave and Air Ticket to country of citizenship every two years…”

34. The Claimant has completed work with the Defendant for the period of 2 years and 3 months. Therefore, I find that the Defendant is required to provide the Claimant with an air ticket to his country of citizenship.

Overstay

35. The Claimant provided evidence that he has encountered fines due to the Defendant’s failure to issue him an employment visa.

36. Therefore, I find that the Defendant shall settle the fines imposed against the Claimant directly to the concerned Government Body.

Conclusion

37. In light of the aforementioned, I find that the Defendant shall pay the Claimant the total sum of AED 44,343.61.

38. The Defendant shall provide the Claimant with an air ticket to his country of citizenship.

39. The Defendant shall pay the overstay fines imposed against the Claimant directly to the concerned Government Body.

40. The Defendant shall pay the Claimant the Court fee in the sum of AED 886.87.