May 05, 2023 SCT - JUDGMENTS AND ORDERS
Claim No. SCT 063/2023
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
MAHOR
Claimant
and
MAKRUN
Defendant
| Hearing : | 26 April 2023 |
|---|---|
| Further Submission : | 27 April 2023 |
| Judgment : | 5 May 2023 |
JUDGMENT OF H.E JUSTICE NASSIR AL NASSER
UPON this Claim being filed on 9 February 2023 and amended on 22 March 2023
AND UPON a hearing having been held before H.E Justice Nassir Al Nassir on 26 April 2023, 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 42,501.
2. The Defendant shall pay the Claimant the Court fees in the sum of AED 850.02
Issued by:
Hayley Norton
SCT Judge and Assistant Registrar
Date of issue: 5 May 2023
At: 10am
THE REASONS
The Parties
1. The Claimant is Mahor (the “Claimant”), an individual filing a claim against the Defendant regarding his employment at the Defendant company.
2. The Defendant is Makrun (the “Defendant”), a company registered and located in the DIFC, Dubai, the UAE.
Background and the Preceding History
3. The underlying dispute arises over the employment of the Claimant by the Defendant pursuant to an employment agreement dated 1 July 2022 (the “Agreement”). As per the Agreement, the Claimant’s joining date is set out to be 14 July 2022.
4. The Claimant signed the Agreement on 23 August 2022 and his employment visa was issued on 7 September 2022.
5. On 9 February 2023, the Claimant filed a claim with the DIFC Courts’ Small Claims Tribunal (the “SCT”) seeking various employment claims in the sum of AED 42,501.
6. On 22 March 2023, the Claimant amended the Defendant’s name in the claim form.
7. On 17 April 2023, a Consultation was held before SCT Judge Delvin Sumo, however the parties were unable to reach a settlement.
8. In line with the rules and procedures of the SCT, this matter was referred to me for determination, pursuant to a hearing held on 26 April 2023, at which the Claimant and the Defendant’s representative attended (the “Hearing”).
9. The Defendant failed to file an Acknowledgement of Service, however, filed its defence on 24 April 2023.
The Claim
10. The Claimant’s monthly salary as per the Agreement was set out to be in the sum of AED 17,000 (AED 10,000 basic salary and other allowances in the sum of AED 7,000).
11. On 23 January 2023, the Claimant was terminated by the Defendant. Therefore, the Claimant filed a claim seeking his end of service entitlements in the sum of AED 42,501 which consists of the following claims:
(a) Salary from 1 to 24 January 2023 in the sum of AED 13,600.
(b) One month notice in the sum of AED 17,000.
(c) Payment in lieu of 5 days accrued but untaken public holiday in the sum of AED 2,835.
(d) Accrued but untaken annual leave from the period of 14 July 2022 to 24 January 2023 in the sum of AED 9,066.
Defence
12. The Defendant submits that the Claimant was employed on 23 August 2022 (i.e. the date he signed the Agreement) and not from 14 July 2022. Therefore, the Defendant submits that the Claimant is not entitled to the amount he is seeking.
Finding
13. This dispute is governed by DIFC Law No. 4 of 2021 (Employment Law Amendment Law) (hereafter the “DIFC Employment Law”) in conjunction with the relevant Agreement.
14. Article 16(1)(b) of the DIFC Employment Law, provides the following:
“(1) An Employer shall keep records of the following information:
(b) the Employee’s date of commencement of Employment.”
15. The Defendant failed to provide any evidence in support of its submission that the Claimant started when he first signed the Agreement (i.e., 23 August 2022). Upon review of the Agreement itself, I find that it provides that the joining date is stated to be 14 July 2022. The Claimant also submits that he joined the Defendant on 14 July 2022.
16. At the Hearing, the Court directed the Defendant to submit a copy of the Company’s Payroll from July 2022 onwards. However, the Defendant failed to do so. The Defendant only provided a copy of the Claimant’s employment visa which provides that the visa was issued on 7 September 2022.
17. Therefore, in the absence of such evidence requested, I shall follow the dates set out within the Agreement which provides that the Claimant’s date of joining is 14 July 2022.
18. The Claimant was employed from 14 July 2022 to 24 January 2023 which is the date of his last day of service as per the termination letter dated 23 January 2023. Therefore, my calculation will be pursuant to the following dates.
Salary and Notice Period
19. The Claimant claims his salary from 1 January 2023 to 24 January 2023. As per the Agreement his Monthly salary was in the sum of AED 17,000/30days= AED 566.66 per day x 24 days= AED 13,600.
20. I find the Claimant is entitled to his salary from 1 to 24 January 2023 in the sum of AED 13,600.
21. The Claimant alleges that he was terminated with immediate effect and has not been paid the 30 days’ notice period. Article 62(2)(b) provides the following:
“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.”
22. Article 14(2)(l) of the DIFC Employment Law, states as follows:
“14(2) An Employment Contract Shall include:
(l) any applicable probation period up to a maximum of six (6) months…”
23. The Claimant worked from 14 July 2022 to 24 January 2023 which is the period of 6 months and 10 days. Therefore, the Claimant surpassed the probation period of 6 months as set out within the Agreement. Accordingly, I find the Claimant is entitled to 30 days’ notice period in the sum of AED 17,000.
Annual Leave and Public Holidays
24. The Claimant claims that he has accrued untaken annual leave from 14 July 2022 to 24 January 2023 in the sum of AED 9,066.
25. Clause 7(c) of the Agreement provides the following:
“the Second Party (the “Claimant”) shall be entitled to thirty (30) working days paid annual leave for every 12 months of continuous employment with the company. The said 30 days are to be accrued pro rata for employees who have been employed for at least 6 months. Any official U.A.E Public Holidays falling under the period of annual leave will be considered as part of the leave. If business demands that the Second party should work on such Public Holidays, same number of days can be recuperated before the end of the year at the sole discretion of the First Party (the “Defendant”).”
26. Article 28(3) of the DIFC Employment Law provides as follows:
“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.”
27. The Claimant worked for 6 months and 10 days, therefore, I find that he is entitled to 15.833 days of accrued but untaken annual leave. The Claimant has claimed the sum of AED 9,066 in this regard.
28. The Calculation as per the DIFC Employment Law is as follows:
AED 17,000 x 12 months = AED 204,000/260 working days = AED 784.61 x 15.83 days = AED 12,420.37.
29. I note that within the Claim Form, the Claimant has only sought to claim the sum of AED 9,066 as payment in lieu of untaken annual leave, therefore, the Claimant shall be awarded the sum claimed in the amount of AED 9,066.
30. Article 32 of the DIFC Employment Law provides as follows:
“Public Holidays and pay
(1) An Employee is entitled to leave on each Public Holiday that is announced in the UAE by the relevant Competent Authority for the public sector or the private sector, whichever is applicable to the Employee's Employer, which falls on a Work Day.
(2) An Employer shall pay an Employee their Daily Wage for each Public Holiday.”
31. Article 16(1)(f) of the DIFC Employment Law provides as follows:
“Payroll records
(1) An Employer shall keep records of the following information:
(f) the dates of the Public Holidays taken by the Employee and the daily wages paid by the Employer in respect thereof.”
32. The Claimant claimed the sum of AED 2,835 in respect of 5 days of public holidays.
33. The Defendant failed to provide any records of the dates of the public holidays and the daily wage paid.
34. In the absence of any evidence from the Defendant to show that the Claimant has been paid the public holidays, I shall find that the Claimant is successful in this claim. The payment in lieu of public holidays shall be calculated as follows:
AED 784.61 (daily wage) x 5 days = AED 3,923.05.
35. Within his Claim Form, the Claimant has only sought to claim the sum of AED 2,835 as payment in lieu of public holidays worked. Therefore, the Claimant shall only be awarded the sum claimed in the amount of AED 2,835.
Conclusion
36. The Defendant shall pay the Claimant the total sum of AED 42,501.
37. The Defendant shall pay the Claimant the Court fees in the sum of AED 850.02.
