December 25, 2023 SCT - JUDGMENTS AND ORDERS
Claim No. SCT 320/2023
IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
Mako
Claimant/Respondent
and
Mali
Defendant/Appellant
ORDER WITH REASONS OF JUSTICE RENE LE MIERE
UPON the Judgment of H.E. Justice Nassir Al Nasser dated 24 November 2023 (the “Judgment”)
AND UPON reviewing the Defendant’s Appeal Notice dated 11 December 2023 seeking permission to appeal the Judgment (the “Permission Application”)
IT IS HEREBY ORDERED THAT:
1. The Permission Application is refused.
Issued by:
Delvin Sumo
SCT Judge and Assistant Registrar
Date of Issue: 25 December 2023
At: 2pm
Summary
1. The Claimant, who had been employed by the Defendant, brought a claim in the Small Claims Tribunal against the Defendant for unpaid salary.
2. On 14 November 2023, it was ordered that the Defendant pay the Claimant USD 1434.14 plus interest (the “Judgment”)
3. By appeal notice dated 11 December 2023, the Defendant applied for permission to appeal against the judgement; and by an amended appeal notice also sought an extension of time within which to bring the application for permission to appeal (the “Permission Application”).
4. The Claimant opposes the Permission Application.
5. For the reasons which follow, I find that the time for the Defendant to file a notice of appeal should be extended to 11 December 2023, but the appeal would not have a real prospect of success and there is no other compelling reason why the appeal should be heard. Therefore, the Permission Application will be refused.
The Parties
6. The Defendant/Appellant (the “Defendant”) is Mali, a company registered and located in the DIFC. The Defendant was represented by its general manager, Mr Malka. Mr Malka said that the Defendant is the holding company for the Maliya charity, which was founded to give sustainable employment for widows and refugees following the Artsakh war.
7. The Claimant/ Respondent is Mako (the “Claimant”), a citizen of Ukraine, who was employed by the Defendant as a consultant pursuant to a consultancy services agreement executed on 1 September 2022 (the “Agreement”).
The Claim
8. On 25 August 2023, the Claimant filed a claim with the DIFC Courts’ Small Claims Tribunal seeking the amount of USD 3,466 for unpaid salary for April, May, and 14 days of June 2023, and one month notice.
9. On 11 September 2023, after the Defendant had paid the Claimant her salary for April and May 2023, the Claimant amended the claimed amount reducing it to the amount of USD 1,466 which comprises payment for 14 days of June 2023, and one month notice.
10. After a hearing before H.E. Justice Nassir Al Nasser on 14 November 2023, it was ordered that the Defendant pay the Claimant the sum of USD 1434.14 plus interest at the rate of 9% per annum from the date of the judgement until the date of full payment.
11. On 11 December 2023, the Defendant applied for permission to appeal against the judgement. The appeal notice was filed 13 days late. By an amended appeal notice, the Defendant sought an extension of time within which to bring the Permission Application.
The application for extension of time
12. I will order that the time for the Claimant to appeal be extended to 11 December 2023 for the following reasons.
13. First, the delay is neither serious nor significant. The Defendant filed its appeal notice 13 days after the time required by the rules.
14. Secondly, whilst the Defendant’s explanation for the delay is not compelling, it has been explained. Mr Malka says he did not file the appeal notice on time because “whilst the appeal notice was filed on time, the payment was delayed because the banking system of ADCB was not working at the time thus making it impossible for me to pay.”
15. Thirdly, the delay has caused no significant prejudice to the Claimant nor to the Court.
Rules concerning application for permission to appeal
16. To appeal a decision of the Small Claims Tribunal, an appellant must first obtain permission to appeal. This application is made to the CFI. Permission to appeal may be given only where the Court considers that the appeal would have a real prospect of success or there is some other compelling reason why the appeal should be heard.1
17. The Court will allow an appeal where the decision was wrong, unjust because of a serious procedural or other irregularity in the proceedings, or wrong in relation to any other matter provided for or under any law2.
The Judgment of the Tribunal
18. In his reasons, the learned Judge found as follows.
19. Clause 2 of the Agreement provides that the Agreement can be terminated by either party giving one months’ notice.
20. On 12 June 2023, the Claimant sent the Defendant an email stating as follows:
“You can make a transfer today. Issues with the bank have been resolved. Further cooperation is impossible under these circumstances. Please give the original of my contract and, if possible, a letter of recommendation to Manisha…”.
21. On 14 June 2023, the Defendant responded:
“You were very clear from the beginning. We did not expect you to remain with the company beyond Manisha’s departure. We thank you for your services. 2 months’ salary has been transferred to you…”.
22. The Claimant’s email dated 12 June 2023 is to be treated as termination of the Agreement.
23. The Claimant was required to serve one month notice from 13 June to 12 July 2023.
24. The Claimant worked for 12 days in June 2023 and served the notice period.
25. Therefore, the Claimant is entitled to pay of USD 394.44 for 12 days in June 2023 and USD 1000 for her notice period from 13 June to 12 July 2023.
Grounds of appeal
26. The grounds for appeal in the appeal notice are somewhat discursive but essentially raise two grounds.
27. The first and primary ground is that the Claimant acknowledged that she was owed only two months’ salary and did not work beyond May 2023.
28. The second ground is that the Defendant is a charity and, having already paid the outstanding salaries owed, objects morally, ethically, and legally to giving the Claimant what is not due.
29. The facts found by the learned Judge are not challenged by the Defendant except that the Defendant says the Claimant did not work after May 2023.
30. It was open on the evidence for the Judge to find that the Claimant worked the 12 days in June and served her period of notice. There is no basis for finding that the Judge’s finding was wrong.
31. The Respondent characterises the Appellant’s first ground of appeal as a contention that the Respondent implicitly waived any further financial claims by pursuing her two months' outstanding pay.
32. The evidence before the Tribunal provides no basis for that contention.
33. It was open to the Judge to find that in her e-mail of 12 June 2023 and in previous and subsequent communications, the Claimant requested and demanded 2 months’ pay that was then due and outstanding.
34. The Judge did not find, and the evidence did not compel him to find, that the Claimant relinquished or waved any additional financial claims.
35. The Appellant paid the Claimant two months' pay after the Claim was filed. The payment was not made as a conditional offer to settle, The Judge did not find, and the evidence did not compel him to find, that by accepting the two months’ pay, the Claimant relinquished or waived any additional financial claims.
36. Mr Malka may sincerely believe that the Defendant is a charity and having paid the outstanding salaries that the Claimant pursued in June 2023, the Claimant is not morally or ethically entitled to any further payment. However, that provides no legal defence to the Claimant’s claim.
Conclusion
37. The learned Judge considered when the Claimant resigned, when her employment terminated and whether she worked 12 days in June and served her period of notice. Having reviewed the evidence, including the Claimant’s emails and the Defendant’s email of 14 June 2023, his Excellency found that the Claimant had worked 12 days in June, resigned on 12 June and served one months’ notice.
38. These are the sort of evaluative conclusions which are entrusted to the trial judge.
39. An appellate court should intervene only if it is satisfied that the Judge was wrong. It is not sufficient that the appellate court might have reached a different decision if it were the trial court.
40. The Defendant referred to the same documents and evidence at the hearing of its Permission Application as it had referred to at the hearing before the Tribunal.
41. The Defendant has not shown that there is a real prospect that the appeal court would find that the learned trial Judge made any error in the assessment of the evidence. The Defendant has not shown that if the Permission Application was granted there is a real prospect it might succeed. The Defendant has shown no other compelling reason the appeal should be heard.
42. The appeal would have no real prospect of success. There is no other compelling reason the appeal should be heard.
43. The Permission Application will be dismissed.
