November 28, 2023 SCT - JUDGMENTS AND ORDERS
Claim No. SCT 285/2023
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
MAPIK
Claimant
and
MESIL
Defendant
| Hearing : | 21 November 2023 |
|---|---|
| Judgment : | 28 November 2023 |
JUDGMENT OF H.E JUSTICE NASSIR AL NASSER
UPON this Claim being filed on 31 July 2023
AND UPON a hearing having been held before H.E Justice Nassir Al Nassir on 21 November 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 52,000.
2. The Defendant shall pay the Claimant the Court fee in the sum of AED 1,040.
Issued by:
Hayley Norton
SCT Judge and Assistant Registrar
Date of issue: 28 November 2023
At: 11am
THE REASONS
The Parties
1. The Claimant is Mapik (the “Claimant”), an individual filing a claim against the Defendant regarding his employment at the Defendant company.
2. The Defendant is Mesil (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 employment agreement dated 28 December 2019 (the “Agreement”). The Claimant’s employment with the Defendant commenced on 1 January 2020.
4. On 31 July 2023, the Claimant filed a claim with the DIFC Courts’ Small Claims Tribunal (the “SCT”) seeking various employment claims in the sum of AED 130,006.
5. On 27 November 2023, the Defendant filed its submissions with the intention to defend the whole claim.
6. On 15 September 2023, a Consultation was held before SCT Judge Delvin Sumo at which the parties failed to settle the claim amicably.
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 21 November 2023 (the “Hearing”). The Claimant and the Defendant’s representative attended.
The Claim
8. The Claimant commenced employment on 28 December 2019, with a monthly salary of AED 6,000.
9. The Claimant submits that during July 2022 whilst on his vacation leave, the Defendant stopped him from working.
10. The Claimant submits that from January 2020 to June 2022, he received a monthly salary of AED 4,500 instead of AED 6,000 as agreed in the Agreement.
11. Therefore, the Claimant is seeking the total sum of AED 130,006 which consists of the following claims:
(a) the sum of AED 45,000 being the remaining AED 1,500 unpaid from January 2020 to June 2022;
(b) pending salaries including the notice period from July 2022 to August 2023 in the sum of AED 78,000; and
(c) gratuity in the sum of AED 7,000.
The Defence
12. The Defendant submits that the Claimant’s salary was reduced from AED 6,000 to AED 4,500. The Defendant submitted a WhatsApp conversation with the Claimant in support of its allegation that the parties agreed to the reduction in salary.
13. The Defendant also submits that the Claimant was no longer an employee of the Defendant from July 2022. Therefore, he is not entitled to any claims from July 2022 onwards.
Discussion
14. 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.
15. I shall first decide the Claimant’s date of commencement of employment and the termination date.
16. The Claimant submits that he went on holiday during July 2022 and the Defendant requested him to stop working. In addition, the Defendant submits that during the same period, i.e. July 2022, the Claimant left for vacation and the Defendant requested him to stop coming to work.
17. Therefore, it appears that the Claimant was requested to stop working during July 2022, therefore, I shall consider this date as the termination date.
18. In the light of the above, I find that the Claimant worked from 28 December 2019 to some time in July 2022. As neither party has provided evidence to show the exact date of termination, I shall consider 1 July 2022 as the date of termination.
Salaries and notice period
19. The Claimant submits that he is entitled to the sum of AED 1,500 each month from January 2020 to June 2022. The Claimant submits that, as per the Agreement, his salary is set out to be AED 6,000 per month. However, the Defendant has only paid him the sum of AED 4,500 each month.
20. The Defendant submits that the parties agreed to a salary reduction from AED 6,000 to AED 4,500, and provided a WhatsApp conversation between the parties in support of this submission.
21. Upon reviewing the WhatsApp conversation, I find conversation regarding the reduction of salary occurred around the end of April 2022 and the beginning of May 2022. The Defendant failed to provide any evidence to demonstrate that the Claimant agreed upon a salary reduction prior to April/May 2022.
22. Article 16(c) and (e) of the DIFC Employment Law states the following:
“Payroll Records
(1) An Employer shall keep record of the following information:
(c) the Employee’s remuneration (gross and net, where applicable), and the applicable pay period;
(e) each deduction made from the Employee’s remuneration and the reason for it;”
23. In light of my findings above, I find that the Claimant is entitled to AED 1,500 for his salaries from January 2020 to April 2022 in the total sum of AED 40,500.
24. The Claimant has claimed his full salary from July 2022 to August 2023 (including the notice period). The Claimant submits that it is the Defendant who asked him to stop working in July 2022, therefore, he shall be entitled to the salaries where he was an employee but was requested by the Defendant not to work.
25. The Defendant on the other hand, submits that the Claimant was terminated from July 2022, therefore, he is not entitled to any salaries for the period beyond July 2022.
26. I agree with the Defendant’s submission that the Claimant was terminated during that period (i.e. July 2022) and that he shall not be entitled to any salaries thereafter. However, I find that the Claimant is entitled to receive one-month notice, as claimed, because the Claimant was asked to stop working without prior notice.
27. Article 62(2)(b) of the DIFC Employment Law provides:
“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:
(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 secondments…”
28. The Claimant’s period of employment was for two (2) years and seven (7) months. Therefore, the Claimant shall be entitled to one-month salary for the notice period in the sum of AED 4,500 (as the salary deduction occurred during April/May 2022).
End of Service Gratuity and Contributions to Qualifying Scheme
29. 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. …
…
(7) From the Qualifying Scheme Commencement Date an Employer shall, on a monthly basis, pay to a Qualifying Scheme, for the benefit of each Employee who is not an Exempted Employee, an amount equal to as least the Core Benefits, which shall be calculated as follows:
(a) five point eight three percent (5.83%) of an Employee’s Monthly Basic Wage for the first (5) years of an Employee’s service, inclusive of any period of employment of Secondment served to prior to the Qualifying Scheme Commencement Date; and
(b) eight point three three percent (8.33%) of an Employee’s Monthly Basic Wage for each additional year of service…”
30. The Claimant’s employment with the Defendant was for the period of 2 years, 6 months and 3 days. As such, the Claimant would be entitled to contributions for the period between 28 December 2019 to 1 July 2022, being his last working day.
Between 28 December 2019 to 28 December 2021:
The Claimant’s monthly basic wage is AED 4,000 x 5.83% (being the minimum contribution amount defined by the Employment Law) = AED 233.20 per month x 2 year = AED 5,596.80.
6 months from the period of 29 December 2021 to 28 June 2022 = AED 233.20 x 6 months = AED 1,399.20.
3 days from 29 June 2022 to 1 July 2022:
AED 131.50 (being the Claimant’s daily basic wage) x 5.83% = AED 7.66 per day x 3 days = AED 22.98.
31. 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 7,018.98. However, the Claimant has only claimed the sum of AED 7,000 within his Claim Form therefore he shall be awarded the sum that he has claimed.
Conclusion
32. In light of the aforementioned, I find that the Defendant shall pay the Claimant the total sum of AED 52,000.
33. The Defendant shall pay the Claimant the Court fee in the sum of AED 1,040.
