October 28, 2023 SCT - JUDGMENTS AND ORDERS
Claim No. SCT 335/2023
THE DUBAI INTERNATIONAL FINANCIAL CENTRE
COURTS IN THE SMALL CLAIMS TRIBUNAL OF DIFC COURTS
BETWEEN
MARIF
Claimant
and
METHUR
Defendant
ORDER WITH REASONS OF SCT JUDGE AND REGISTRAR AYESHA BIN KALBAN
UPON this Claim having been called for a Jurisdiction Hearing before SCT Judge and Registrar Ayesha Bin Kalban on 25 September 2023, with the Claimant’s and the Defendant’s representatives attending the Hearing
AND UPON reading the submissions and evidence filed and recorded on the Court file
AND UPON reviewing Rule 53.41 of the Rules of the DIFC Courts (the “RDC”)
IT IS HEREBY ORDERED THAT:
1. Claim SCT-335-2023 be transferred to the DIFC Court of First Instance in accordance with RDC 53.41.
2. Each party shall bear their own costs of the proceedings before the Small Claims Tribunal.
Issued by:
Hayley Norton
SCT Judge and Assistant Registrar
Date of Issue: 28 September 2023
At: 11am
SCHEDULE OF REASONS
1. The Claimant’s claim in this matter is brought by the Claimant against his former employer, and is for damages in the sum of AED 456,000 for the alleged victimisation and discrimination of the Claimant as a result of the Defendant’s actions where the Claimant has allegedly suffered mental and emotional distress. The bases on which the Claimant brings this Claim are set out within the Claim Form dated 4 September 2023, where the Claimant submits that particulars of claim will follow, however I do not propose to set out the brief details set out within the Claim Form hereto, given the limited scope of what I am to determine.
2. The Defendant, in its acknowledgment of service dated 11 September 2023, has indicated its intention to contest jurisdiction. The Defendant challenges the Small Claims Tribunal’s jurisdiction to hear and determine this claim on the grounds that the nature of the Claim at hand dictates that it must be transferred to the Court of First Instance for determination, relying on the DIFC Employment Law No. 2 of 2019 (as amended) (the “Law”), given that the Claim is one requiring the assessment of whether or not the Claimant has indeed been victimised or discriminated against whilst under the Defendant’s employment. The Defendant has also made submissions regarding the Claimant’s referral to Without Prejudice discussions in the Claim (which I do not propose to address in the course of these reasons) in addition to submissions relating to the Limitation Period set out in Article 10 of the Law. I shall discuss this issue first, before turning to the SCT’s jurisdiction.
3. At the outset, it is prudent to note that the Claimant’s claims are clearly brought under Part 9 of the Law, which makes reference to proceedings that can be brought against an employer in the event that the employee has suffered, at the hands of its employer, discrimination and victimisation. Article 59 and 60 of the Law (insofar as they are relevant to the Claimant’s claims) read as follows:
“59. Discrimination
(1) An Employer must not discriminate against an Employee regarding employment or any term or condition of employment on the grounds of the Employee’s:
(a) sex;
(b) marital status;
(c) race;
(d) nationality;
(e) age;
(f) pregnancy and maternity;
(g) religion; or
(h) mental or physical disability.
(2) Discrimination for the purposes of Article 59(1) means where:
(a) an Employee is treated less favourably than another is or would be treated in the same circumstances, or put at a disadvantage not faced by others, because of a prohibited ground in Article 59(1);
(b) a provision, criterion or practice is applied to an Employee which is discriminatory in relation to one (1) of the grounds in Article 59(1);
(c) an Employer engages in unwanted treatment or conduct related to one
(1) of the prohibited grounds which has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive workplace for an Employee or violates an Employee’s dignity; or
(d) Article 59(8)(b) or (d) applies.
(3) An Employer's actions in dismissing an Employee or subjecting them to a detriment are discriminatory under Article 59(1) if they contravene Article 59(2).
(4) For the purposes of Article 59(2), a provision, criterion or practice is discriminatory in relation to any of the prohibited grounds specified in Article 59(1) if:
(a) an Employer applies it, or would apply it, to persons who do not share the characteristics of such Employee;
(b) it puts, or would put, persons with whom the Employee shares the characteristic at a particular disadvantage when compared with persons with whom the Employee does not share it;
(c) it puts, or would put, the Employee at that disadvantage; and
(d) the Employer cannot show that it is a proportionate means of achieving a legitimate aim.
(5) For the purposes of Article 59(2)(a), an Employer does not discriminate against an Employee on grounds of age if the Employer can show his treatment of the Employee to be a proportionate means of achieving a legitimate aim.
(6) In deciding whether conduct has the effect referred to in Article 59(2)(c), each of the following must be taken into account:
(a) the perception of the Employee;
(b) the other circumstances of the case; and
(c) whether it is reasonable for the conduct to have that effect.
(7) An Employer may apply a genuine occupational requirement to Article 59(2)(a), (b), (c) or (d).
(8) Further, for the purposes of this Article 59:
(a) an Employee has a disability for the purposes of Article 59(1)(h) if the Employee has a mental or physical impairment or illness which has a substantial and long term adverse effect on the Employee’s ability to carry out duties to an Employer, which has lasted at least twelve (12) months or it is likely to last at least twelve (12) months;
(b) an Employer discriminates against an Employee with a disability within the meaning of Article 59(2) if the Employer fails to make reasonable adjustments to any physical feature of the workplace or applicable provision, criteria or practices that would, if made, enable the Employee to otherwise meet the genuine occupational requirement;
(c) a genuine occupational requirement is a requirement reasonably necessary for the normal performance of a particular role or occupation;
(d) an Employer discriminates against an Employee with a disability within the meaning of Article 59(2) if:
(i) the Employer treats the Employee unfavourably because of something arising in consequence of the Employee's disability; and
(ii) the Employer cannot show that the treatment is a proportionate means of achieving a legitimate aim.
(e) Articles 59(8)(b) and (d) do not apply if the Employer shows that it did not know, and could not reasonably be expected to know, that the Employee had the disability. No provision in this Part 9 precludes any law, program or activity that has as its object the employment of UAE nationals or the amelioration of conditions of disadvantaged individuals or groups, including those that are disadvantaged because of mental or physical disability.
60. Victimisation
(1) An Employer must not victimise an Employee.
(2) For the purposes of this Part 9, an Employer victimises an Employee if it subjects the Employee to a detriment or dismisses him because the Employee does a protected act, or the Employer believes that the Employee has done, or may do, a protected act. Each of the following is a protected act:
(a) bringing proceedings under this Part 9;
(b) giving evidence or information in connection with proceedings under this Part 9;
(c) doing any other thing for the purposes of or in connection with this Part 9; and
(d) making an allegation (whether or not express) that the Employer or another person has contravened this Part 9.
(3) Giving false evidence or information, or making a false allegation, is not a protected act under Article 60(2) if the evidence or information is given, or the allegation is made, in bad faith.”
4. I have set out the Articles above to display the grounds upon which the Claimant seeks to rely on in his Claim, but shall not discuss the merits of this Claim henceforth.
The Limitation Period
5. Article 10 of the Law reads as follows:
“10. Limitation Period
Subject to Article 61(2), a Court shall not consider a claim under this Law unless it is brought to the Court within six (6) months of the relevant Employee’s Termination Date.”
6. The Defendant submits that this Claim should be time barred by virtue of the fact that the Claimant’s employment with the Defendant ended by way of resignation on 2 January 2023, and any claims to be brought pursuant to this employment should have been brought within 6 months. It is agreed between the parties that they had agreed an extension of time for the filing of any proceedings arising out of the employment relationship until 22 August 2023, and the Defendant takes the position that since the Claim was only filed on 4 September 2023, the Claim is therefore out of time and must be dismissed.
7. The Claimant submits that the Claim was filed on 22 August 2023, i.e. within the extended period. Upon review, it appears that the Claim was indeed filed online on that date, however payment of the fee was only made on 4 September 2023, being the date that the Court issued a sealed Claim Form following the payment.
8. The Law does not make provision for parties to an employment relationship to be able to agree extensions to the period of time within which an employee can bring a claim in regards to their employment. Without wishing to analyse this further, it may be the case that this can be permitted, in accordance with Article 11(2)(A) of the Law which provides that an employer can seek to implement terms and conditions to an employment contract, provided that these terms are more favourable to the employee. I also would like to note that I agree with the Defendant’s submissions that the Claim cannot be considered filed unless paid for and accepted onto the Court file. A filing party is indeed afforded 30 days to make payment of an invoice however this does not constitute as a grace period for any filings that must be made in a timely manner should they be subject to a deadline – the Court’s invoicing policy cannot be utilised as an effective extension of time.
9. Article 61 reads as follows:
“61. Proceedings under Part 9
(1) In any proceedings before the Court under this Part 9:
(a) the burden of proof shall be on the complainant; and
(b) the respondent shall be treated as a party and is accordingly entitled to appear and be heard.
(2) A Court shall not consider a claim under this Part 9 unless it is brought to the Court before the end of:
(a) the period of six (6) months beginning with the later of the date on which this Law comes into force and the date of the act, or failure to do something, to which the complaint relates or
(b) where a complainant satisfies the Court that there are circumstances which justify disapplying Article 61(2)(a), such other period as the Court considers reasonable.”
10. As previously determined, the Claim is one brought under Part 9 of the Law. Having reviewed the case file, it appears that the parties have accepted that the Claimant suffers from a form of disability, to the extent that the Defendant has had to make adjustments to accommodate the Claimant in order to enable him to perform his duties. While I have yet to see evidence in support of this, the Claimant has stated that his mental health has prevented him from functioning at times, as well has having had to appoint a representative to appear on his behalf at the Jurisdiction Hearing.
11. Without seeking to make a final determination on this, I do not believe it appropriate for the Court to dismiss the Claimant’s case at this stage, given that, if confirmed, mental disability can prove to be a sufficient circumstance that could lead the Court to disapply the limitation period set out in Articles 10 and 61(2)(a) of the Law. The parties can make further submissions on this point if so required, given that the Claimant did not provide evidence of his poor mental health, meaning that the Court cannot decide this in full at this stage.
12. It follows that I dismiss the Defendant’s request that the Claim be time barred at this stage.
The Jurisdiction of the SCT
13. The crux of the Defendant’s challenge to the SCT’s jurisdiction is that the Law sets out that the relevant court to determine proceedings under Part 9 is the DIFC Court of First Instance, under Article 3 of its Schedule 1, where the term ‘Court’ is defined as follows:
“Any relevant court or tribunal established in the DIFC or, in relation to any proceedings under Part 9 of this Law, the DIFC Court of First Instance.” [emphasis added]
14. The Defendant has relied on my judgment in the matter of Liet v Leat [2022] SCT 441, where I determined that having regard to the nature of disputes brought under Part 9 of the Law, any such claim would fall outside the expedited track of claims brought before the SCT. The Claimant has also provided case law to suggest that the SCT can determine proceedings under Part 9 of the Law and indeed has done so in the past, however it is clear that such claims have either been determined under the previous employment law, or that the claims did not entirely relate to discrimination or victimisation. I therefore agree with the Defendant’s submissions that this Claim cannot be appriopriately adjudicated in the SCT.
15. While I understand that the Claimant’s argument is that his poor health would prevent him from progressing a claim under the Court of First Instance, however he may (and I note he has already sought to do so) obtain legal representation and avail of other services of the DIFC Courts to support him during a claim brought before the CFI, should he wish to do so.
16. Therefore, in accordance with RDC 53.41 and the Law, it is hereby ordered that this claim be transferred to the Court of First Instance for determination.
