July 19, 2023 SCT - JUDGMENTS AND ORDERS
Claim No. SCT 197/2023
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
MARLOO
Claimant
and
MARLAA
Defendant
| Hearing : | 11 July 2023 |
|---|---|
| Judgment : | 19 July 2023 |
JUDGMENT OF H.E JUSTICE NASSIR AL NASSER
UPON this Claim being filed on 29 May 2023
AND UPON a hearing having been held before H.E Justice Nassir Al Nassir on 11 July 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 Claimant’s claim shall be dismissed.
2. Each party shall bear his own costs.
Issued by:
Hayley Norton
SCT Judge and Assistant Registrar
Date of issue: 19 July 2023
At: X
THE REASONS
The Parties
1. The Claimant is MARLOO (the “Claimant”), an individual filing a claim against the Defendant regarding his employment at the Defendant company.
2. The Defendant is MARLAA (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 offer letter dated 13 March 2023 (the “Agreement”).
4. On 3 April 2023, the Claimant filed a claim with the DIFC Courts’ Small Claims Tribunal (the “SCT”) seeking 60 days’ notice period in the sum of AED 72,000.
5. On 6 June 2023, The Defendant filed an acknowledgment of service with the intention to defend all of the claim.
6. On 19 June 2023, a Consultation was held before SCT Judge Delvin Sumo however the parties were unable to reach a settlement.
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 11 July 2023 at which the Claimant and the Defendant’s representative attended (the “Hearing”).
The Claim
8. The Claimant commenced employment with the Defendant on 13 March 2023. On 4 May 2023, the Defendant terminated the Claimant’s employment during his probation period.
9. The Claimant submits that clause 8.1 of the Agreement provides that “An Unlimited Contract shall be terminated on the provision by either the Company or the Employee with 60 days’ notice in writing to the other.”
10. The Claimant submits that Article 62(2) of the DIFC Employment Law provides the minimum period of notice:
“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.
Article 62(6) provides “Article 62(2) does not apply:
(a) during any probation period agreed in an Employment Contract;
(b) where it has been agreed in the Employment Contract that the Employee's employment will terminate on the expiry of a fixed term; or
(c) in respect of termination for excessive Sick Leave in accordance with Article 36(1).”
11. The Claimant continues to assert that pursuant to Article 62(6) of the DIFC Employment Law, Article 62(2) does not apply to his claim, for the reason set out in clause 8.1 of the Agreement.
12. The Claimant adds that clause 4 of the Agreement states the following:
“The Employee shall work under a probation period of Six (6) month calculated as from the commencement date of this Employment Contract set out in clause 3 above. In the event of termination of the Employment during the probationary period, the Employee will not be entitled to receive any end of service benefits or other compensations whatsoever.” [sic]
13. The Claimant asserts that this clause does not mention “Remuneration” which means his monthly salary (including basic and housing allowance), but only "end of service benefits or other compensations whatsoever." If other compensations in this clause was meant to include Remuneration, then under this clause he would not even be entitled to the Remuneration during any notice period (whether it is 7 or 60 days).
14. The Claimant also adds that Article 62(3) of the DIFC Employment Law provides “Article 62(2) shall not prevent an Employer and Employee from agreeing to a longer notice period in an Employment Contract.” The Claimant asserts that the parties have agreed to a 60 days’ notice period, therefore, Article 62(6)(a) does not apply.
15. Therefore, the Claimant claims the total sum of AED 72,000 being his 60 days’ notice period as per the Agreement.
Defence
16. The Defendant submits that the Agreement was formally terminated on 28 April 2023. During this period the Claimant had only worked for 6 weeks and was under a probation period of 6 months.
17. The Defendant submits that clause 4 of the Agreement states that any termination during the probation period excludes any right of the employee to receive any compensation upon termination.
18. The Defendant adds that Article 62(2) of the DIFC Employment Law provides that an employee continuously employed for a period of less than 3 months shall be terminated on a minimum of seven (7) days’ notice.
19. The Defendant also submits that clause 8.1 of the Agreement only grants the right to termination upon 60 days’ notice, following an employee’s successful completion of their probation.
20. The Defendant submits that the Claimant is entitled to AED 8,130, as payment in lieu of notice, which is equivalent to seven (7) days of the employee’s current monthly remuneration.
Finding
21. 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.
22. Article 62(2) of the DIFC Employment Law provides the minimum period of notice and is set out at paragraph 10 above,
23. The question is whether the Claimant is entitled to two months’ notice.
24. The wording in Article 62(2) provides that this Article is subject to Article 62(3), 62(4) and 62(6). Upon reviewing Article 62(2), it is clear that there are minimum requirements for notice depending on the tenure of the employee’s continuous service. In addition, Article 62(3) does not prevent an employer and employee agreeing to a longer notice. However, Article 62(6) provides that Article 62(2) does not apply during probation period.
25. The parties signed an Agreement which provides that the notice period shall be 60 days which is in accordance with Article 62(3) and does not prevent an employer and employee agreeing to a longer notice period. However, Articles 62(2), 62(3) does not apply within probation periods in accordance with Article 62(6).
26. The question of why it does not apply is because Article 62(2) provides the minimum requirement and is subject to Article 62(3), 62(4) and 62(6).
27. The Article sets out the minimum requirements for a notice period and permits parties to agree upon a longer period, and sets out the position for when the provisions under the law do not apply.
28. I find that the Claimant is not entitled to payment for a notice period as there is no legal requirement that an employee be required to serve a notice period within their probation period.
In conclusion
29. I find that the Claimant claim shall be dismissed.
30. Each party shall bear his own costs.
