March 30, 2023 SCT - JUDGMENTS AND ORDERS
Claim No. SCT 030/2023
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
MIKLY
Claimant/Counter Defendant
and
MITRO
Defendant/Counter Claimant
| Hearing : | 22 March 2023 |
|---|---|
| Judgment : | 30 March 2023 |
JUDGMENT OF H.E JUSTICE NASSIR AL NASSER
UPON the Claimant’s Claim dated 19 January 2023 filed under Claim No. SCT 030/2023 (the “Claimant’s Claim”)
AND UPON the Defendant’s Counterclaim dated 10 February 2023 filed against the Claimant under Claim No. SCT 068/2023 (the “Defendant’s Counterclaim”)
AND UPON the order of SCT Judge Maitha Al Shihhe dated 10 February 2023 consolidating SCT 030/2023 and SCT 068/2023
AND UPON the hearing held before H.E. Justice Nassir Al Nassir on 22 March 2023, with the Claimant’s representative and the Defendant in attendance (the “Hearing”)
AND UPON reviewing the documents and evidence filed and recorded on the Court file
IT IS HEREBY ORDERED THAT:
1. The Claimant’s Claim is dismissed.
2. The Claimant shall pay the Defendant the total sum of AED 10,900 under the Defendant's Counterclaim.
3. Each party shall bear its own costs in relation to the Claimant's Claim.
4. The Claimant shall pay the Defendant‘s Counterclaim Court fee in the sum of AED 545.
Issued by:
Delvin Sumo
SCT Judge and Assistant Registrar
Date of issue: 30 March 2023
At: 1pm
THE REASONS
The Parties
1. The Claimant is Mikly. (the “Claimant”), a company registered and located in the DIFC, Dubai, UAE.
2. The Defendant is Mitro (the “Defendant”), an individual filing a claim against the Defendant regarding his employment at the Defendant company.
Background and the Preceding History
3. The underlying dispute arises over the employment of the Defendant by the Claimant pursuant to an employment agreement dated 3 March 2022 (the “Agreement”).
4. On 19 January 2023, the Claimant filed a claim against the Defendant seeking compensation for breach of Employment Agreement in the sum of AED 7,500.
5. On 30 January 2023, the Defendant filed an Acknowledgment of Service with the intention to defend all of the claim.
6. On 10 February 2023, the Defendant filed Claim No. SCT 068/2023 against the Claimant seeking various employment claims in the sum of AED 11,655.
7. On 10 February 2023, the DIFC Courts issued an order consolidating claims SCT 030-2023 and SCT-068-2023.
8. On 16 February 2023, the Claimant filed an Acknowledgment of Service admitting the Defendant’s claim.
9. On 9 February and 2 March 2023, a Consultation was held before SCT Judge Maitha Al Shehhi, however the parties were unable to reach a settlement.
10. In line with the rules and procedures of the SCT, this matter was referred to me for determination, pursuant to a hearing held on 22 March 2023, at which the Claimant and the Defendant’s representative were in attendance.
The Claimant’s Claim
11. The Claimant submits that the Defendant breached her Employment Agreement by failing to follow sanitization requirements set in place by the Claimant company, providing poor customer service, offering private sessions to customers outside the Claimant’s premises and for reason of misconduct.
12. The Claimant submits that the Defendant’s actions caused significant harm to the Claimant’s business reputation. Therefore, the Claimant filed a claim for compensation in the sum of AED 7,500.
Defence
13. The Defendant in response, submits the following: (a) sanitizations were made in accordance with the rules of the Claimant; (b) the Defendant provided evidence of Google reviews left by clients; (c) she never asked to serve clients outside the Claimant’s premises, the bookings were made to her directly and were then forwarded to the Claimant’s Manager (“Miryo”) to list it in the calendar which was a known process for the Claimant’s technicians; (d) she never caused nail damage to any of the clients.
The Defendant’s Counterclaim
14. The Defendant filed a counterclaim, claiming her end of service entitlements in the sum of AED 11,655 which consists of the following:
(a) Salary for 7 days in January 2023 in the sum of AED 1,400.
(b) One months' notice Salary in the sum of AED 6,000.
(c) Payment in lieu of 18 days of accrued but untaken annual leave in the sum of AED 3,700.
(d) Court fees.
15. The Defendant submits that her salary was increased to AED 6,000 and provided a WhatsApp conversation as evidence of the increase.
The Claimant’s response to the Defendant’s Counterclaim
16. The Claimant filed an Acknowledgment of Service admitting the Defendant’s Counterclaim. However, the Claimant provided a calculation that the Defendant is only entitled to AED 9,000, calculated as follows:
(a) January 2023 salary in the sum of AED 5,000;
(b) 6 days of salary for the month of February 2023 in the sum of AED 996; and
(c) Payment in lieu of 18 days of accrued but untaken annual leave in the sum of AED 3,000.
17. The Claimant submits that the Defendant’s salary as set out in the Employment Agreement is AED 5,000 and was never subjected to an increase.
Discussion
The Claimant’s Claim
18. The Claimant’s Claim seeks compensation in the sum of AED 7,500.
19. The Defendant started working with the Claimant from 3 March 2022 until her resignation on 8 January 2023.
20. Prior to 8 January 2023, the Claimant failed to provide any evidence of written warnings handed to the Defendant in relation to misconduct or any breach of the Employment Agreement.
21. The Claimant also failed to provide the Courts with evidence on how she has arrived to the sum of AED 7,500 in compensation.
22. Therefore, I dismiss the Claimant’s Claim for lack of evidence in quantifying the losses suffered by the Claimant due to the Defendant’s alleged breach of the Employment Agreement.
The Defendant’s Counterclaim
23. This Defendant’s Counterclaim is governed by DIFC Law No. 4 of 2021 (Employment Law Amendment Law) (hereafter the “DIFC Employment Law”) in conjunction with the relevant Agreement.
24. The Defendant claims the sum of AED 11,655 as her end of service entitlements, as defined in paragraph 14 above.
25. The Claimant admits to the Defendant’s Counterclaim, however, argues that the Defendant is only entitled to AED 9,000, as also set out above.
26. The Defendant provided WhatsApp conversations with Mr. Makon of the Claimant which reads as follows:
“Makon: that’s why I increased to 6000.
The Defendant: I think I deserve to increase my salary and thanks coz you consider that.
Makon: Yes you deserve it and I deserve the appreciation
Makon: I am very fair person.”
27. In addition, the Defendant provided a salary transfer receipt which reflects the salary of AED 6,000.
28. I am satisfied that the evidence reflects an increased in the Defendant’s salary in the sum of AED 6,000. I shall decide the Defendant’s entitlements accordingly.
Salary and Notice Period
29. The Defendant resigned on 8 January 2023 but continued working until 6 February 2023, serving her notice period.
30. Therefore, the Defendant is entitled to AED 6,000 for January 2023.
31. In relation to 6 days of February 2023, the Defendant salary is AED 6,000 per month / 30 days = AED 200 per day x 6 days = AED 1,200.
32. Therefore, I find that the Claimant is entitled to AED 7,200 for January 2023 and 6 days of February 2023.
Annual Leave
33. The Defendant claims payment in lieu of 18 days of accrued but untaken annual leave in the sum of AED 3,700.
34. The Claimant does not refute this claim but differs with the Defendant on calculation. The submits that the Defendant is entitled to AED 3,000.
35. Article 28(3) of the DIFC Employment Law provides that:
“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.”
36. The Claimant’s last salary was AED 6,000 x 12 months = AED 72,000/260 working days = AED 276.92 daily wage x 18 days = AED 4,984.56.
37. The Defendant is entitled to AED 4,984.56, however, she only claimed AED 3,700 in relation to her 18 days of accrued but untaken annual leave, therefore, she is only entitled to what she has claimed.
Penalties under Article 19
38. Article 19(1) and (2) of the DIFC Employment Law provides:
“19. Payments following termination
(1) An Employer shall pay to an Employee, within fourteen (14) days after the Termination Date:
(a) all Remuneration, excluding, where applicable, any Additional Payments deferred in accordance with Article 18(2);
(b) where applicable, any Gratuity Payment that accrued prior to the Qualifying Scheme Commencement Date under Article 66(1) not transferred to a Qualifying Scheme under Article 66(6);
(c) a Daily Wage for each day of accrued Vacation Leave not taken; and
(d) all outstanding amounts due in respect of the Employee under Article 66(7) not yet paid to a Qualifying Scheme.
(2) Subject to the provisions of Article 19(3) and 19(4), an Employee shall be entitled to and the Employer shall pay a penalty equal to an Employee’s Daily Wage for each day the Employer is in arrears of its payment obligations under Article 19(1).”
39. The Defendant claims penalties under Article 19 of the DIFC Employment Law, but has failed to quantify the amount she would be entitled to.
40. Even if the Defendant did quantify the amount sought as Article 19 penalties, she would not be entitled to this amount under Article 19 in light of the fact that the Claimant's claim was brought on 19 January 2023, prior to the Defendant’s last day of work. The Defendant brought her claim on 10 February 2023, i.e. before 14 days of her last day of employment.
41. Article 19(4) of the DIFC Employment Law provides:
“(4) A Penalty pursuant to Article 19(2) will be waived by a Court in respect of any period during which:
(a) A dispute is pending in the Court regarding any amount due to the Employee under Article 19(1); or
(b) The Employee’s unreasonable conduct is the material cause of the Employee failing to receive the amount due from the Employer.”
42. Therefore, the Defendant’s claim for penalties under Article 19 shall be dismissed pursuant to Article 19(4)(a).
Conclusion
43. In light of the aforementioned, I find that the Defendant is entitled to the total sum of AED 10,900.
44. The Claimant’s Claim shall be dismissed.
45. Each party shall bear its on costs in relation to the Claimant's Claim.
46. The Claimant shall pay the Defendant its counterclaim Court fee in the sum of AED 545.
