November 28, 2023 SCT - JUDGMENTS AND ORDERS
Claim No. SCT 211/2023
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
MILKIG
Claimant
and
MURABOP
Defendant
| Hearing : | 20 November 2023 |
|---|---|
| Judgment : | 28 November 2023 |
JUDGMENT OF H.E JUSTICE NASSIR AL NASSER
UPON this Claim being filed on 5 June 2023
AND UPON a hearing having been held before H.E Justice Nassir Al Nassir on 20 November 2023, with the Claimant in attendance and the Defendant absent
AND UPON reviewing the documents and evidence filed and recorded on the Court file
AND PURSUANT TO Rule 53.61 of the Rules of the DIFC Courts (“RDC”)
IT IS HEREBY ORDERED THAT:
1. The Defendant shall pay the Claimant the total sum of AED 44,038.22.
2. The Defendant shall immediately cancel the Claimant’s employment visa.
3. The Defendant shall pay the Claimant the Court fee in the sum of AED 880.76.
Issued by:
Hayley Norton
SCT Judge and Assistant Registrar
Date of issue: 28 November 2023
At: 3pm
THE REASONS
The Parties
1. The Claimant is Milkig (the “Claimant”), an individual filing a claim against the Defendant regarding his employment at the Defendant company.
2. The Defendant is Murabop DIFC (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 which the Claimant was issued an employment visa under the Defendant’s sponsorship dated 26 May 2022.
4. On 5 June 2023, the Claimant filed a claim with the DIFC Courts’ Small Claims Tribunal (the “SCT”) seeking various employment claims in the sum of AED 52,000.
5. The Defendant failed to acknowledge the claim.
6. On 1 August 2023, a Consultation was held before SCT Judge Delvin Sumo at which the Claimant attended and the Defendant failed to attend.
7. On 2 August 2023, the SCT Registry issued the Default Order of SCT Judge Delvin Sumo (the “Default Order”).
8. On 1 September 2023, the Defendant filed an application seeking permission to set aside the Default Order which was granted on 14 September 2023.
9. In line with the rules and procedures of the SCT, this matter was referred to me for determination, pursuant to a hearing held on 20 November 2023 (the “Hearing”). The Claimant attended and the Defendant was absent although served.
The Claim
10. The Claimant commenced employment on 26 May 2022 with a monthly salary of AED 3,000.
11. The Claimant’s employment ended on 5 June 2023. The Claimant failed to provide a copy of his employment contract in support of his Claim.
12. The Claimant is seeking the total sum of AED 52,000 which consists of the following claims:
(a) 13 months’ salary from May 2022 to June 2023 in the sum of AED 39,000;
(b) Payment in lieu of an air ticket to his home country in the sum of AED 2,000;
(c) Payment in lieu of 30 days accrued but untaken annual leave in the sum of AED 3,000;
(d) Payment of 21 days gratuity; and
(e) 2 months’ salary for unfair dismissal in the sum of AED 6,000.
The Defence
13. The Defendant failed to attend the Hearing nor did it submit any defence to this Claim.
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.
Salaries
15. The Claimant submits that he is entitled to 13 months’ salary from 26 May 2022 to 5 June 2023. However, as per the dates provided the Claimant, I find that he has only worked for 12 months and 9 days.
16. 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;”
17. In light of my findings above and the Defendant’s failure to file any evidence to the contrary, I find that the Claimant is entitled to his salaries in the total sum of AED 36,887.67 for 12 months’ and 9 days.
Annual Leave and Air Ticket
18. The Claimant is seeking payment in lieu of accrued but untaken annual leave in the sum of AED 3,000 and payment of a flight ticket in the sum of AED 2,000.
19. Article 16(1)(g) of the DIFC Employment Law states the following:
“Payroll Records
(1) An Employer shall keep record of the following information:
(g) the dates of Vacation Leave taken by the Employee and the Daily wages paid by the employer in respect thereof and the vacation leave balance owing.”
20. Article 28(1) of the DIFC Employment Law states as follows:
“where an Employee’s employment is terminated, the employer shall pay the Employee an amount in lieu of a Vacation leave accrued but not taken up to and including the termination date calculated in accordance with Article 28(3) 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.”
21. The Claimant’s daily wage is calculated as follows: AED 3,000 x 12 months/260 days = AED 138.46 per day x 30 days of annual leave accrued but untaken 1 year = AED 4,153.80
22. I find that the Claimant is entitled to AED 4,153.80 for the annual leave accrued but untaken for 1 year. I note that the Claimant is only claiming the sum of AED 3,000 for his claim of annual leave, therefore, I shall award this sum as claimed by the Claimant.
23. The Claimant also claimed payment in lieu of an air ticket to his home country in the sum of AED 2,000. In the absence of any defence and in accordance with RDC 53.61, I shall award the Claimant his claim.
24. Therefore, the Defendant shall pay the Claimant the sum of AED 2,000 in lieu of being provided with an air ticket.
End of Service Gratuity and Contributions to Qualifying Scheme
25. 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…”
26. The Claimant failed to provide a copy of his employment agreement to establish what is the Claimant’s basic wage. In the absence of any submissions filed by the Defendant, I shall consider the basic wage as per the Claimant’s monthly salary of AED 3,000.
27. The Claimant’s employment with the Defendant was for the period of 1 year and 9 days. As such, the Claimant would be entitled to contributions for the period between 26 May 2022 to 5 June 2023, being his last working day.
Between 26 May 2022 and 26 May 2023:
The Claimant’s monthly basic wage is AED 3,000 x 5.83% (being the minimum contribution amount defined by the Employment Law) = AED 174.90 per month x 1 year = AED 2,098.80.
9 days from 27 May 2023 to 5 June 2023:
AED 98.63 (being the Claimant’s daily basic wage) x 5.83% = AED 5.75 per day x 9 days = AED 51.75.
28. 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 2,150.55.
Unfair Dismissal
29. The Claimant argues that he is entitled to arbitrary termination compensation of two months in the sum of AED 6,000.
30. This Court has previously held that there is no principle of “unfair dismissal” in the DIFC, citing the judgment of Justice Tan Sri Dato’ Seri Siti Norma Yaakob in Rasmala Investments Ltd v Rana Banal & others [2009] DIFC CFI 006; the Judgment of Sir Anthony Colman in Hana Al Herz v DIFCA [2012] DIFC CFI 011; and the Judgment of Sir Anthony Colman in Marwan Lutfi v DIFCA [2012] CFI 003.
31. Having reviewed the aforementioned authorities and in accordance with the findings set out therein, I am of the view that there is no principle of arbitrary dismissal in the DIFC. I, therefore, dismiss the Claimant’s claim for compensation accordingly.
Visa Cancellation
32. Since the Employment relationship between the Claimant and the Defendant has ended as of 5 June 2023, the Defendant shall cancel the Claimant’s employment visa.
Conclusion
33. In light of the aforementioned, I find that the Defendant shall pay the Claimant the total sum of AED 44,038.22.
34. The Defendant shall pay the Claimant the Court fee in the sum of AED 880.76.
