February 09, 2023 SCT - JUDGMENTS AND ORDERS
Claim No: SCT 439/2022
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
BEFORE SCT JUDGE MAITHA ALSHEHHI
BETWEEN
MIRTI
Claimant
and
MOLIP
Defendant
| Hearing : | 26 January 2023 and 1 February 2023 |
|---|---|
| Judgment : | 9 February 2023 |
JUDGMENT OF SCT JUDGE MAITHA ALSHEHHI
UPON the claim having been filed on 7 December 2022
AND UPON a hearing having been held before SCT Judge Maitha AlShehhi on 26 January 2023, with the Claimant in attendance and the Defendant failing to appear
AND UPON a second hearing having been held before SCT Judge Maitha AlShehhi on 1 February 2023, with the Claimant in attendance and the Defendant failing to appear
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 (the “RDC”)
IT IS HEREBY ORDERED THAT:
1. The Defendant shall pay the Claimant the amount of AED 12,215.40.
2. The Defendant shall pay the Claimant the DIFC Courts’ filing fee in the amount of AED 379.99.
3. Each party shall bear their own costs.
Issued by:
Delvin Sumo
SCT Judge and Assistant Registrar
Date of issue: 9 February 2023
At: 1pm
THE REASONS
The Parties
1. The Claimant is Mirti (the “Claimant”), an individual filing a claim against the Defendant regarding her employment at the Defendant company.
2. The Defendant is Molip (the “Defendant”), a company registered in the DIFC, Dubai, UAE.
Background and the Preceding History
3. The underlying dispute arises out of the employment of the Claimant by the Defendant pursuant to a renewed employment contract dated 1 May 2021 (the “Renewed Employment Contract”). The Claimant’s monthly remuneration is set out to be AED 10,000 in the position of hair stylist.
4. The Claimant submits that the original contract provided for a monthly remuneration of AED 12,000 (the “Original Employment Contract”) and in support, the Claimant has provided her bank account statement to demonstrate that she has been receiving as salary payment from the Defendant the amount AED 12,000 and more.
5. On 14 October 2022, the Claimant submitted her resignation by way of email to the Defendant company.
6. On 7 December 2022, the Claimant filed a claim with the DIFC Courts’ Small Claims Tribunal (the “SCT”) seeking payment in the amount of AED 19,000 which represents her salary for the month of November 2022 in addition to her end of service gratuity.
7. On 16 January 2023, the parties attended a consultation before SCT Judge Delvin Sumo, however, they were unable to reach a settlement.
8. On 26 January 2023, in line with the rules and procedures of the SCT, this matter was referred to me for determination, pursuant to a hearing held (the “First Hearing”).
9. The Claimant attended the First Hearing while the Defendant failed to attend. The First Hearing was adjourned to a later time pursuant to the Defendant’s request to suit its schedule, however, the Defendant failed to attend.
10. On 1 February 2023, a second hearing was listed before me at which the Claimant attended, and the Defendant failed to attend for the second time (the “Second Hearing”).
11. I must note that the Defendant’s representative sent an email to the SCT on 27 January 2023 requesting that the Second Hearing be adjourned until a date after 8 February 2023 due to their busy schedule. However, this request was rejected as the Court had already accommodated the Defendant by adjourning the First Hearing.
12. Upon receipt of the Defendant’s request to adjourn the Second Hearing, the SCT Registry communicated to the Defendant on 27 January 2023 and 30 January 2023 stating that they may appoint any authorised officer or employee of the company to attend the Second Hearing pursuant to RDC 53.30 which states that “any of its full-time officers or employees may represent a corporate party at the consultation”. The SCT Registry made it clear that failure to attend may result in the claim being determined in their absence.
13. RDC 53.61 stipulates that “if a defendant does not attend the hearing and the claimant does attend the hearing, the SCT may decide the claim on basis of the evidence of the Claimant only”.
14. For the sake of completeness, I hereby order that the Defendant’s name is to be amended to reflect the company’s name as per the commercial license “Molip.”. The error made by the Claimant within the Claim Form is a common one and the SCT’s practice in these circumstances is for the judge presiding over the hearing to discover an error of incorrectly named litigants or parties and recommend that the parties be correctly spelled going forward. I have determined that this order be made of my own initiative.
The Claim
15. The Claimant’s case is that she has been employed with the Defendant company for a period of four years (by virtue of the Original Employment Contract and the Renewed Employment Contract) and she resigned on 14 October 2022 for personal reasons.
16. Following her resignation, the Claimant submits that she has worked during her notice period for one month, i.e until 30 November 2022 (15 days extra of the one-month notice period as requested by the Defendant and agreed by the Claimant). As such, the Claimant claims her notice period salary.
17. The Claimant submits that she does not have a copy of her Original Employment Contract (which was a 3-year contract) nor a copy of the Renewed Employment Contract as the Defendant company refused to hand it over to her despite repeated requests. Regardless, she continued to work for the Defendant company until her resignation.
18. The Claimant alleges that her salary is AED 12,000 as opposed to AED 10,000 as suggested by the Defendant and mentioned in the Renewed Employment Contract.
19. The Claimant further submits that her passport was confiscated by the Defendant company as a tactic to intimidate her which prompted her to file a claim with the SCT to seek her outstanding dues.
20. Moreover, the Claimant submits that she was forced to sign her visa cancellation form in order for her passport to be returned to her.
21. The signed visa cancellation form dated 14 November 2022 provides the following (the “Cancellation Form”):
“Employee Declaration:
I, the undersigned so hereby certify that I have received all my dues in respect of my salary and leave from my company that I have no rights to make any claims after this date.”
22. The Claimant alleges that she has worked overtime and should have been paid for it, however, the Claimant did not claim this as part of her claim.
The Defence
23. As expressed above, the Defendant failed to attend the First Hearing and Second Hearing and in accordance with 53.61, the SCT may proceed to determine the case based on the Claimant’s evidence.
24. After the Second Hearing, the Defendant sent an email on 1 February 2023 which reads as below (the “Defendant’s Email”):
“Dear Sirs/ Madam,
This is correct. We received the email last Oct 14 2022, and we acknowledged until she finished last November 30 her last day.
All she has to us is only her last salary in November. On her first contract she already took everything from us.
This second contract she will have only her salary as she broke her contract with us.
We stopped sending her the last salary in November because we found out that she already has a complaint against us that time is November 7, 2022 when we receive the claim form.
As per our policy we are giving the salaries between 7 to 10 so when she files a case against us we stop it and we wait for the courts advice about her case.
If any claims that she might receive, is only her salary from last November 2022 nothing more.”
Discussion
25. This dispute is governed by the Employment Law DIFC Law No.2 of 2019 (“DIFC Employment Law”) and in conjunction with the Renewed Employment Contract.
26. I shall set out below each of the Claimant’s claims and the Defendant’s reply to each of the Claims. For the matters that the Defendant failed to provide evidence to support their defence, the Court shall determine the matter on the basis of the DIFC Employment Law and the Renewed Employment Contract.
Payment in lieu of notice period
27. The Claimant is seeking payment for outstanding wage i.e her notice period which she has served from 15 October 2022 to 30 November 2022. The Claimant is seeking one month salary and is not claiming the 15 days extra that was agreed with the Defendant.
28. The Defendant provided the Court with a copy of the Renewed Employment Contract by way of email dated 1 February 2023.
29. The Defendant admits, in the Defendant’s Email, that the Claimant has worked during her notice period and further notes that payment is usually not made at the beginning of the month and that they were reluctant to provide her with her salary once they were notified of a claim being filed against them and will be waiting for the Courts directions.
30. Article 62(1) of the DIFC Employment Law stipulates the minimum notice period:
“62. Minimum notice periods
(1) An Employer or an Employee may terminate an Employee’s employment without cause in accordance with this Article.
(2) 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.”
31. In my view, the Cancellation Form does not have any bearing on the Claimant’s right to claim her end of service entitlements as such forms are a formality in order to process the visa cancellation effectively and in a speedy manner.
32. In line with Article 62(2)(b) of the DIFC Employment Law and given that there is no dispute that the Claimant has worked during her notice period, I shall grant the Claimant’s request for payment in lieu of her notice period in the amount of AED 10,000 as opposed to AED 12,000 in accordance with the Renewed Employment Contract.
End of service gratuity and contributions to the qualifying scheme
33. The Claimant is seeking her end of service gratuity in the amount of AED 7,000.
34. Article 19 of the DIFC Employment Law stipulates the following:
“(1) An Employer shall pay to an Employee, within fourteen (14) days after the Termination Date:
a. all Remuneration…
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)”
35. 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…”
36. The abovementioned clauses provide that an employer is required to pay to an employee, within 14 days of the employee’s termination date, a gratuity payment, in addition to amounts equal to the core benefits set out by the DIFC Employment Law, such amounts to be paid into a Qualifying Scheme.
37. Pursuant to Article 66(7) of the DIFC Law No. 4 of 2020 Employment Law Amendment Law (the “Amended Employment Law”), as of 1 February 2020, an employer is required, on a monthly basis, to pay to an employee with a registered qualifying scheme’s account, contributions in amounts set out within the scheme.
38. The parties have not provided any evidence to demonstrate that the Claimant has been enrolled into a qualifying scheme, nor has any evidence been provided to show that the Claimant would be exempted from being enrolled. In light of this, I hereby order the Defendant to pay the Claimant an amount equal to the minimum benefits set out by the DIFC Employment Law, which would reflect the contributions that the Defendant would have paid into the qualifying scheme had it complied with the requirements of the DIFC Employment Law. This is to be calculated as follows.
39. In the absence of the Original Employment Contract, which is unfortunate, I shall rely on the Renewed Employment Contract in relation to this matter.
40. The Claimant’s employment with the Defendant as per the Renewed Employment Contract was for the period of 1 year and 6 months. The Claimant would be entitled to contributions for the period between 1 May 2021 to 30 November 2022, being the Claimant’s last working day. This is to be calculated as follows:
Between 1 May 2021 – 30 November 2022:
The Claimant’s monthly basic wage is AED 2,000 x 5.83% (being the minimum contribution amount defined by the DIFC Employment Law) = AED 116.6 per month x 19 months = AED 2,215.40.
41. Therefore, in accordance with the above, the Claimant’s claim for end of service payment shall be granted. The Claimant’s entitlement in regard to contributions that should have been made by the Defendant to a qualifying scheme is set out to be AED 2,215.40.
Conclusion
42. In light of the aforementioned, I find that the Defendant is liable to pay the Claimant the amount of AED 12,215.40.
43. The Defendant shall pay the Claimant the DIFC Courts’ filing fee in the amount of AED 379.99.
44. Each party shall bear their own costs.
