June 06, 2023 SCT - JUDGMENTS AND ORDERS
Claim No. SCT 139/2023
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
MIRTU
Claimant
and
MOUNI
Defendant
| Hearing : | 16 May 2023 |
|---|---|
| Further submissions : | 29 May 2023 |
| Judgment : | 6 June 2023 |
JUDGMENT OF H.E JUSTICE NASSIR AL NASSER
UPON this Claim being filed on 3 April 2023
AND UPON a hearing having been held before H.E Justice Nassir Al Nassir on 16 May 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 Defendant shall pay the Claimant the total sum of AED 12,199.95.
2. The Defendant shall pay the Claimant the Court fees in the sum of AED 367.50.
Issued by:
Hayley Norton
SCT Judge and Assistant Registrar
Date of issue: 6 June 2023
At: 9am
THE REASONS
The Parties
1. The Claimant is Mirtu (the “Claimant”), an individual filing a claim against the Defendant regarding his employment at the Defendant company.
2. The Defendant is Mouni (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 29 January 2019 (the “Agreement”).
4. On 3 April 2023, the Claimant filed a claim with the DIFC Courts’ Small Claims Tribunal (the “SCT”) seeking various employment claims in the sum of AED 15,000.
5. The Defendant failed to file an acknowledgment of service.
6. On 3 May 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 16 May 2023 at which the Claimant and the Defendant’s representative attended (the “Hearing”). Following the Hearing, the parties agreed for further time to seek to attempt settlement discussions. However, on 29 May 2023, the parties failed to reach a settlement and this matter was reserved for judgment.
The Claim
8. The Claimant’s monthly salary as per the Agreement was set out to be in the sum of AED 3,500.
9. The Claimant filed a claim in the sum of AED 15,000 seeking 3 months’ salary in the sum of AED 9,500, end of service gratuity in the sum of AED 4,600, and the cancellation of his visa.
Defence
10. The Defendant submits that the Claimant has received all of his salaries except for the months of February and March 2023.
11. In relation to end of service gratuity, the Defendant submits that the Claimant is entitled to the sum of AED 880.27 for the period from 27 March 2019 to 31 January 2020. Thereafter, the Defendant submits that the from 1 February 2020 to 30 March 2023, the Claimant was registered with the DIFC Employee Workplace Savings Plan (“DEWS”).
Finding
12. 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.
Salary
13. At the Hearing, both parties agreed that the Claimant is owed his salaries for the months of February and March 2023, and that he is entitled to receive the total sum of AED 7,000.
The Claimant’s End of Service Gratuity
14. 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. …
(3) For the purposes of Article 66(2):
(a) an Employee’s Basic Wage shall not be less than fifty percent (50%) of the Employee’s Annual Wage;
(b) the daily rate of an Employee’s Basic Wage shall be calculated by dividing the Employee’s Basic Wage by three hundred and sixty five (365);
(c) all references to an Employee’s Basic Wage and Annual Wage shall be to those applicable to the Employee on the Employee’s Termination Date; a
…
(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…”
15. The Claimant’s employment with the Defendant was for the period of 29 January 2019 to 31 March 2023.
16. The Defendant submits that the Claimant was registered with DEWS. However, the Defendant failed to provide any evidence of registration.
17. The Claimant’s employment with the Defendant was for the total amount of 4 years, 2 month and 2 days. Thus, the Claimant would be entitled to contributions for the period between 29 January 2019 to 31 March 2023, being his last working day.
18. For the period 29 January 2019 to 31 January 2020, prior to implementing DEWS, the calculation would be in accordance with Article 66(2)(a), which is as follows:
The Claimant’s basic salary is AED 1,500 per month. However, due to Article 66(3)(a) of the DIFC Employment Law, an employee’s basic wage shall not be less than fifty percent (50%) of the employee’s annual wage. Therefore, the Claimant’s daily basic salary shall amount to AED 1,750 x 12 months/365 days= AED 57.53 x 21 days = AED 1,208.13 for the first year. For the remaining 2 days prior to implementing DEWS, the calculation shall be AED 57.53 x 2 days = AED 115.06.
19. In relation to the remaining 3 years and 2 months, it shall be calculated as following:
Between 1 February 2020 – 1 February 2023:
The Claimant’s monthly basic wage is AED 1,750.
AED 1,750 x 5.83% (being the minimum contribution amount defined by the Employment Law) = AED 102.02 per month x 3 years = AED 3,672.72.
Between 1 February 2023 to 31 March 2023:
AED 102.02 x 2 months = AED 204.04.
20. 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 3,876.76.
21. The total sum the Claimant is entitled to as end of service gratuity is AED 5,199.95.
Conclusion
22. I find that the Defendant shall pay the Claimant the total sum of AED 12,199.95.
23. I find that the Defendant shall pay the Claimant the Court fees in the sum of AED 367.50.
