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Claim No: SCT 414/2022

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

In the name of His Highness Sheikh Mohammad Bin Rashid Al Maktoum, Ruler of Dubai

IN THE SMALL CLAIMS TRIBUNAL

BEFORE H.E. JUSTICE MAHA AL MHEIRI

BETWEEN

MIRUYA

Claimant

and

MAHUB

Defendant

JUDGMENT OF H.E. JUSTICE MAHA AL MHEIRI

UPON the Claim Form being filed on 15 November 2022

AND UPON a Second Hearing being held before H.E. Justice Maha Al Mheiri on 27 February 2023, with the Claimant in attendance and the Defendant’s representative failing to attend

AND UPON reading the submissions 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 31,534.94.

2. The Defendant shall pay the Claimant the Court fee in the amount of AED 630.70.

Issued by:
Hayley Norton
SCT Judge and Assistant Registrar
Date of issue: 9 March 2023
At: 2pm

THE REASONS

Parties

1. The Claimant is Miruya (the “Claimant”), an individual filing a claim against the Defendant regarding his employment at the Defendant company.

2. The Defendant is Mahub (the “Defendant”), a company registered in the DIFC located at DIFC, Dubai.

Background and Hearing

3. The underlying dispute arises over the employment of the Claimant by the Defendant pursuant to an offer letter dated 7 April 2020 (the “Employment Contract”). The Claimant was hired in the position of ‘Driver’ with a monthly salary of AED 3,000, consisting of the following:

4. The Claimant was not paid his full salary starting from his first month working with the Defendant. The Claimant constantly reminded the Defendant for payment of his salary, but the Defendant would only pay him partial sums each month.

5. On 7 September 2022, the Claimant went on annual leave until 24 September 2022. On 25 September 2022, he reported back to work but was told by the Defendant to leave the restaurant and they would contact him for a new position. After a week, the Claimant contacted the Defendant and was offered the position of ‘cleaner’ at the restaurant. The Claimant declined the offer as he suffered from an injury that made it hard to perform that particular role.

6. Thereafter, it appears that the Claimant was neither terminated nor did he resign. The Claimant’s last day working with the Defendant was on 24 September 2022.

7. On 15 November 2022, the Claimant filed a claim in the DIFC Courts’ Small Claims Tribunal (the “SCT”) claiming various sums, set out as follows:

8. The Defendant failed to file an acknowledgment of service or file a defense to the claim. On 27 January 2023, the Defendant filed a written statement with the Court submitting that the Claimant stopped working for over a year and did not give any notice to the Defendant. The Defendant did not support this argument with any evidence, as such the Court will not take into consideration this argument.

9. The parties met for a Consultation with SCT Judge Maitha AlShehhi on 15 February 2023 but 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 Second Hearing held on 27 February 2023 with the Claimant in attendance and the Defendant’s representative absent although served with notice.

11. RDC 53.61 of the Rules of the DIFC Courts 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”.

Discussion

12. This dispute is governed by the DIFC Law No. 4 of 2021 (Employment Law Amendment Law) (hereafter the “DIFC Employment Law”) in conjunction with the relevant Employment Contract.

13. Before dealing with the Claimant’s claims, the Court will first deal with the Claimant’s last working day to establish the Claimant’s entitlements. For the matters that the Claimant failed to provide evidence to support his claim the Court shall determine the matter on the basis of the DIFC Employment Law and the Employment Contract.

14. At the hearing, the Claimant confirmed that he returned from his annual leave on 24 September 2022, and was informed by the Defendant to leave the premises on the basis that he will be contacted about his new position. The Claimant did not resume back to his position as a driver for the Defendant again. As such, I shall treat the Claimant’s last working day with the Defendant to be 24 September 2022.

Outstanding salary

15. The Claimant is seeking payment for his outstanding salary in the sum of AED 18,450 from the time he started working in April 2020 until his last working day being 24 September 2022. The Claimant submits that he was not paid his full salary for some months and other months he was not paid at all. The Claimant provided a table to show the months that he has not been paid.

16. Article 16 of the DIFC Employment Law states as follows:

17. Due to the Defendant’s failure to submit any evidence to prove that full salary payments were made to the Claimant, the Court shall accept the Claimant’s submissions and order that the Defendant shall pay the Claimant the amount of AED 18,450.

Payment in lieu of unpaid annual leave

18. The Claimant claims an amount of AED 6,000 as the amount accrued against his unpaid annual leave. The Claimant submits that he did go on vacation availing his annual leave but the days he went on annual leave were unpaid. The Claimant claims this pursuant to Clause 2 of the Employment Contract, which reads as follows:

19. The Claimant submits that he is entitled to be paid for 30 days’ leave per year, for the years 2021 and 2022. The Claimant therefore claims payment of 60 days of annual leave to be paid to him by the Defendant.

20. Article 27 of the DIFC Employment Law states as follows:

21. I do not agree with the Claimant’s calculation for annual leave, as I find that the Claimant did not complete 12 months of working in 2022, thus enabling him to avail the 30 days’ annual leave per annum. The accrual of annual leave is carried out gradually throughout the year, and upon the resignation or termination of an employment relationship, any amounts owed would be pro-rated against the amount of time passed during the course of that year. The Claimant’s last working day was 24 September 2022, which resulted in the Claimant accumulating 21.92 days pro-rated until his notice period.

30 days per annum/12 months = 2.5 x 8 months and 24 days = 21.92 days

22. The Defendant has not provided any evidence to oppose the Claimant’s Claim. As such, the Claimant is entitled to payment in lieu of 30 days’ annual leave for the years 2021 and 21.92 days in 2022. As such, I find that the Claimant shall be paid the amount of AED 7,188.84 (3,000 x 12 /260 = AED 138.46 x 51.92 days = AED 7,188.84).

23. As such, I order that the Defendant shall pay the Claimant the Amount of AED 7,188.84.

Flight Allowance

24. The DIFC Employment Law is silent on an employee’s entitlement to an airfare in the form of an allowance. Such a benefit is common in employment relationships, and the general practice in this Court is to proceed with what is agreed upon by the parties in the Employment Contract they have entered into.

Clause 2 of the Employment Contract stipulates as follows:

25. In light of this, I find that the Claimant is entitled to his airfare for an economy flight ticket to Pakistan in the amount of AED 1,050.

Payment in Lieu of Public Holidays

26. The Claimant argues that he is entitled to payment in lieu of 35 days of public holidays that he worked in the years 2020 to 2022, until his last working day, in the sum of AED 3,500. The Claimant has failed to specify which public holidays he wishes to claim payment against.

27. It is the employer’s duty to keep a record of their employees’ attendance, as well as days worked, annual leave taken, and public holidays worked. The Defendant failed to fulfil its duty towards the Claimant by keeping such a record.

Article 16(g) of the DIFC Employment Law states the following:

Therefore, I find that the Claimant shall be paid the amount of AED 4,846.10 as payment for the 35 public holidays worked (3,000 x 12 /260 = AED 138.46 x 35 = AED 4,846.1).

Conclusion

28. In light of the aforementioned, I find that the Defendant shall pay the Claimant the sum of AED 31,534.94.

29. I am of the view that, as the Claimant has been successful in his claims, he is entitled to recover the court fee applicable to the filing of this case. The Defendant shall therefore pay to the Claimant the amount of AED 630.70 for the Court fee.