July 29, 2022 SCT - Judgments and Orders
Claim No. SCT 255/2022
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 OF DIFC COURTS
BEFORE H.E. JUSTICE NASSIR AL NASSER
BETWEEN
MIVTE
Claimant
and
MADIE
Defendant
| Hearing : | 25 July 2022 |
|---|---|
| Judgment : | 29 July 2022 |
JUDGMENT OF H.E JUSTICE NASSIR AL NASSER
UPON this Claim being filed on 28 June 2022
AND UPON a Hearing having been held before H.E Justice Nassir Al Nassir on 25 July 2022, 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 10,284.
2. The Defendant shall pay the Claimant the Court fee in the sum of AED 367.50.
Issued by:
Ayesha Bin Kalban
SCT Judge and Registrar
Date of issue: 29 July 2022
At: 10am
THE REASONS
The Parties
1. The Claimant is Mivte (the “Claimant”), an individual filing a claim against the Defendant regarding her employment at the Defendant company.
2. The Defendant is Madie (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 an offer letter dated 13 December 2021 (the “Offer Letter”). The Claimant’s salary as set out in the Offer Letter is AED 5,142.
4. On 28 June 2022, the Claimant filed a claim with the DIFC Courts’ Small Claims Tribunal (the “SCT”) seeking payment in lieu of 60 days’ notice period in the sum of AED 11,200.
5. On 4 July 2022, the Defendant filed an Acknowledgement of Service with the intention to defend all of this claim.
6. On 6 July 2022, 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 25 July 2022.
The Claim
8. The Claimant submits that she was working with the Defendant pursuant to the Offer Letter since 13 December 2021. On 17 June 2022, the Defendant’s owner informed her verbally that her services are no longer required and requested that the Claimant leave the Defendant’s premises immediately, which is considered to be the date of termination of the Claimant’s employment.
9. The Claimant submits that she was given a Settlement Letter on the date of the termination which states that she is being terminated for “Poor Performance” and “for always being sick”. However, the Claimant submits that not once during her employment with the Defendant was she told that her performance was inadequate nor had she ever faced a disciplinary issue with the Defendant.
10. The Claimant relies on clause 18.1 of the Offer Letter which provides that “After the completion of the probationary period, either party may terminate this employment by giving 60 days’ notice in writing or payment in lieu of notice.
11. Therefore, the Claimant filed a claim claiming the total sum of AED 11,200 in lieu of 60 days’ notice period.
The Defence
12. The Defendant submits that the Claimant was called on 17 June 2022 and was informed of her the termination and the reason behind it. The Defendant submits that it terminated the Claimant for cause pursuant to the DIFC Employment Law and provided a letter to that effect. The Defendant states that the Claimant failed to acknowledge the receipt of that letter.
13. The Defendant submits that the Claimant had two formal complaints from customers on 1 and 3 June 2022, and also the employee was warned verbally by the Defendant about her performance weeks before those two formal complaints.
14. The Defendant submits that they had to invite the customers who were affected to return at later days and redo the same services previously performed by the Claimant, free of charge.
15. The Defendant further submits that the Claimant was absent in 4 periods of 3 days, availing of a total of 12 days sick leave, and had already received a deduction of 50% after the 10th day of sick leave in accordance with the DIFC Employment Law.
16. Therefore, the Defendant submits that the reason to terminate for cause is after verbal and registered complaints received towards the Claimant and for alleged untoward behaviour towards the management when those complaints were disclosed to her.
Discussion
17. This dispute is governed by DIFC Law No. 2 of 2019, as amended by DIFC Law No. 4 of 2021 (the “DIFC Employment Law”) in conjunction with the relevant Offer Letter.
18. The claim before me only relates payment in lieu of 60 days’ notice period in the sum of AED 11,200.
19. In the Defendant’s submission, the Claimant is terminated for cause and is not entitled to payment in lieu of 60 days’ notice period pursuant to Article 63(3) of the DIFC Employment Law which provides the following:
“(3) if an Employer terminates the employment of an Employee for cause pursuant to Article 63(1):
(a) The Employee shall not be entitled to receive any payment of wages in lieu of their notice period; and
(b) The Employee’s gratuity payment and outstanding vacation leave shall be calculated up to the termination date.”
20. Article 63(1) of the DIFC Employment Law provides the following:
“An Employer or an Employee may terminate an Employee’s employment with immediate effect for cause in circumstances where the conduct of one (1) party warrants termination and where a reasonable Employer or Employee would have terminated the Employment as a consequences thereof.”
21. The Defendant alleges that the Claimant has received a verbal warning about her performance prior to 1 June 2022. However, the Defendant failed to provide any evidence of the Claimant’s inadequate performance.
22. The Defendant only provided two complaints occurred on 1 and 3 June 2022, where the Defendant submits that the termination with cause occurred based on those two complaints and the Claimant’s inappropriate behaviour towards the Defendant.
23. The Defendant again failed to provide any form of evidence to support the allegation which it states led it to terminate the Claimant’s employment for cause. This leaves us to determine whether the two complaints received on 1 and 3 June 2022 amount to termination for cause.
24. Termination for cause is a serious allegation as it deprives an employee from certain employment rights. To terminate for cause, one must look at the conduct of the Employee and determine whether it was intentional misconduct or a mistake. Some misconducts directly amount to termination for cause with immediate effect. However, the DIFC Employment Law does not provide the measures for termination for cause, but to be reasonable and fair, there is no evidence that the Claimant’s actions were intentional, and there is no evidence that the Defendant provided the Claimant with warnings to establish that the Claimant, although warned, continued with her actions.
25. Therefore, in the absence of evidence of previous warnings of misconduct and the absence of evidence of inadequate performance, I find that it is unfair to deprive the Claimant of her employment rights when the Defendant has failed to meet the burden of proof to convince the Court of the seriousness of the Claimant’s actions. I also find that the Claimant is entitled to her payment in lieu of two months’ notice in the sum of AED 10,284 as her salary is AED 5,142 per month.
26. The documentation provided by the Claimant is official documentation of sick leave, where, in the event that Claimant exceeded 10 days of sick leave, she will receive 50% of her salary as provided in Article 35 of the DIFC Employment Law:
“(1) Subject to the Employee's compliance with Article 34(2), an Employer shall pay Sick Pay to an Employee at:
(a) one hundred percent (100%) of the Employee's Daily Wage for the first ten (10) Work Days of Sick Leave taken in a twelve (12) month period; and
(b) fifty percent (50%) of the Employee's Daily Wage for the next twenty (20) Work Days of Sick Leave taken in the same twelve (12) month period.”
27. The Defendant at the hearing admitted that the Claimant is also entitled to other Employment entitlements and since the claim before me is only in relation to payment in lieu of the 60 days’ notice period, I have only decided the claim before me.
Conclusion
28. In light of the aforementioned, I find that the Claimant is entitled to payment in lieu of 60 days’ notice period in the sum of AED 10,284.
29. The Defendant shall pay the Claimant the Court fee in the sum of AED 367.50.
