July 28, 2023 SCT - JUDGMENTS AND ORDERS
Claim No. SCT 207/2023
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
MOJITA
Claimant
and
MOCKA RESTAURANT
Defendant
| Hearing : | 26 July 2023 |
|---|---|
| Judgment : | 28 July 2023 |
JUDGMENT OF H.E. JUSTICE NASSIR AL NASSER
UPON this Claim being filed on 1 June 2023
AND UPON a hearing having been held before H.E Justice Nassir Al Nassir on 26 July 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 sum of AED 1,661.
2. The Defendant shall cancel the Claimant’s employment visa.
3. 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: 28 July 2023
At: 12pm
THE REASONS
The Parties
1. The Claimant is Mojita (the “Claimant”), an individual filing a claim against the Defendant regarding her employment at the Defendant company.
2. The Defendant is Mocka Restaurant (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 employment agreement dated 1 March 2023 (the “Agreement”).
4. On 1 June 2023, the Claimant filed a claim with the DIFC Courts’ Small Claims Tribunal (the “SCT”) seeking payment from the Defendant for unpaid public holidays, tips in the sum of AED 1,661 and the cancellation of her visa.
5. On 6 June 2023, The Defendant filed an acknowledgment of service with the intention to defend all of the claim.
6. On 15 June and 7 July 2023, Consultations were 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 26 July 2023 at which the Claimant and the Defendant’s representative attended (the “Hearing”).
The Claim
8. The Claimant commenced employment with the Defendant on 1 March 2023. On 1 May 2023, the Claimant resigned.
9. The Claimant submits that she is entitled to tips in the sum of AED 1,800, payment in lieu of 5 days of accrued but untaken public holidays and the cancellation of her employment visa.
Defence
10. The Defendant submits that the Claimant resigned during her probationary period and draws the Courts’ attention to Article 21(3) of the DIFC Employment Law, which reads as follows:
“If an Employee terminates their Employment Contract for any reason other than termination for cause under Article 63, and their Termination Date falls within a period of six (6) months from the Employee's date of commencement of employment, the Employer may, subject to Article 57(2), recoup from the Employee such reasonable costs or expenses which:
(a) were directly incurred by the Employer in the course of recruiting the Employee;
(b) are supported by proof of expenditure provided by the Employer to the Employee; and
(c) are specified in the Employment Contract as being payable by the Employee to the Employer in such circumstances.”
11. The Defendant submits that the Claimant must pay the cost of recruitment in the sum of AED 7,750 which comprises the costs of her visa application and PSA.
12. The Defendant also adds that the Claimant has agreed on such payment in accordance with clause 1.10 of the Agreement, which provides as follows:
“The probation period of the employee will be for a period of 6 months. Either party may terminate the contract without notice during the probation period. If the Employee terminates the contract during the probation period, he/she will be liable to pay the recruitment expenses as per the DIFC Labour Law.”
13. Therefore, the Defendant submits that the Claimant must refund the Defendant the recruitment costs.
14. In relation to the tips, the Defendant submits that the Claimant is entitled to the sum of AED 1,233 for the period of 1 March 2023 to 30 April 2023.
15. In relation to the Claimant’s claim for payment in lieu of 5 days of public holidays, the Defendant submits that the Claimant was provided days off prior to the public holiday.
Finding
16. 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.
17. Article 11(1) of the DIFC Employment Law provides the following:
“(1) The requirements of this Law are minimum requirements and a provision in an agreement to waive any of those requirements, except where expressly permitted under this Law, is void in all circumstances.”
18. Article 57(1) and (2) of the DIFC Employment Law provides the following:
“Visas and Permits
(1) If an Employee is required to work in the DIFC, their Employer is required to obtain and maintain, at the Employer's own cost, the requisite sponsorship documentation (including UAE and DIFC identity documentation), visas, authorisations, licenses, permits and approvals as may be required from time to time by Federal Law, Dubai Law, a Competent Authority or a Personnel Sponsorship Agreement, to enable the Employee to work lawfully for the Employer in the DIFC and comply with any such requirements.
(2) An Employer is not permitted to:
(a) recoup any costs and expenses incurred pursuant to Article 57(1) from an Employee; or
(b) retain the passport or other original personal documents of an Employee.”
19. Although the Defendant submits that they are entitled to deduct the recruitment costs from the Claimant, Article 21(3) of the DIFC Employment Law is subject to Article 57(2) which provides that an employer is not permitted to recoup any costs and expenses incurred pursuant to Article 57(1).
20. In addition, Article 11(1) of the DIFC Employment Law provides that the requirement of the Law (i.e. the Employment Law) are the minimum requirements, therefore, the parties cannot waive those requirements except where it is expressly permitted.
21. Therefore, I find that the Defendant is not permitted to deduct any visa expenses from the Claimant.
22. In relation to the tips, I find that the Claimant is entitled to her tips however, in the sum of AED 1,233 as provided by the Defendant.
23. In relation to the claim for payment in lieu of 5 days of public holidays, I find that the Eid public holiday as formally announced by the Government of the UAE was set down to be for the period of only two days starting from 21 April to 22 April 2023.
24. The Defendant submits that the Claimant received two days off prior to the public holiday to cover for the period she will be working. However, from the evidence submitted by the Defendant it appears that the Claimant was off during her normal weekly shift days and not to cover for the public holiday. In addition, the Defendant failed to provide any communication to its employees that they will be entitled to take two days off prior to the Eid public holiday.
25. Article 32 of the DIFC Employment Law provides the following:
“Public Holidays and pay
“(1) An Employee is entitled to leave on each Public Holiday that is announced in the UAE by the relevant Competent Authority for the public sector or the private sector, whichever is applicable to the Employee's Employer, which falls on a Work Day.
(2) An Employer shall pay an Employee their Daily Wage for each Public Holiday.”
26. Article 16(1)(f) of the DIFC Employment Law provides:
“Payroll records
(1) An Employer shall keep records of the following information:
(f) the dates of the Public Holidays taken by the Employee and the daily wages paid by the Employer in respect thereof..”
27. I find that the Claimant is entitled to payment in lieu of two days of public holidays calculated as the following: the Claimant’s monthly salary of AED 7,500 x 12 months/260 days = daily wage of AED 346.15 x 2 days = AED 692.30.
28. In relation to the visa cancellation, as the Claimant has resigned and the employment relationship between the parties has ended, I find that the Defendant shall cancel the Claimant’s visa.
29. I find that the Claimant is entitled to the sum of AED 1,925.30, however, in the Claim Form the Claimant only claimed the sum of AED 1,661 therefore, I shall award the Claimant the sum that she has formally sought.
Conclusion
30. The Defendant shall pay the Claimant the sum of AED 1,661.
31. The Defendant shall cancel the Claimant’s employment visa.
32. The Defendant shall pay the Claimant the Court fees in the sum of AED 367.50.
