March 08, 2023 SCT - JUDGMENTS AND ORDERS
Claim No. SCT 027/2023
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
MUBIN
Claimant
and
MIKRUN
Defendant
Hearing : | 23 February 2023 |
---|---|
Judgment : | 8 March 2023 |
JUDGMENT OF H.E JUSTICE NASSIR AL NASSER
UPON this Claim being filed on 18 January 2023 and amended on 17 February 2023
AND UPON a hearing having been held before H.E Justice Nassir Al Nassir on 23 February 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 46,675.73.
2. The Defendant shall provide the Claimant one round-trip economy airfare ticket to his home country.
3. The Defendant shall pay the Claimant the Court fee in the sum of AED 933.51.
Issued by:
Delvin Sumo
SCT Judge and Assistant Registrar
Date of issue: 8 March 2023
At: 3pm
THE REASONS
The Parties
1. The Claimant is Mubin (the “Claimant”), an individual filing a claim against the Defendant regarding his employment at the Defendant company.
2. The Defendant is Mukrin (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 employment agreement dated 12 December 2020 (the “Agreement”). The Claimant commenced his employment with the Defendant on 15 August 2019.
4. On 18 January 2023, the Claimant filed a claim with the DIFC Courts’ Small Claims Tribunal (the “SCT”) seeking various employment claims in the sum of AED 51,518.
5. On 6 February 2023, the Defendant filed an Acknowledgment of Service with the intention to defend all of the claim.
6. On 10 and 16 February 2023, a Consultation was held before SCT Judge Maitha AlShehhi, 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 23 February 2023 (the “Hearing”).
The Claim
8. The Claimant’s monthly salary as per the Agreement was set out to be in the sum of AED 5,000 per month.
9. The Claimant is seeking the total sum of AED 51,518 which consists of the following claims:
(a) The sum of AED 12,800 as unpaid salary for October, November and December 2022;
(b) Salary for 17 days of January 2023 in the sum of AED 2,833.33.
(c) The sum of AED 2,000 as deducted salary during his annual leave;
(d) The sum of AED 10,000 as payment in lieu of accrued but untaken annual leave for 2 years;
(e) 40 days of untaken public holidays in the sum of AED 6,680;
(f) End of service gratuity for 3 years and 5 months;
(g) The sum of AED 10,000 for two months’ termination salary;
(h) Payment of a flight ticket in the sum of AED 2,000; and
(i) Visa Cancellation.
10. The above listed claims are based upon a document entitled ‘Final Settlement’ filed with the Court by the Claimant.
The Defence
11. The Defendant denies the Claimant’s claims on the basis that neither party terminated the Agreement by providing a notice of termination as required by the DIFC Employment Law.
12. The Defendant submits that the Claimant is only entitled to the sum of AED 15,467 which consists of the following payments:
(a) Partial payment of October salary in the sum of AED 2,800;
(b) November and December 2022 salaries in the sum of AED 10,000;
(c) Pending salary for 16 days of January 2023 in the sum of AED 2,667; and
(d) End of Service gratuity/DEWS.
Discussion
13. 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.
14. The Claimant did not resign nor was he terminated; however, his last working day was on 17 January 2023. I shall consider the Claimant’s act of filing a case with the Court to claim his end of service entitlements on 18 January 2023 as the Claimant’s resignation. In addition, the Defendant’s restaurant was closed by Dubai Police as of 18 January 2023 until further notice, thus, preventing the Claimant from accessing the workplace in any event.
15. As such, I have concluded that the Claimant worked with the Defendant from 15 August 2019 to 17 January 2023.
16. The Claimant’s monthly salary was in the sum of AED 5,000 of which AED 3,000 was the basic salary.
17. I shall set out each of the Claimant’s claims below and provide my determination as to whether the Claimant is entitled to these claims.
Salaries
18. The Claimant’s submission and the Defendant’s calculation both provide that the Claimant received a partial salary in October 2022, and the remaining balance to be paid is in the amount of AED 2,800.
19. In relation to the salaries for November and December 2022, the Defendant submits that the Claimant is entitled to his salary in the sum of AED 10,000 for both months.
20. In relation to January 2023, the Claimant claims that he is entitled to payment for 17 days, as his last working day was on 17 January 2023, however, the Defendant submits that the Claimant’s last working day was on 16 January 2023.
21. I agree with the Claimant’s calculation of 17 days as the Defendant was operating up until 17 January 2023, and Dubai Police closed the restaurant as of 18 January 2023. Therefore, I find that the Claimant is entitled to his salary for 17 days of January 2023 in the sum of AED 2,833.33.
22. The Claimant also claimed that during his annual leave, the Defendant only paid him a salary of AED 3,000 (which was the basic salary only), when he should have been paid his full salary (i.e. AED 5,000). As such, the Claimant claims the remaining balance in the sum of AED 2,000.
23. The Defendant failed to provide any evidence to demonstrate that the Claimant received his full salaries and that no deductions had been made. The Defendant presented a written submission to the Court, without any supporting evidence.
24. Article 16(c) and (e) of the DIFC Employment Law states the following:
“Payroll Records
(1) An Employer shall keep record of the following information:
(c) the Employee’s remuneration (gross and net, where applicable), and the applicable pay period;
(e) each deduction made from the Employee’s remuneration and the reason for it;”
25. I find that the Defendant has failed in its duty to keep a clear record of the payments made to the Claimant. Therefore, I order that the Defendant shall pay the Claimant the sum of AED 2,000 as the balance of the deducted salary.
26. In light of my findings above, I find that the Claimant is entitled to his salaries in the total sum of AED 17,633.33.
Annual Leave and Public Holidays
27. The Claimant is seeking the following relief: (i) payment in lieu of accrued but untaken annual leave in the sum of AED 10,000 for two years; (ii) public holidays in the sum of AED 6,680 for 40 days during 2019, 2020, 2021 and 2022; and (iii) payment of a flight ticket in the sum of AED 2,000.
28. Clause 12 of the Agreement provides as follows:
“Annual leave entitlement: in addition to United Arab Emirates Public holidays (as declared for the private sector) the Employee will be entitled to 30 (thirty) calendar days of annual leave. Annual leave should be taken with the least disruption of the operation and prior approval must be obtained from you manager and HR manager. Annual leave should be taken during the current calendar year it is earned, unless required by operation and justified by General Manager and approved by Managing partner and Group HR. otherwise leave balance cannot be cashed and cannot be carried forward”.
29. The Claimant claimed payment in lieu of accrued but untaken annual leave for two years in the sum of AED 10,000.
30. Article 16(1)(g) of the DIFC Employment Law states the following:
“Payroll Records
(1) An Employer shall keep record of the following information:
(g) the dates of Vacation Leave taken by the Employee and the Daily wages paid by the employer in respect thereof and the vacation leave balance owing.”
31. The Defendant failed to provide any evidence pursuant to Article 16(1)(g) of the DIFC Employment Law. In addition, the Defendant failed to provide any evidence in support of Clause 12 of the Agreement.
32. Article 28(1) of the DIFC Employment Law states as follows:
“where an Employee’s employment is terminated, the employer shall pay the Employee an amount in lieu of a Vacation leave accrued but not taken up to and including the termination date calculated in accordance with Article 28(3) “Compensation in lieu of Vacation Leave, or any amount owed by the Employee in respect of excess Vacation Leave taken, shall be calculated using the Employee's Daily Wage at the Termination date”.
33. The Claimant’s daily wage is calculated as follows: AED 5,000 x 12 months/260 days = AED 230.76 per day x 60 days of annual leave accrued but untaken for 2 years = AED 230.76 x 60 days= AED 13,845.60.
34. I find that the Claimant is entitled to AED 13,845.60 for the annual leave accrued but untaken for 2 years. I note that the Claimant is only claiming the sum of AED 10,000 for his annual leave, therefore, I shall award the sum as claimed by the Claimant.
35. The Claimant also argues that he has worked during the public holidays in 2019, 2020, 2021, 2022 which calculates to 40 days and is therefore entitled to payment for the days worked the sum of AED 6,680.
36. The Defendant failed to provide evidence to demonstrate that the Claimant has been paid for the public holidays for 2019, 2020, 2021 and 2022.
37. Article 16(1)(f) of the DIFC Employment Law states the following:
“Payroll Records
(1) An Employer shall keep record of the following information:
(f) the dates of Public Holidays taken by the Employee and the Daily wage paid by the Employer in respect thereof;”
38. I find that the Defendant has failed in its duty to maintain a payroll record as required by Article 16(1)(g) above, therefore, the Claimant is entitled to payment for 40 public holidays for the years 2019, 2020, 2021 and 2022.
39. As per Article 32(2) of the DIFC Employment Law, it states that “an employer shall pay an employee their daily wage for each public holiday.”
40. Therefore, the calculation is as follows: AED 230.76 x 40 days = AED 9,230.40.
41. Note that the Claimant has only claimed the sum of AED 6,680, therefore, I shall award the sum as claimed by the Claimant.
End of Service Gratuity and Contributions to Qualifying Scheme
42. 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…”
43. The Defendant provides that the Claimant has been enrolled into a qualifying scheme. However, the Claimant provided an email from the administration team responsible for managing the DIFC Employee Workplace Savings Plan (“DEWS”) dated 1 February 2022, which confirmed that the Defendant has not made any contributions into the Claimant’s DEWS account for October 2022.
44. I shall determine the amount the Claimant is entitled to throughout his employment, and, if the contributions made into the qualifying scheme are less than the Claimant’s entitlement, the Defendant shall be liable pay the Claimant the difference.
45. The Claimant’s employment with the Defendant was for the period of 3 years, 5 months and 2 days. As such, the Claimant would be entitled to contributions for the period between 15 August 2019 to 17 January 2023, being the termination date, I have determined previously in the course of this Judgment.
Between 15 August 2019 – 17 January 2023:
The Claimant’s monthly basic wage is AED 3,000 x 5.83% being the minimum contribution amount defined by the Employment Law) = AED 174.90 per month x 3 years and 5 months = AED 7,170.90
Two days of 16 and 17 January 2023:
AED 98.63 (being the Claimant’s daily basic wage) x 5.83%= AED 5.75 per day x 2 day = AED 11.50.
46. 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 7,182.40.
Two Months’ Termination Salary
47. The Claimant claimed two months of termination salary in the sum of AED 10,000.
48. Clause 17 of the Agreement provides as follows:
“after completion of the probation period, either Employee or the Company may terminate the employment by giving thirty (30) days written notice or if agreement is reached for a shorter notice period; except in cases of gross misconduct, where the notice period may be waived. If an Employee does not provide the company with the requisite notice period as per this agreement, the Employee will be required to compensate the company for any costs incurred by the company of the employee’s behalf; such as accommodation and for the period of notice period that Employee should have provided to the company.”
49. The Claimant’s claim of two months termination salary is unclear and not supported by either the DIFC Employment Law or the Agreement.
50. The Claimant is only entitled to a one-month notice period as per the Agreement. Although the Claimant did not work his notice period, I find that this was out of his control since the Defendant had been closed by a Dubai Police order until further notice. In addition, the Defendant failed to provide any evidence of when it would be operating after the closure.
51. I find that the Defendant shall pay the Claimant a one month notice period in the sum of AED 5,000.
Flight ticket
52. Clause 13 of the Agreement provides as follows:
“Airline Ticket Entitlement: upon completion of 24 (twenty four) months uninterrupted service with the company, the employee will be entitled to 1 (one) round-trip economy ticket and in each subsequent period of 24 (twenty four) months, to the nearest international airport destination in your home country to coincide with the Employee’s annual leave. the amount for the ticket, which will be set on a yearly basis, will be transferred to the employee on his/her anniversary month.”
53. The Claimant claimed the sum of AED 2,000 as payment for a flight ticket. In response, the Defendant submits that the Claimant is only entitled to his pending salaries and DEWS payment as the Claimant did not yet resign.
54. Upon determination that the Claimant’s last day of work fell on 17 January 2023, the Claimant is to be treated as having completed his employment with the Defendant for the period of 3 years and four months. The Defendant failed to provide any evidence to show that the Claimant had received his flight ticket. Equally, the Claimant failed to provide a quotation from an airline to show that a flight ticket to his home country would cost the sum of AED 2,000, as he claims.
55. Therefore, I find that the Defendant shall provide the Claimant one round-trip economy airfare ticket to his home country.
Visa Cancellation
56. Since the Employment relationship between the Claimant and the Defendant has ended as of 17 January 2023, the Defendant shall cancel the Claimant’s employment visa.
Conclusion
57. In light of the aforementioned, I find that the Defendant shall pay the Claimant the total sum of AED 46,675.73
58. The Defendant shall provide the Claimant one round-trip economy airfare ticket to his home country.
59. The Defendant shall pay the Claimant the Court fee in the sum of AED 933.51.