October 02, 2023 SCT - JUDGMENTS AND ORDERS
Claim No. SCT 267/2023
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
MUFTO
Claimant
and
MEKET
Defendant
| Hearing : | 25 September 2023 |
|---|---|
| Judgment : | 2 October 2023 |
JUDGMENT OF H.E JUSTICE NASSIR AL NASSER
UPON this Claim being filed on 20 July 2023
AND UPON a hearing having been held before H.E Justice Nassir Al Nassir on 25 September 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 Claimant is entitled to the total sum of AED 9,996.88.
2. The Claimant’s claim for visa expenses shall be dismissed.
3. The Defendant shall pay the Claimant the DIFC Courts’ filing fees in the sum of AED 367.50.
Issued by:
Hayley Norton
SCT Judge and Assistant Registrar
Date of issue: 2 October 2023
At: 1pm
THE REASONS
The Parties
1. The Claimant is Mufto (the “Claimant”), an individual filing a claim against the Defendant regarding his employment at the Defendant company.
2. The Defendant is Meket (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 5 February 2022, with a commencement date on 2 March 2022 (the “Agreement”).
4. On 20 July 2023, the Claimant filed a claim with the DIFC Courts’ Small Claims Tribunal (the “SCT”) seeking the total sum of AED 20,050, which represents the following claims:
(a) Pending salary for February and April in the sum of AED 2,800;
(b) Visa expenses in the sum of AED 9,500;
(c) Overstay fines paid by the Claimant in the sum of AED 3,700;
(d) One-month salary for annual leave accrued but untaken in the sum of AED 3,300; and
(e) Gratuity.
5. On 14 August 2023, the Defendant filed an acknowledgment of service with the intention to defend all of the claim.
6. On 16 August 2023, a Consultation was held before SCT Judge Hayley Norton 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 September 2023 at which the Claimant and the Defendant’s representative attended (the “Hearing”).
The Claim
8. The Claimant commenced employment with the Defendant on 2 March 2022. The Claimant’s monthly salary was set out to be AED 3,300 which consists of the following sums:
(a) Basic salary of AED 1,980;
(b) Accommodation allowance in the sum of AED 990; and
(c) Transportation allowance in the sum of AED 330.
9. The Claimant submits that during the course of his employment, the Defendant failed to provide him with an employment visa. Therefore, he submits that he was working with the company without a visa, which led to him accruing overstay fines.
10. On 8 February 2023, the Claimant decided to obtain his own visa from Mukirt Project Management Services in the sum of AED 9,500. On 7 March 2023, the Claimant provided the Defendant with a non-objection letter from the abovementioned company for the Claimant to work at the Defendant’s company.
11. The Claimant resigned from the Defendant on 18 June 2023. Following his resignation, he proceeded to file his claim with the SCT.
Defence
12. The Defendant submits that the Claimant is entitled to his pending salary claim of AED 2,800 for February and April 2023.
13. In relation to the overstay fines, the Defendant submits that it has “settled” the overstay fines in the sum of AED 6,500. However, the evidence provided by the Defendant which comprises payment vouchers in the sum of AED 3,050 dated 21 October 2022, 22 October 2022 and 19 December 2022.
14. At the Hearing, the Defendant confirmed that the Claimant is entitled to the sum of AED 762 for 21 days of accrued but untaken leave.
15. In relation to the Claimant’s claim of AED 9,500 representing third party visa expenses, the Defendant submits that the Claimant is not entitled to this amount, as he by his own will, decided to obtain a third party visa and it is not the Defendant who instructed the Claimant to do so.
16. In relation to gratuity, the Defendant submits that freelance visa holders are not entitled to gratuity or insurance as per the company policy.
Finding
17. 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
18. In relation to the pending salaries of February and April 2023, both parties confirmed that the Claimant is entitled to AED 2,800. AED 1,700 for February 2023 and AED 1,100 for April 2023.
Visa expenses of AED 9,500
19. The Claimant submits that due to the Defendant’s actions of failing to provide him with an employment visa, he decided to obtain a third-party visa to avoid overstay fines.
20. The Defendant submits that it was responsible for the overstay fines and the company did not instruct or direct the Claimant to obtain a third party visa, therefore, it was the Claimant’s choice and it is not the Defendant’s responsibility to pay for the Claimant a third party visa that he obtained on his own.
21. I find that the Defendant is not responsible for the third-party visa obtained by the Claimant. If the Claimant incurred fines due to his overstay, it is the Defendant’s responsibility to pay those fines.
22. Therefore, I dismiss the Claimant claim for visa expenses.
Overstay fines
23. The Claimant claimed the sum of AED 3,700 for overstay fines claiming that this amount was paid by him to the Judicial Department of Abu Dhabi.
24. The Claimant had an overstay fine of AED 14,950, which was later reduced by the Judicial Department in Abu Dhabi to AED 1,000. A further payment was required to lift the travel ban in the sum of AED 1,050. In addition, the Claimant provided a receipt from Myti Government Transaction, which states that a deposit was made in the sum of AED 2,050.
25. The Claimant submits that he paid AED 2,700 for the application to reduce the fines. However, he has failed to present any documentary evidence of an amount of AED 2,700 paid for an application.
26. The Defendant submits that it had paid the total sum of AED 6,500 in relation to the overstay fines, however, the receipts provided by the Defendant show that it has paid the sum of AED 3,050, received by an employee called Miwat. The receipts provided have no signature of receipt by the Claimant. In addition, the Claimant argues that he did not receive those amounts from the Defendant.
27. Therefore, I find that the Claimant is only entitled to the sum of AED 2,050 as reimbursement of the sums that he paid to the Judicial Department in Abu Dhabi as he has filed to provide any supporting evidence for the remaining balance.
Annual Leave
28. The Claimant claimed one-month salary for annual leave accrued but untaken in the sum of AED 3,300.
29. The Defendant submitted at the Hearing that the Claimant is entitled to the sum of AED 762 for 21 days of untaken leave.
30. Article 28(3) of the DIFC Employment Law provides that:
“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.”
31. The Agreement provides that the Claimant is entitled to 22 calendar days paid leave per year of service.
32. The Claimant submits that he did not utilise any of his leave balance. However, the Defendant calculated 21 days of leave balance.
33. In the absence of evidence from the Defendant that the Claimant utilised any of his leave balance, I will calculate his allowance pursuant to the 22 calendar days.
34. The Claimant’s monthly salary is AED 3,300 x 12 months = AED 39,600 / 260 days = AED 152.30 is the Claimant’s daily wage x 22 days = AED 3,350.60.
35. As the Claimant has only claimed the amount of AED 3,300, I shall make an order for that sum to be paid.
36. I find the Claimant is entitled to the sum of AED 3,300 in relation to his unpaid leave.
Gratuity
37. It is confirmed by both parties that the Claimant worked for the Defendant for a period of one year and four months.
38. The Defendant submits that the Claimant is not entitled to gratuity because he was not registered with the DIFC Employee Workplace Savings plan (“DEWS”) as he did not have an employment visa with the Defendant. In addition, the Defendant submits that individuals working under freelance visas are not entitled to receive gratuity as per the company policy.
39. I disagree with the Defendant’s approach. It is the Defendant’s responsibility to provide its employees with an employment visa which the Defendant has failed to obtain.
40. It was only following 1 year of employment that the Claimant decided to obtain a third party visa in order to avoid any potential absconding claims or further fines. I agree that the Claimant chose to obtain this type of visa however this does not mean that he has no entitlement to his gratuity for working with the Defendant.
41. Since the Claimant was not registered with DEWS, I shall calculate the Claimant’s claim for gratuity pursuant to the DIFC Employment Law.
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. …
(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…”
43. The calculation of 1 year and 4 months shall be as following:
The Claimant’s monthly basic wage is AED 1,980.
AED 1,980 x 5.83% (being the minimum contribution amount defined by the Employment Law) = AED 115.43 per month x 1 years and 4 months = AED 1,846.88
Conclusion
44. In the light of the abovementioned, I find the Claimant is entitled to the total sum of AED 9,996.88.
45. The Claimant’s claim for visa expenses shall be dismissed.
46. The Defendant shall pay the Claimant the DIFC Courts’ filing fees in the sum of AED 367.50.
