November 24, 2023 SCT - JUDGMENTS AND ORDERS
Claim No. SCT 321/2023
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
MUSAQI
Claimant
and
MERABS
Defendant
| Hearing : | 9 November 2023 |
|---|---|
| Judgment : | 24 November 2023 |
JUDGMENT OF H.E JUSTICE NASSIR AL NASSER
UPON this Claim being filed on 25 August 2023 and amended on 11 and 14 September 2023 (the “Claim”)
AND UPON a hearing having been held before H.E Justice Nassir Al Nassir on 9 November 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 23,632.26 plus interest at the rate of 9% per annum from the date of this Judgment until the date of full payment.
2. The Defendant shall pay the Claimant the Court fees in the sum of AED 693.10
Issued by:
Hayley Norton
SCT Judge and Assistant Registrar
Date of issue: 24 November 2023
At: 11am
THE REASONS
The Parties
1. The Claimant is Musaqi (the “Claimant”), an individual filing a claim against the Defendant regarding her employment at the Defendant company.
2. The Defendant is Merabs (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 20 January 2022 (the “Agreement”).
4. On 25 August 2023, the Claimant filed a claim with the DIFC Courts’ Small Claims Tribunal (the “SCT”) seeking various payments related to her employment in the sum of AED 34,632.26. On 11 and 14 September 2023, the Claimant amended her claim and reduced the claimed sum to AED 23,632.26.
5. On 28 September 2023, the Defendant filed an acknowledgment of service with the intention to defend all of the claim.
6. On 3 October 2023, 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 9 November 2023 at which the Claimant and the Defendant’s representative attended (the “Hearing”).
The Claim
8. The Claimant submits that she commenced working on 20 January 2022. On 31 May 2023, Mr. Mubri and herself verbally agreed that after her vacation at the end of June 2023 they would end the Agreement on the grounds that the company will be closed.
9. The Claimant submits that she received an email from Mr. Mubri with confirmation of resignation and the Agreement. On 15 June 2023, she submits that she received an email attaching a “DIFCA Employment Permit Cancellation” form and was asked to sign it. However, she communicated with the Defendant to close all her financial obligations and end the employment. The Claimant submits that most of her emails were unanswered.
10. The Claimant submits that she is entitled to the following:
(a) Last payment due in the sum of AED 11,000;
(b) DEWS in the sum of AED 6,541.26 for 17 months;
(c) Penalties for non-payment as of 23 August 2023 in the sum of AED 14,465.75 (and continuing to accrue at a daily rate of AED 361.64); and
(d) A return ticket to her home country in the sum of AED 2,626.
11. On 12 September 2023, the Claimant confirmed receiving the sum of AED 11,000 from the Defendant which is in relation to payment in lieu of the notice period. On 13 September 2023, the Claimant amended the claim and reduced the claimed amount to AED 23,632.26.
12. As per the amendment, the Claimant now claims the following:
(a) 28.94 days of accrued but untaken annual leave in the sum of AED 15,697.96;
(b) DEWS in the sum of AED 6,657.20;
(c) Air Ticket to her home country in the sum of AED 3,267.05;
(d) Penalties pursuant to Article 19 of the DIFC Employment Law from 15 July 2023 to 12 September 2023 in the sum of AED 29,953.71; and
(e) Court fees and interest on the Judgment in accordance with Practice Direction No. 4 of 2017.
Defence
13. The Defendant submits that the Claimant was given many chances, help and support over the 18 months, however, the Claimant failed to generate income for the Defendant.
14. The Defendant submits that the Claimant’s final salary was delayed due to an extended trip in France linked to serious health issues with his parents (who provide the funding for the initiative). The Claimant submits that he was meant to be in France for 1 week and ended up staying there 2 months.
15. The Defendant submits that the Claimant’s final salary was paid to her. She sent proof of this to the Court. She was provided with a flight home, with a week off, to spend time with her mother and family who she had not seen in a long time.
16. The Defendant submits that he is not aware of the DEWS system.
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.
18. The Claimant’s claims the total sum of AED 23,632.26 towards her entitlements; therefore, if successful, the Claimant shall only be awarded a sum to the value of what she has claimed and not greater.
Notice Period
19. The Claimant commenced work from 20 January 2022 to 30 June 2023. On 31 May 2023, the Defendant confirmed the Claimant’s resignation effective from 1 June 2023 to 30 June 2023.
20. On 15 June 2023, the Claimant submits that she was verbally asked not to return to the office for the remainder of the notice period as the Defendant plans to cease operations within the DIFC and asked the Claimant to handover the laptop and the phone. On 19 June 2023, the Claimant was denied access from working chats with the marketing team and production for Merabs.
21. The Claimant submits that she was not granted consent to work and attend the office from 13 June 2023 to 30 June 2023.
22. Therefore, in accordance with the evidence provided, the Claimant served her notice period from 1 June 2023 to 30 June 2023, and she was paid her salary in the sum of AED 11,000 on 12 September 2023.
Annual Leave
23. The Claimant claims payment in lieu of 28.94 days’ vacation leave in the sum of AED 15,697.96.
24. Article 16(1)(g) of the DIFC Employment Law provides the following:
“(1) an Employer shall keep records 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;…”
25. The Defendant failed to provide a record of the annual leave taken by the Claimant. In the absence of such records which is required to be kept by the Defendant pursuant to Article 16(1)(g) above, I shall calculate the Claimant’s entitlement below.
26. The Claimant worked for 1 year, 5 months and 11 days from 20 January 2022 to 30 June 2023. Therefore, the Claimant can only carry over 5 workdays per vacation leave year pursuant to Article 27(3) of the DIFC Employment Law:
“An Employee is entitled to carry forward accrued but untaken Vacation Leave into the next Vacation Leave Year for a maximum period of twelve (12) months after which any unused Vacation Leave shall expire. The amount of accrued but untaken Vacation Leave to be carried forward may be agreed between the Employer and Employee, provided that nothing shall preclude an Employee from rolling over at least five (5) Workdays per Vacation Leave Year.”
27. Clause 6.1 of the Employment Contract provides the following:
“in addition to any holidays which are declared by the United Arab Emirates Ministry of Labour and Social Affairs to be public holidays for the private sector in the United Arab Emirates, the Employee will be entitled to twenty-two (22) days paid holiday in each calendar year of completed employment. The holidays are to be taken at times which are mutually acceptable. It is the company’s policy that no more than four (4) weeks holiday may be taken consecutively at any one time. Holidays may be carried over into the following year subject to a maximum carryforward of ten (10) days per calendar year and there shall be no payment in lieu on any holidays not taken in any year.”
28. The Claimant submits that she is entitled to 20 days for the first year, 8.33 days for the 5 months and 0.612 days for the 11 days. However, pursuant to Article 27(3) of the DIFC Employment Law and the Agreement, the Claimant may only carry over 10 days of accrued but untaken annual leave.
29. The Claimant is entitled to 10 days only for the first year, and the Claimant is entitled to 9.15 for the 5 months and for the 10 days from 20 June 2023 to 30 June 2023 the Claimant is entitled to 0.61 days.
30. Article 28(3) of the DIFC Employment Law provides the following:
“compensation in lieu of vacation leave
(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.”
31. The daily wage shall be calculated as follows:
AED 11,000 x 12 months = AED 132,000/260 working days = AED 507.69 in daily wage.
32. The Claimant’s total entitlement towards vacation leave shall be the following: 19.76 days x AED 507.69 = AED 10,031.95 for the period of 1 year, 5 months and 10 days.
Gratuity
33. It is confirmed that the Claimant was not registered with DIFC Employee Workplace Savings plan (“DEWS”). Since the Claimant was not registered with DEWS, I shall calculate the Claimant’s claim for gratuity pursuant to the DIFC Employment Law.
34. 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…”
35. The calculation of 1 year and 5 months and 10 days shall be as following:
The Claimant’s monthly basic wage is AED 6,600.
AED 6,600 x 5.83% (being the minimum contribution amount defined by the Employment Law) = AED 384.78 per month x 1 year, 5 months and 10 days = AED 6,669.52.
Air Ticket
36. The Claimant claims the amount of an economy class air ticket from Dubai to her home country in the sum of AED 3,267.05 in accordance with clause 5.2 of the Agreement which provides that “for every completed one year of Employment, the Employee will benefit from a return economy class air ticket from Dubai to his home country once.”
37. The Defendant submits that the Claimant was provided an air ticket to Georgia then Armenia on 17 May 2022. However, the Claimant submits that this trip was a business trip and not related to her entitlement in accordance with the Agreement.
38. The Claimant submits that it was a business trip but during the business trip to Georgia where her family were, she visited them but then flew to Armenia.
39. The Defendant failed to provide evidence that it was not a business trip as the tickets and the Claimant’s submissions suggest that it was a business trip.
40. Therefore, I find that the Claimant is entitled to an air ticket to her home country in the sum of AED 3,267.05.
Penalties under Article 19 of the DIFC Employment Law
41. The Claimant submits that upon her resignation, the Defendant had an obligation to finalise and pay her end of service entitlements within 14 days in accordance with Article 19 of the DIFC Employment Law.
42. Article 19 of the DIFC Employment Law provides the following:
“19. Payments following termination
(1) An Employer shall pay to an Employee, within fourteen (14) days after the Termination Date:
(a) all Remuneration, excluding, where applicable, any Additional Payments deferred in accordance with Article 18(2);
(b) where applicable, any Gratuity Payment that accrued prior to the Qualifying Scheme Commencement Date under Article 66(1) not transferred to a Qualifying Scheme under Article 66(6);
(c) a Daily Wage for each day of accrued Vacation Leave not taken; and
(d) all outstanding amounts due in respect of the Employee under Article 66(7) not yet paid to a Qualifying Scheme.”
43. The Claimant claims that she is entitled to penalty equal to her daily wage for each day the Defendant is in arrears of its payment obligations. Therefore, the Claimant submits that her daily wage AED 507.69 per day from 15 July 2023 to the notice in lieu payment on 12 September 2023 which is 59 days.
44. Article 19(4) of the DIFC Employment Law provides that “A penalty pursuant to Article 19(2) will be waived by a Court in respect of any period during which: (a) a dispute is pending in the Court regarding any amount due to the Employee under Article 19(1); …”
45. The Claimant filed her Claim on 25 August 2023, therefore, she is entitled to penalties from 15 July 2023 to 25 August 2023, which is 41 days x AED 507.69= AED 20,815.29.
Interest
46. The Claimant also claims interest on Judgment in accordance with Practice Direction No. 4 of 2017.
Conclusion
47. The Claimant’s total entitlements amount to the sum of AED 40,783.81. However, The Claimant has only claimed the total sum of AED 23,632.26 in her claim form; therefore, the Claimant shall only be awarded what she has claimed.
48. The Defendant shall pay the Claimant the sum of AED 23,632.26 plus interest at the rate of 9% per annum from the date of this Judgment until the date of full payment.
49. The Defendant shall pay the Claimant the Court fees in the sum of AED 693.10.
