November 17, 2023 SCT - JUDGMENTS AND ORDERS
Claim No. SCT 347/2023
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
MUSTOHI
Claimant
and
MURIP
Defendant
| Hearing : | 1 November 2023 |
|---|---|
| Judgment : | 17 November 2023 |
JUDGMENT OF H.E JUSTICE NASSIR AL NASSER
UPON this Claim being filed on 11 September 2023 and amended on 1 November 2023 (the “Claim”)
AND UPON a Counterclaim being filed on 26 October 2023
AND UPON a hearing having been held before H.E Justice Nassir Al Nassir on 1 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 37,400.
2. The Claimant’s other claims shall be dismissed.
3. The Defendant’s Counterclaim shall be dismissed.
4. The Defendant shall pay the Claimant the Court fees in the sum of AED 748.
Issued by:
Hayley Norton
SCT Judge and Assistant Registrar
Date of issue: 17 November 2023
At: 11am
THE REASONS
The Parties
1. The Claimant is Mustohi (the “Claimant”), an individual filing a claim against the Defendant regarding his employment at the Defendant company.
2. The Defendant is Murip (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 12 September 2022 (the “Agreement”). The Claimant commenced work with the Defendant on 18 February 2021.
4. On 11 September 2023, the Claimant filed a claim with the DIFC Courts’ Small Claims Tribunal (the “SCT”) seeking various payments related to his employment in the sum of AED 57,750.
5. On 13 September 2023, the Defendant filed an acknowledgment of service with the intention to defend all of the claim.
6. On 27 September 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 1 November 2023 at which the Claimant and the Defendant’s representative attended (the “Hearing”).
The Claim
8. The Claimant submits that he commenced working on 18 February 2021, however, the Claimant was provided the Employment Agreement dated 12 September 2022.
9. The Claimant submits that 26 July 2023 was the last day of his employment.
10. At the Hearing, the Claimant confirmed that he is seeking the total sum of AED 52,000 which consists of the following relief:
(a) 7 months’ salary in the sum of AED 31,500;
(b) Payment in lieu of 36 days of accrued and untaken public holidays for the years 2021, 2022 and 2023 in the sum of AED 5,400;
(c) Payment for 45 days of accrued but untaken annual leave in the sum of AED 5,500 of which AED 1,000 relates to payment of an air ticket; and
(d) Payment for daily overtime of 576 hours in the sum of AED 9,600.
Defence and Counterclaim
11. The Defendant submits that the Claimant was assigned as a manager to the restaurant. The Defendant alleges that the Claimant was not reporting to work at all and that his basic duties as a manager were ignored by him therefore the company suffered a loss of sales.
12. The Defendant submits that the Claimant always collected his salary and recently he was demanding for more payment and asking for more advance payments.
13. The Defendant submitted witness statements from employees of the Defendant stating that the Claimant has received his salaries.
14. The Defendant submits that the Claimant received payment for all of his salaries and vacation leave. The Defendant submits that the Claimant is not entitled to any further payments with regards to his employment.
15. The Defendant filed a Counterclaim, claiming that although its accounts suggest that it has achieved the sum of AED 507,610.34 of sales. Upon reviewing its accounts, it has found that the sum of AED 55,000 is missing, therefore, the Defendant filed a claim against the Claimant to pay the missing amount.
16. The Defendant submits that the Claimant was a manager/supervisor and therefore he is responsible for the missing amount.
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.
The Claimant’s claims
Salaries
18. The Claimant claims salaries for 7 months in the sum of AED 31,500. However, the Claimant has failed to indicate the specific months for which he is claiming. At the Hearing, the Claimant asserted that he is entitled for payment for more than 7 months, but he reviewed and calculated what he was paid in advance, and accordingly, the Claimant submits that the remaining balance amounts to 7 months salaries in the sum of AED 31,500.
19. The Defendant submitted excel sheet setting out salaries, however, failed to provide that the Claimant received his salary through a bank account transfer or by way of cash by signing a payment receipt.
20. Article 15(1) of the DIFC Employment Law provides the following:
“(1) an Employee is entitled to receive as soon as practicable a written itemised pay statement in respect of each pay period that includes:
(a) the amount of remuneration payable; and
(b) the amount of any deduction from that amount and the purpose for which it is made.”
21. It is the Defendant’s responsibility to keep a record of the Claimant’s remunerations in accordance with Article 16(1)(c) of the DIFC Employment Law which provides the following:
“(1) an Employer shall keep records of the following information:
(c) The Employee’s Remuneration (gross and net, where applicable), and applicable pay period;…”
22. In the absence of such record, I find that the Defendant is obliged to pay the Claimant his salaries of 7 months in the sum of AED 31,500. The Claimant calculated his salaries based on a monthly salary of AED 4,500, although his monthly salary is AED 5,500.
Annual Leave and Public Holiday
23. The Claimant claims payment in lieu of 45 days’ vacation leave in the sum of AED 5,500 including payment of an air ticket, and payment of 36 days of public holiday in the sum of AED 5,400. However, the Defendant submits that the Claimant is not entitled to any compensation.
24. Article 16(1) (f) and (g) of the DIFC Employment Law provides the following:
“(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
(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 submits that the Claimant has received payment for his vacation leave in the sum of AED 4,000 as per a voucher dated 15 August 2023 and a voucher dated 25 August 2023 in the sum of AED 1,000.
26. In response, the Claimant, submits that he has not signed the vouchers.
27. I find that the vouchers were signed by the Claimant, therefore, I find that sufficient evidence has been provided to the Court to suggest that the Claimant was paid his vacation leave to the amount of AED 5,000. The Claimant claimed the sum of AED 5,000;. Therefore, the remaining balance is AED 500 which shall be paid to the Claimant by the Defendant.
28. 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.”
29. Payment in regards to Public Holidays shall be calculated as follows:
AED 5,500 x 12 months = AED 66,000/260 working days = AED 253.84 x 36 days = AED 9,138.24.
However, the Claimant only claimed the sum of AED 5,400 and therefore he shall be awarded the sum as sought within his Claim Form.
Overtime
30. The Claimant claims payment of 576 hours of overtime in the sum of AED 9,600.
31. The Claimant failed to provide evidence to show that the parties have agreed upon payment for overtime. In addition, although the Claimant claims that he worked for 576 hours of overtime, he failed to provide any evidence to support this assertion.
32. Therefore, I dismiss the Claimant’s claim for overtime.
Counterclaim
33. With regards to the Defendant’s Counterclaim, I find that the Defendant failed to provide sufficient evidence to establish that the Claimant was responsible for the missing amount.
34. Therefore, I dismiss the Defendant’s Counterclaim.
Conclusion
35. The Defendant shall pay the Claimant the sum of AED 37,400.
36. The Claimant’s other claims shall be dismissed.
37. The Defendant’s Counterclaim shall be dismissed.
38. The Defendant shall pay the Claimant the Court fees in the sum of AED 748.
