March 28, 2024 SCT - JUDGMENTS AND ORDERS
Claim No: SCT 509/2023
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
NABA
Claimant/Respondent
and
NILES
Defendant/Applicant
ORDER WITH REASONS OF JUSTICE MICHAEL BLACK KC
UPON reviewing the Judgment of H.E. Justice Nasser Al Nasser (the “Judge”) dated 15 March 2024 (the “Judgment”)
AND UPON reviewing the Defendant’s Appeal Notice dated 25 March 2024 seeking permission to appeal the Judgment (the “Application”)
AND UPON considering the documents and submissions filed and recorded on the case file
IT IS HEREBY ORDERED THAT:
1. The Application is refused.
2. It is directed that the Defendant may not request this decision refusing permission to appeal be reconsidered at a hearing.
3. Each party shall bear their own costs of the Application.
Issued by:
Delvin Sumo
SCT Judge and Assistant Registrar
Date of Issue: 28 March 2024
At: 8am
SCHEDULE OF REASONS
1. The Claimant, Naba, brought proceedings against the Defendant, Niles arising out of his employment by the Defendant pursuant to an Offer Letter dated 16 January 2020.
2. On 21 December 2023, the Claimant filed a claim with the DIFC Courts’ Small Claims Tribunal. The Defendant failed to acknowledge the claim. On 30 January 2024, a consultation was held before SCT Judge Maitha AlShehhi, at which the Claimant and the Defendant’s representative attended, but the parties failed to settle the claim amicably. The matter was therefore referred to the Judge who held a hearing on 7 March 2024 (“the Hearing”). The Claimant and the Defendant’s representative attended.
3. The Claimant made the following claims:
(1) Pending salaries of two months in 2020 in the sum of AED 20,000;
(2) Salary of 2021 and 2022 in the sum of AED 27,650 submitting that during this period the Defendant only paid AED 7,500 as monthly salary;
(3) Pending salary for the year 2023 in the sum of AED 120,000;
(4) One month notice in the sum of AED 10,000;
(5) End of Service Gratuity in the sum of AED 20,793;
(6) Payment in lieu of annual leave from 2019 to 2022 in the sum of AED 30,000;
(7) 56 days of accrued but untaken public holiday in the sum of AED 18,666; and
(8) Flight tickets from 2021 to 2023 in the sum of AED 5,000.
4. The Judge held in the Judgment the following:
(1) The Defendant submitted that the Claimant was never an official employee of the Defendant;
(2) The Claimant commenced work from 16 January 2020;
(3) There was no evidence that the Claimant was either terminated or that he resigned, therefore, the date of termination was the date the Claimant filed this claim which is 21 December 2023;
(4) With regard to the claims at paragraphs 3(1), (2) and (3) above, the Defendant failed to provide any written submissions or supporting evidence. Accordingly, he found that the Claimant is entitled to his salaries in the total sum of AED 167,650;
(5) With regard to the claims at paragraphs 3(6) and (7) above, the Defendant failed to provide any evidence to demonstrate that the Claimant has taken his annual leave and public holidays. However, the Claimant was claiming unused vacation leave which had expired in accordance with Article 27(3) of the DIFC Employment Law. Consequently, the Claimant was only entitled to 5 days from the year 2022 as this was carried forward to the year 2023. As the Claimant failed to utilise any of his leave for the year 2023, he was entitled to 5 days wages in lieu, namely AED 2,307.65. In relation to public holidays, the Defendant failed to provide any records of the days taken and the daily wage paid by the employer. The Judge therefore held that the Claimant is entitled to the sum of AED 18,666 due to the Defendant’s failure to provide evidence that the Claimant was paid for his public holidays;
(6) With regard to the claim at paragraph 3(5) above, the Claimant’s the end of service gratuity calculated in accordance with Article 66 of the DIFC Employment Law was AED 19,235.10;
(7) With regard to the claims at paragraphs 3(4) and (8) above, the Claimant’s claims were dismissed.
5. On 25 March 2024, the Defendant submitted an Appeal Notice seeking permission to appeal. The grounds for the proposed appeal were as follows (verbatim):
“THIS OREDR [sic] IS ISSUED WITH AMOUNT OF AED 207,872 ALTHOUGH THE CLAIMANT DIDN'T WORK WITH THE RESTAURANT FOR A WHOLE ONE YEAR WHICH HE WAS NOT REPORTING TO WORK AND IT WAS CALCULATED IN HIS ORDER, IN ADDITION THAT THE CLAIMANT NEITHER RESIGN NOR TERMINATED AND AS PER THE ATTACHED PAYMENT VOUCHER, HIS BALANCE TILL DEC 2022 WAS AED 27650, WE ARE REQUESTING FOR AN APPEAL HEARING TO DEFEND OURSELVES IN THIS CASE”
6. The attached payment voucher appears to be dated 16 January 2023 and signed by the Claimant. It contained the following:
“Cash Payment on 5 January 2023 AED 1000/- against salary payment remaining balance till December 2022 is AED 27650/- only”
7. It is unclear what this document is said to show. No explanation is provided by the Defendant of the document nor is any explanation provided as to why the Defendant did not produce the document at the consultation or at the Hearing before the Judge, who recorded in his Judgment that the Defendant failed to produce any evidence or submissions. He also recorded that the Defendant was denying that the Claimant was its employee. The payment voucher would appear to be inconsistent with this submission. There must, at least, be serious question marks over the provenance of this document.
8. By Rule53.94 of the Rules of the DIFC Courts (the “RDC”), applications for permission to appeal may be considered by the Court of First Instance without a hearing. I consider that a hearing is unnecessary in the present application.
9. By RDC 53.91 permission to appeal may be given only where (1) the Court considers that the appeal would have a real prospect of success; or (2) there is some other compelling reason why the appeal should be heard.
10. I do not consider that the proposed appeal enjoys a real (or any) prospect of success. The Judge heard the parties and there is no basis for any suggestion that he reached a decision that was not open on the evidence before him, nor indeed is any such suggestion expressly made. I do not consider that there is some other compelling reason why the appeal should be heard.
11. By RDC 53.99 where the Court of First Instance refuses permission to appeal without a hearing, it may, if it considers that the application is totally without merit, make an order that the person seeking permission may not request the decision to be reconsidered at a hearing. I do consider that the application is totally without merit and therefore direct that the Defendant may not request this decision refusing permission to appeal to be reconsidered at a hearing.
