January 24, 2023 SCT - JUDGMENTS AND ORDERS
Claim No. SCT 438/2023
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
NEPHI
Claimant
and
NESSIM
Defendant
| Hearing : | 16 January 2024 |
|---|---|
| Judgment : | 24 January 2024 |
JUDGMENT OF H.E. JUSTICE NASSIR AL NASSER
UPON this Claim being filed on 3 November 2023 (and amended on 13 November 2023, and re-amended on 15 January 2024)
AND UPON a hearing having been held before H.E Justice Nassir Al Nassir on 16 January 2024, 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 9,528.60.
2. The Defendant shall return to the Claimant his personal belongings.
3. The Defendant shall cancel the Claimant’s employment visa.
4. The Defendant shall pay the Claimant the Court filing fee in the sum of AED 367.25.
Issued by:
Hayley Norton
SCT Judge and Assistant Registrar
Date of issue: 24 January 2023
At: 8am
THE REASONS
The Parties
1. The Claimant is Nephi (the “Claimant”), an individual filing a claim against the Defendant regarding his employment at the Defendant company.
2. The Defendant is Nessim (the “Defendant”), a company registered and located in the DIFC, Dubai, UAE.
Background and the Preceding History
3. The underlying dispute arises over the employment of the Claimant by the Defendant pursuant to an employment contract dated 31 January 2023 (the “Agreement”). The Claimant submits that he commenced employment with the Defendant on 2 January 2023.
4. On 3 November 2023, the Claimant filed a claim with the DIFC Courts’ Small Claims Tribunal (the “SCT”) seeking the payment from the Defendant in the sum of AED 5,536.
5. On 8 November 2023, the Defendant filed an Acknowledgement of Service with the intention to contest the jurisdiction of the DIFC Courts.
6. On 13 November 2023, the Claimant amended his claim and uplifted the claim value to the sum of AED 25,000.
7. On 23 November 2023, a jurisdiction hearing was held before SCT Judge Hayley Norton and on 27 November 2023, the Registry issued the Judge’s Order determining that the DIFC Courts has the jurisdiction to hear and determine the claim.
8. On 18 December 2023, a consultation was held before SCT Judge Hayley Norton, however the parties failed to reach an amicable solution.
9. On 15 January 2024, the Claimant re-amended his claim to include a request for the cancellation of his employment visa along with monetary relief in the sum of AED 25,000.
10. In line with the rules and procedures of the SCT, this matter was referred to me for determination, pursuant to a hearing held on 16 January 2024 (the “Hearing”). The Claimant and the Defendant’s representative attended.
The Claim
11. The Claimant submits that he started working on 2 January 2023, however, he signed the Agreement on 31 January 2023. Pursuant to the Agreement, the Claimant’s monthly salary was set out to be AED 3,800.
12. The Claimant submits that on 1 November 2023, the Defendant terminated his employment.
13. The Claimant filed a claim claiming the following relief:
(a) Salary dues and commission for September and October 2023 in the sum of AED 5,272;
(b) Payment in lieu of 22 days of accrued but untaken annual leave in the sum of AED 3,333;
(c) Payment in lieu of 2 public holidays accrued but untaken in the sum of AED 266;
(d) Payment of overtime in the sum of AED 4,700;
(e) Compensation for unfair dismissal in the sum of AED 12,000;
(f) The Defendant to return the Claimant’s tools or pay the sum of AED 2,000; and
(g) Visa cancellation.
The Defence
14. The Defendant submits that the Claimant is entitled to the salary dues and commission for September and October 2023 in the sum of AED 5,272, in addition to payment for the 2 public holidays in the sum of AED 266.
15. In relation to the 22 days of accrued but untaken annual leave, the Defendant submits that the Claimant is only entitled to the annual leave after completing 12 months of continuous employment.
16. In relation to the overtime, the Defendant submits that the Claimant is not entitled to payment for overtime. The Defendant submits that due to the nature of the business, weekends, holidays and overtime work are inevitable and the Claimant accepted this obligation as part of his employment terms.
17. In relation to the unfair dismissal, the Defendant submits that the Claimant was properly terminated by providing him one-month notice starting from 1 November 2023. However, the Claimant refused to serve his notice period.
18. In relation to the Claimant’s personal belongings, the Defendant submits that the Claimant may collect his belongings at any time.
Discussion
19. 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.
20. The Defendant admits that the Claimant is entitled to salaries and commission for September and October 2023 in the sum of AED 5,272. In addition, the Defendant agrees that the Claimant is entitled to the sum of AED 266 for accrued but untaken public holidays.
21. In relation to the Claimant’s other claims, I shall discuss below.
Annual Leave
22. The Claimant submits that he is entitled to payment for 22 days of accrued but untaken annual leave in the sum of AED 3,333.
23. The Defendant submits that the Claimant will only be entitled to annual leave upon completion of 12 months of continuous employment.
24. Clause 12 of the Agreement provides the following:
“you are entitled to 30 days of annual leave per annum to be taken at a mutually convenient time and subject to our prior approval. You can only take after completing 12 months of continuous employment”.
25. Article 30(2) of the DIFC Employment Law provides the following:
“Vacation leave during the first year of employment
(2) vacation leave accrues during the Employee’s first year of employment on a monthly basis at the rate of one-twelfth (1/12) of the Employee’s annual entitlement to vacation leave.”
26. Having reviewed the above, I find that Clause 12 of the Agreement does not mean that the Claimant is not entitled to annual leave until he completes 12 months of continuous employment. I interpret the Clause to mean that the Claimant will be entitled to his leave, however, he will not be eligible to utilise the leave until he completes 12 months of continuous employment. Therefore, the Claimant is entitled to 30 days/12 months = 2.5 days per month.
27. The Claimant worked from 2 January 2023 to 1 November 2023 which is 10 months x 2.5 days per month = 25 days per year.
28. Article 28 of the DIFC Employment Law provides the following:
“28. Compensation in lieu of Vacation Leave
(1) Where an Employee’s employment is terminated, the Employer shall pay the Employee an amount in lieu of Vacation Leave accrued but not taken up to and including the Termination Date calculated in accordance with Article 28(3).
(2) …
(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.”
29. The Claimant’s daily wage shall be calculated as follows: AED 3,800 x 12/260 days = AED 175.38 x 25 days of accrued but not taken vacation leave = AED 4,384.50. However, upon review of the re-amended Claim Form, I find that the Claimant has only sought to claim payment in lieu of 22 days of accrued and untaken vacation leave in the sum of AED 3,333. Therefore, I shall award him the sum no greater than he has claimed.
Overtime
30. The Claimant submits that, on a daily basis, he worked an additional 1 to 1 and half hours over his contractually agreed hours as he should only be obliged to work for 9 hours per day.
31. Clause 6 of the Agreement provides the following:
“Your ordinary hours of work will be 54 hours per week across six (6) days. You may be required to change shifts at short notice. On occasions, you may be required to work beyond the normal hours to meet our business commitments. Overtime pay will be given accordingly as per DIFC Labour Law or with mutual agreement will compensate with hours off in the salon. Due to the nature of the business, weekends, holidays work is inevitable, and you agree to this obligation as part of your employment.”
32. The Claimant provided a schedule of working hours for the following weeks:
- 17 April 2023 to 23 April 2023, the Claimant worked for 60 hours.
- 31 July 2023 to 6 August 2023, the Claimant worked for 60 hours.
- 8 May 2023 to 14 May 2023, the Claimant worked for 60 hours.
- 11 September 2023 to 17 September 2023, the Claimant worked for 60 hours.
- 2 October 2023 to 8 October 2023, the Claimant worked for 60 hours.
33. Pursuant to the above, the Claimant worked an extra 30 hours on the above-mentioned dates. As the DIFC Employment Law is silent with regards to payment of overtime and the Defendant failed to provide evidence that it had compensated the Claimant, I shall award the Claimant overtime pursuant to the Claimant’s hourly rate as defined in the DIFC Employment Law, the calculation shall be as following:
AED 175.38/ 8 hours = AED 21.92 (the Claimant’s hourly rate) x 30 hours = AED 657.60.
Personal belongings
34. The Defendant agreed to return the Claimant’s personal belongings which consists of (i) a Wahl machine; and (ii) scissors.
Compensation for unfair dismissal
35. The Claimant claimed the sum of AED 12,000 in relation to unfair dismissal.
36. The Defendant submits that it terminated the Claimant’s employment by providing him with one-month notice in accordance with the DIFC Employment Law. The Defendant provided the termination letter which confirmed that the Claimant was required to serve notice from 1 November 2023 for one month. However, the Claimant failed to serve the notice period.
37. The DIFC Employment Law does not remedy arbitrary/unfair dismissal. There are multiple precedents issued by the DIFC Courts that have held that there is no principle of arbitrary/unfair dismissal in the DIFC, including the Judgment of Justice Tan Sri Dato’ Seri Siti Norma Yaakob in Rasmala Investments Ltd v Rana Banal & Others [2009] DIFC CFI 006.
38. Having reviewed the aforementioned authorities and in accordance with the findings set out therein, I am of the view that there is no principle of arbitrary dismissal in the DIFC. I, therefore, dismiss the Claimant’s claim for compensation accordingly.
Visa Cancellation
39. The employment relationship has ended, therefore, the Defendant shall cancel the Claimant’s employment visa.
Conclusion
40. In light of the aforementioned, I find that the Defendant shall pay the Claimant the total sum of AED 9,528.60.
41. The Defendant shall return to the Claimant his personal belongings.
42. The Defendant shall cancel the Claimant’s employment visa.
43. The Defendant shall pay the Claimant the Court fee in the sum of AED 367.25.
