December 27, 2023 SCT - JUDGMENTS AND ORDERS
Claim No. SCT 403/2023
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
NIRAN
Claimant/Defendant in Counterclaim
and
NYSA
Defendant/Claimant in Counterclaim
| Hearing : | 12 December 2023 |
|---|---|
| Judgment : | 27 December 2023 |
JUDGMENT OF H.E JUSTICE NASSIR AL NASSER
UPON this Claim being filed on 12 October 2023 and amended on 25 October 2023 (the “Claim”)
AND UPON a hearing having been held before H.E Justice Nassir Al Nassir on 12 December 2023, with the Claimant’s representative and the Defendant in attendance
AND UPON reviewing the documents and evidence filed and recorded on the Court file
IT IS HEREBY ORDERED THAT:
1. The Claimant shall proceed to cancel the Defendant’s visa.
2. The Defendant’s Counterclaim shall be dismissed.
3. The Defendant shall pay the Claimant the Court fees of the claim in the sum of AED 367.50
4. There shall be no order as to costs in relation to the Counterclaim.
Issued by:
Hayley Norton
SCT Judge and Assistant Registrar
Date of issue: 27 December 2023
At: 3pm
THE REASONS
The Parties
1. The Claimant is Niran (the “Claimant”), a company registered and located in the DIFC, Dubai, the UAE.
2. The Defendant is Nysa (the “Defendant”), an individual who was employed by the Claimant.
Background and the Preceding History
3. The underlying dispute arises over the employment of the Defendant by the Claimant pursuant to an Employment Agreement dated 14 May 2018 (the “Agreement”).
4. On 12 October 2023, the Claimant filed a claim with the DIFC Courts’ Small Claims Tribunal (the “SCT”) seeking a court order to cancel the Defendant’s employment visa.
5. On 26 October 2023, the Defendant filed her defence and counterclaim seeking the total sum of AED 488,999 (the “Counterclaim”).
6. On 1 November 2023, the Claimant filed its defence to the Counterclaim.
7. On 23 November 2023, a Consultation was held before SCT Judge Delvin Sumo, however the parties were unable to reach a settlement.
8. In line with the rules and procedures of the SCT, this matter was referred to me for determination, pursuant to a hearing held on 12 December 2023 at which the Claimant’s representative and the Defendant attended (the “Hearing”).
The Claim
9. The Claimant submits that the Defendant commenced work with the Claimant on 14 May 2018. On 20 June 2022, the Defendant was terminated.
10. The Claimant filed a claim seeking a court order to cancel the Defendant’s visa due to the Defendant’s failure to cooperate with the cancellation process.
Defence and Counterclaim
11. It is the Defendant’s position that (i) both parties agree to cancel the visa; (ii) there be confirmation that this agreement will not affect the other counterclaims; and (iii) the Claimant shall provide the Defendant with a repatriation flight ticket.
12. The Defendant submits that the Claimant had previously agreed to issue a repatriation ticket via an email dated 29 September 2022.
13. The Defendant submits that pursuant to DIFC Employment Law No. 2 of 2019 (“Employment Law”) the Claimant, has an obligation to (i) keep accurate payroll records, (ii) make timely end of service payments; and (iii) provide accurate pay slips to employees within a reasonable timeframe.
14. The Defendant adds that the Claimant failed to keep accurate records of her salary payments resulting in her being forced to stay on a visa much longer than intended, as well as suffering significant hardship in having to be available to cancel the visa and repatriate for extended periods of time while she dealt with the Claimants continuous mistakes. In addition, the Defendant submits that the delays had a real measurable impact with regards to the preparation of her tax filing obligations as a citizen of the United States of America.
15. Therefore, the Defendant seeks compensation equivalent to AED 11,000 to include interest for late payments received on 15 March 2023 and 3 May 2023, which should have been paid by the deadline of 3 September 2022. The Defendant made its calculation considering that a DFSA regulated company is unable to maintain an internal Finance Officer function to be able to meet its regulatory requirements, is required to appoint an external Finance Officer and then considering the average quote of an external Finance Officer who is able to perform this function, or AED 11,000 per 10-15 hours of availability.
16. The Defendant also made claims in relation to discrimination, victimization and harassment in accordance with the DIFC Employment Law.
17. The Defendant submits that throughout her employment with the Claimant, she was subjected to sex-based discrimination, in numerous distinct forms and in breach of DIFC Employment Law, Article (1)(c):
“(1) An Employer must not discriminate against an Employee regarding employment or any term or condition of employment on the grounds of the Employee’s:
i. sex;…”
18. The Defendant also submits that she was frequently subject to both forms of harassment during her employment with the Claimant. The Defendant flagged these issues on numerous occasions and the Claimant should have reasonably been aware of these issues and taken reasonable steps to cease or prevent it.
19. The Defendant submits that Part 9 Section 60(1)(2) of the DIFC Employment Law, states:
“(1) An Employer must not victimise an Employee.
(2) For the purposes of this Part 9, an Employer victimises an Employee if it subjects the Employee to a detriment or dismisses him because the Employee does a protected act, or the Employer believes that the Employee has done, or may do, a protected act. Each of the following is a protected act:
(a) bringing proceedings under this Part 9;
(b) giving evidence or information in connection with proceedings under this Part 9;
(c) doing any other thing for the purposes of or in connection with this Part 9; and
(d) making an allegation (whether or not express) that the Employer or another person has contravened this Part 9.”
The Defendant was subject to victimization by the Claimant as defined under these laws, following making an allegation of discrimination in good faith.
20. The Defendant also adds that Article 43 of the Employment Law specifies the general duties of Employers as follows:
“(1) An Employer has a duty to ensure, as far as is reasonably practicable, the health, safety and welfare at work of all its Employees.
(2) An Employer shall provide and maintain a workplace that is free of discrimination and victimization and without risks to an Employee’s health and safety.” Neither part (1) nor (2) of Article 43 was maintained by the Claimant.“
21. The Defendant also adds that the Claimant is liable for any actions taken by its employees as per Article 54 of the Employment Law:
“(1) Subject to Article 54(2), an Employer is liable for any act, attempted act, or omission of an Employee done in the course of their employment with the Employer.
(2) An Employer will only be liable pursuant to the provisions of Article 54(1):
(a) in the case of a claim for loss, damages or compensation, if the act, attempted act, or omission to which such claim relates is sufficiently connected with the Employee's employment that it would be fair and just to hold the Employer vicariously liable; and
(b) in the case of discrimination or victimisation, if the Employer is unable to show it took such steps as were reasonably practicable to prevent the Employee from:
(i) carrying out that act, attempted act or omission; or
(ii) doing anything of that description.”
The Claimant’s failure to take any action to prevent the Defendant from being harassed and victimized despite multiple complaints by the Defendant, and subsequent admission that no action was taken meets the threshold of Article 54 and therefore the Claimant should be held vicariously liable for the actions of the Claimant’s employees against the Defendant.
22. The Defendant also adds that as a result of the sustained attacks by employees of the Claimant against her, on 10 June 2022 she was diagnosed with depression for the first time. This was despite the Defendant having absolutely no history of mental illness. This resulting condition has caused the Defendant pain and suffering and affected her future earnings while remaining mentally fragile.
23. The Defendant also adds that since the termination of her employment, she has been made aware by both internal employees and external counterparties of the Claimant, that at least four employees of the Claimant have been making derogatory and unfounded statements about the Defendant. The Defendant attests that this is equivalent to reputational damage and seeks compensation to be ordered by the court.
24. In the light of the above claims, the Defendant seeks damages in the sum of AED 488,999.
Finding
25. 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 Claim
26. The Claimant filed a claim to cancel the Defendant’s visa. The Defendant commenced work with the Claimant on 14 May 2018 and was terminated on 20 June 2022.
27. Since the employment relationship between the parties has ended, I find that the parties shall proceed to visa cancellation.
28. Therefore, the Defendant’s visa shall be cancelled.
Counterclaim
29. Before discussing the Counterclaim, the Courts shall have regard to Article 10 of the DIFC Employment Law which provides the following:
“subject to Article 20(2) and Article 61(2), a court shall not consider a claim under this Law unless it is presented to the Court either during an Employee’s employment with an Employer or not later than six (6) months after the relevant Employee’s termination date.”
30. The Defendant received her termination on 20 June 2022, with the notice period ending on 20 July 2022. The Defendant has filed her Counterclaim after the period of six (6) months as provided in Article 10 of the DIFC Employment Law.
31. Even if the Counterclaim is within the limitation period, the Defendant’s claims fall under Part 9 of the DIFC Employment Law and therefore ought to have been filed with the Court of First instance and not the Small Claims Tribunal, in accordance with Article 61 of the DIFC Employment Law, which defines the Courts as the Court of First Instance of the DIFC Courts.
32. Although the Defendant suggested that the limitation period shall start from the date of her receiving her last payment which is in May 2023. However, I find the Law to be clear as to when the limitation period applies, and it is related to the date of termination and not the date of last payments received.
33. Therefore, I shall not discuss the Counterclaim further as the Defendant filed her Counterclaim on 26 October 2023, which surpasses the six (6) months limitation period. Hence, I dismiss the Defendant’s Counterclaim.
Conclusion
34. In relation to the claim, the Claimant shall proceed to cancel the Defendant’s visa.
35. The Counterclaim shall be dismissed.
36. The Defendant shall pay the Claimant the Court fees of the claim in the sum of AED 367.50
37. In relation to the Counterclaim, there shall be no order as to costs.
