May 28, 2024 SCT - JUDGMENTS AND ORDERS
Claim No: SCT 044/2024
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
BEFORE H.E. JUSTICE MAHA AL MHEIRI
BETWEEN
NOOR
Claimant
and
NEIL
Defendant
| Hearing : | 25 April 2024 |
|---|---|
| Judgment : | 28 May 2024 |
JUDGMENT OF H.E. JUSTICE MAHA AL MHEIRI
UPON the Claimant’s claim filed on 29 January 2024 and amended on 19 March 2024
AND UPON the Defendant’s counterclaim filed on 27 February 2024
AND UPON a hearing having been held before H.E. Justice Maha Al Mheiri on 25 April 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 Claimant shall pay the Defendant the amount of AED 88.33.
2. The Defendant shall within 7 days from the date of this Order:
(a) cancel of Claimant’s employment visa;
(b) withdraw the absconding case filed against the Claimant;
(c) pay all costs associated with the absconding case file and
(d) return the Claimant’s passport.
3. Each party shall bear their own costs.
Issued by:
Hayley Norton
SCT Judge and Assistant Registrar
Date of issue: 28 May 2024
At: 11am
THE REASONS
The Parties
1. The Claimant is Noor (the “Claimant”), an individual filing a claim against the Defendant regarding her employment at the Defendant company.
2. The Defendant is Neil (the “Defendant”), a company registered in the DIFC, Dubai, UAE.
Background and the Preceding History
3. The underlying dispute arises out of the employment of the Claimant by the Defendant pursuant to an Offer Letter dated 30 August 2023 (the “Employment Contract”). Pursuant to the Employment Contract, the Claimant was employed in the position of Hair Expansionist with a monthly salary of AED 2,000.
4. The Claimant submits that she was hired to perform hair extensions on the Defendant’s clients. The Claimant submits that she was given hair extension appointments from time to time but not on a regular basis, and her duties mainly consisted of cleaning and tidying the salon.
5. On 21 November 2023, the Claimant tendered her resignation letter. Following her resignation, she received an email from the Defendant informing her that the management had decided to transfer her to their onshore Dubai branch location. The email, 14 November 2023, stated that starting from 15 November 2023, the Claimant was expected to work at the Defendant’s onshore Dubai branch.
6. In reply to the Defendant, the Claimant submits that she was already working at the onshore Dubai branch since 10 November 2023, and that she received a WhatsApp message instructing her to stay at home until 17 November 2023. The Claimant sought clarification regarding the terms of her notice period.
7. On 16 November 2023, the Defendant acknowledged the Claimant’s resignation and highlighted that, as per the probation clause in the offer letter, the Claimant is liable to compensate the Defendant for training and induction costs incurred, these costs are AED 9,000. The Defendant then decided that she will only claim the price of the hair used in the training to train the Claimant for eyelash extensions.
8. On 17 November 2023, the Claimant was called to sign several documents and complete formalities, being final settlement and clarifications in relation to the deductions for the training. The Claimant disputed these deductions and refused to sign the documents.
9. On 29 January 2024, the Claimant filed a claim with the DIFC Courts’ Small Claims Tribunal (the “SCT”) seeking the following reliefs in the amount of AED 9,356.22:
(a) Payment of wages from 3 to 14 November 2023 in the amount of AED 1,107.72;
(b) Payment in lieu of 1 month notice in the amount of AED 2,000;
(c) Payment in lieu of 12 days’ annual leave in the amount of AED 525.50;
(d) Cancellation of visa, withdrawal of absconding claim and return of her passport; and
(e) Imposition of a daily penalty under Article 19(1) of the Employment Law from 28 November 2023 to the 29 January 2024, totaling AED 5,723.
10. On 27 February 2024, the Defendant filed its defence with counterclaim (the “Counterclaim”) and is counterclaiming the following from the Claimant for the amount of AED 5,566.67, being:
(a) The sum of AED 4,500 as the costs of the equipment used for the Claimant’s training and the costs incurred due to the Claimant failing to attend work and serve the remainder of the notice period; and
(b) The Claimant to repay the amount AED 1,066.67 for the advance given to her in September 2023
11. On 25 March 2024, the parties attended a Consultation before SCT Judge Maitha AlShehhi, however, they were unable to reach a settlement.
12. In line with the rules and procedures of the SCT, this matter was referred to me for determination, pursuant to a hearing held on 25 April 2024 (the “Hearing”).
Discussion
13. This dispute is governed by the Employment Law Amendment Law DIFC Law No. 4 of 2021 (the “DIFC Employment Law”) in conjunction with the Employment Contract.
14. On 24 April 2024, the Defendant filed their reply to the Claimant’s submission and added new claims before the Hearing. The Defendant requested the amount of AED 24,236.67 for various claims. This was not set out in the Counterclaim filed on 27 February 2024, and therefore I shall not address these additional claims within my findings below.
15. I shall set out below each of the Claimant’s claims and the Defendant’s Counterclaim and the parties’ reply to each Claim, and accordingly, the Court’s reasoning and finding.
Commencement date
16. After the review of the parties’ submissions, and the translation of the WhatsApp conversation between the parties, the Court is satisfied that the Claimant’s employment commencement date started with the signing of her Employment Contract, being on 31 August 2023, as stated in the Employment Contract:
“Commencement Date:
Your employment will commence on the day you sign the contract.”
17. As such, the Defendant’s payment of the amount of AED 2,000 on 6 September 2023 is not considered as payment in lieu of the Claimant’s salary for the month of August. It is considered a loan that the Claimant took from the Defendant which is standard practice in the salon industry. The following payments were made to the Claimant.
(a) On 6 September 2023 advance payment was transferred in the amount of AED 2,000.
(b) On 5 October 2023 salary payment for the month of September in the amount of AED 2,000.
(c) On 4 November 2023 salary payment for the month of October in the amount of AED 2,000.
Pending employment entitlements
Payment of pending salary for 14 days of November 2023
18. The Claimant submits that she is entitled to be paid for her pending salary for the days she worked in November until her last working day being 14 November 2023. The Defendant does not oppose this claim but states that the advance paid to the Claimant in September should be offset against the amount due for the days she worked in November. As I established that the Claimant started working on 31 August 2023, this day was not paid to the Claimant, as such I shall calculate it with the Claimant’s wages in November.
AED 2,000/30 = AED 66.67 x 1 day (31 August 2023) = 66.67
AED 2,000/30 = AED 66.67 x 14 days in November = AED 933.38
19. Therefore, in accordance with the above, the Claimant’s entitlement in regards to pending wages is the amount of AED 1,000.05.
1 month Notice in lieu of her resignation
20. The Claimant submits that the Defendant failed to pay her 1 month notice and that this action is a breach of the Employment Contract by failing to provide a notice of termination as defined in Article 62(2) of the DIFC Employment Law, whereby the Claimant must provide sufficient notice of termination being 30 days’ notice as per Articles 62(2).
21. In review of the parties’ submissions, the Claimant’s resignation email dated 14 November states the following:
“ NOOR
THIS IS TO INFORM THAT I WOULD LIKE TO RESIGN FROM THE POST OF
HAIRDRESSER FROM NEIL
IT WAS A GREAT OPPORTUNITY TO WORK WITH THE FIRM
IN THE PERIOD OF MY NOTICE ANY HELP REQUIRED WILL HELP FOR
FURTHER ASSISTANCE
KINDLY EXCEPT MY RESIGNATION
THANK YOU
NOOR”
22. The Claimant was willing to serve her notice period but the Defendant asked her to stop working on 17 November 2023. In accordance with Article 62(2)(a), the Claimant is entitled to payment for 7 days of notice period from 15 to 17 November 2023.
“62. Minimum notice periods
(1) An Employer or an Employee may terminate an Employee’s employment without cause in accordance with this Article.
(2) Subject to Articles 62(3), 62(4), 62(6) and 63, the written notice required to be given by an Employer or Employee to terminate the Employee’s employment shall not be less than:
(a) seven (7) days, if the period of continuous employment of the Employee is less than three (3) months, including any period of Secondment;…”
AED 2,000/30 = AED 66.67 x 7 day (from 15 to 21 November 2023) = 466.69.
23. Therefore, in accordance with the above, the Claimant’s is entitlement in regards to pending notice is in the amount of AED 466.69.
Payment of pending annual leave
24. The Claimant started her employment on 31 August 2023, being the day she signed the Employment Contract and her last working day is 21 November 2023. The Claimant is entitled to 21 days’ leave per year (1.75 days per month). After calculating the total number of days, the Claimant is entitled to 4.82 annual leave days.
(a) September and October = 2 x 1.75 = 3.5 days annual leave.
(b) 31 August 2023 (1 day) + 21 days in November = 0.06 x 22 days= 1.32 days’ annual leave.
25. The Claimant is entitled to 4.82 days’ annual leave in 2023 in the amount of AED 444.93 (AED 2,000 x 12 months/260 = AED 92.31 per day x 4.82 days).
26. As such, I find that the Claimant shall be paid the amount of AED 444.93 for her pending annual leave.
Article 19 penalty in accordance with the DIFC Employment Law
27. The Claimant seeks the accrual of a daily penalty in the amount of her daily wage pursuant to the Defendant’s failure to pay her employment entitlements within 14 days of her last working day. The Claimant submits that she should be entitled to this penalty from 28 November 2023 being 14 days from 14 November 2023 to 29 January 2024, in the amount AED 5,723.
28. In light of my findings above that the Claimant is entitled to the amount of AED 1,911.67, this amount is to be offset from the advance payment paid to the Claimant on 6 September 2023 in the amount of AED 2,000, and as such the remaining amount owing to the Defendant is in the amount of AED 88.33.
29. As such there is no amount pending to be paid to the Claimant, therefore the Claimant’s claim for Article 19 penalties is dismissed.
Cancelation of visa
30. I order that the Defendant shall cancel the Claimant’s visa and withdraw the absconding case filed against her and bear the associated costs of the absconding case, and return the Claimant’s passport.
31. The Claimant failed to meet the burden of proof to demonstrate the damages that she faced from this action as such her claim for damages shall be dismissed.
Counterclaim
Repayment of advance in the amount of AED 2,000
32. The Defendant submits that an amount of AED 2,000 was paid as an advance on 6 September 2023. Following the deductions of the days she worked in November; the Defendant submits that the remainder of the advance should be paid back to the Defendant.
33. For the reasoning set out at paragraph 28 above, the Claimant shall pay the Defendant the amount of AED 88.33.
The sum of AED 4,500 the costs of the equipment used in the Claimant’s training
34. In support of this claim, the Defendant submitted CVs of their employees that conducted the training, in addition to testimonies and WhatsApp conversations to confirm the training timings. The Defendant also submitted 2 invoices dated 17 February 2021 and 14 February 2022 to show how the cost of natural hair extensions.
35. In reply, the Claimant argues that the Defendant failed to show that the training was specific, extraordinary, or beyond the general skill development that employees might expect to receive as part of their normal professional development within the company supported by a certification. The Claimant submits that the Defendant needs to provide evidence of the actual costs incurred for the training. This includes direct costs such as fees for courses or seminars, materials, and any other expenses directly related to the provision of the training. The costs should be reasonable and directly attributable to the training provided. It is the Claimant’s position that, no such evidence has been provided.
36. The Claimant submits that the Defendant's timeline and descriptions of the training sessions, of sending the Claimant to different branches for training and inquiries via WhatsApp about the days training completion, lack the depth necessary to demonstrate a comprehensive training program. Furthermore, the mention of a memo sent due to lateness does not contribute to proving the effectiveness or substantive nature of the purported training.
37. The Court finds that the Defendant did not meet the burden of proof to show the precise number of eyelash hair extensions and the glue used and the costs associated. The Defendant also failed to provide evidence that it was a structured training programme that was provided. The Court does agree with the Claimant’s points with regards to training costs. Accordingly, I shall dismiss the Claimant’s Claim for the amount of AED 4,500.
Conclusion
38. In light of the aforementioned, I find that the Defendant shall pay the Claimant the sum of AED 88.33.
39. Each party shall bear their own costs.
