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Claim No: SCT 321/2023

IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

NUFUN

Claimant/Respondent

and

NOLAN

Defendant/Appellant

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ORDER WITH REASONS OF JUSTICE RENE LE MIERE

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UPON the Judgment of H.E. Justice Nassir Al Nasser dated 24 November 2023 (the “Judgment”)

AND UPON reviewing the Defendant’s Appeal Notice dated 11 December 2023 seeking permission to appeal the Judgment (the “Permission Application”)

IT IS HEREBY ORDERED THAT:

1. The Permission Application is refused.

Issued by:
Delvin Sumo
SCT Judge and Assistant Registrar
Date of Issue: 25 December 2023
At: 2pm

Summary

1. The Claimant/Respondent (the “Claimant”), who had been employed by the Defendant/Appellant (the “Defendant”), brought a claim in the Small Claims Tribunal against the Defendant for unpaid employment benefits.

2. On 24 November 2023, it was ordered that the Defendant pay the Claimant AED 23,632.26 plus interest (the “Judgment”).

3. By appeal notice dated 11 December 2023, the Defendant applied for permission to appeal against the judgement (the “Permission Application”).

4. For the reasons which follow the Permission Application will be dismissed.

The Parties

5. The Defendant is Sewing Hope for Nolan, a company registered and located in the DIFC. The Defendant was represented by its general manager, Mr NirubNirub said that the Defendant is the holding company for the Sewing Hope for Nolan charity, which was founded to give sustainable employment for widows and refugees following the Nust war.

6. The Claimant is Nufun, a citizen of Ukraine, who was employed by the Defendant as a marketing executive pursuant to an employment contract made on 20 January 2022 (the “Contract”).

The Claim

7. On 25 August 2023, the Claimant filed a claim with the DIFC Courts’ Small Claims Tribunal seeking the amount of AED 34,632.26 for unpaid salary for June 2023, DIFC Employment Workplace Savings plan (DEWS), penalties for nonpayment as of 23 August 2023, leave pay, and the amount of a return economy class air ticket from Dubai to home (Ukraine).

8. On 14 September 2023, after the Defendant had paid the Claimant her salary in the sum of AED 11,000 for June 2023, the Claimant amended the claimed amount reducing it to the sum of AED 23,632.26.

9. After a hearing before H.E. Justice Nassir Al Nasser on 9 November 2023, it was ordered on 24 November 2023 that the Defendant pay the Claimant the amount of AED 23,632.26 plus interest at the rate of 9% per annum from the date of the judgement until the date of full payment.

10. On 11 December 2023, the Defendant applied for permission to appeal against the judgement.

Rules concerning application for permission to appeal

11. To appeal a decision of the Small Claims Tribunal, an appellant must first obtain permission to appeal. This application is made to the CFI. Permission to appeal may be given only where the Court considers that the appeal would have a real prospect of success or there is some other compelling reason why the appeal should be heard¹.

12. The Court will allow an appeal where the decision was wrong, unjust because of a serious procedural or other irregularity in the proceedings, or wrong in relation to any other matter provided for or under any law².

The Judgment of the Tribunal

13. In his reasons, the learned Judge found as follows.

14. The Claimant commenced working on 20 January 2022. On 31 May 2023, NirubNiruband the Claimant verbally agreed that after her vacation at the end of June 2023 they would end the Contract on the grounds that the company will be closed.

15. By her amended claim, the Claimant claims the following.

Annual Leave

16. The Defendant failed to provide a record of the annual leave taken by the Claimant. In the absence of such records which are required to be kept by the Defendant pursuant to Article 16(1)(g) of the DIFC Employment Law, the Claimant’s entitlement is to be calculated in accordance with Articles 27(3) and 28(3) of the DIFC Employment Law and clause 6.1 of the Contract.

17. The Claimant’s leave entitlement is: 19.76 days x AED 507.69 = AED 10,031.95 for the period of 1 year, 5 months and 10 days.

DEWS

18. The Claimant was not registered with DEWS.

19. The Claimant’s entitlement calculated in accordance with Article 66 of the DIFC Employment Law is AED 6,669.52.

Air ticket

20. The Claimant claims the amount of an economy class air ticket from Dubai to her home country (Ukraine) in the sum of AED 3,267.05 in accordance with clause 5.2 of the Contract.

21. The Defendant submits that the Claimant was provided an air ticket to Georgia then Armenia on 17 May 2022. However, the Claimant submits that this trip was a business trip and not related to her entitlement in accordance with the Contract.

22. The Claimant submits that it was a business trip but during the business trip to Georgia where her family were, she visited them but then flew to Armenia.

23. The Defendant failed to provide evidence that it was not a business trip, and the tickets and the Claimant’s submissions suggest that it was a business trip.

24. Therefore, it was a business trip.

25. The Claimant is entitled to an air ticket to her home country in the sum of AED 3,267.05.

Penalties

26. Under Article 19 of the DIFC Employment Law the Claimant is entitled to penalties for late payment of salary from 15 July 2023 to 25 August 2023, which is 41 days x AED 507.69 = AED 20,815.29.

Interest

27. The Claimant also claims interest on Judgment in accordance with Practice Direction No.4 of 2017.

Conclusion

28. The Claimant’s total entitlements amount to the sum of AED 40,783.81. However, the Claimant has only claimed the total sum of AED 23,632.26 in her claim form; therefore, the Claimant shall only be awarded what she has claimed.

29. The Defendant shall pay the Claimant the amount of AED 23,632.26 plus interest at the rate of 9% per annum from the date of this Judgment until the date of full payment.

30. The Defendant shall pay the Claimant the Court fees in the sum of AED 693.10.

Grounds of appeal

31. There are two grounds of appeal in the appeal notice.

32. The first ground is that the Claimant acknowledged that she was owed only one months’ salary.

33. The second ground is that the Defendant has only three staff including those working for another company, does not have an HR department but works on trust and transparency and has no leave application forms.

34. The Respondent submitted that the Appellant's appeal rests on two assertions.

35. The first is that the Claimant implicitly waived her right to any additional financial claims beyond the one month's pending salary in accordance with the email of 9 August 2023.

36. The assertion cannot succeed as a matter of fact or law.

37. In her 9 August 2023 email, the Respondent responds to an earlier email and discusses various issues, including her contributions to the Sewing Hope for Armenia project, the financial predicaments of the project, and specific financial matters such as phone bills and salary payments. She specifically requests closure of all financial issues related to her and another employee, Nukh, by 18 August 2023 and mentions outstanding amounts owed, including her own back wages and Ms Nukh’s salary for April and May 2023. The email did not state or imply a full and final settlement or a waiver.

38. Further, Article 11(2)(b) of the DIFC Employment law in effect provides that an agreement to waive requirements of the Employment Law are void unless certain requirements are followed. They were not followed in this case.

39. The Judge did not find, and the evidence did not compel him to find, that the Claimant relinquished or waved any additional financial claims.

40. Mr Nirub did not dispute the Judge’s findings in relation to DEWS or the Claimant’s entitlement in respect of DEWS. Mr Nirub acknowledged that the Defendant did not pay the Claimant’s DEWS entitlement because he was not aware of DEWS and employees’ entitlements to DEWS under the Employment Law.

41. Mr Nirub did not dispute that the Defendant did not pay the Claimant’s outstanding salary until 12 September, 41 days after it was due to be paid. Mr Nirub did not challenge the Judge’s findings in relation to penalties or the Judge’s calculation of the penalties due under the Employment Law. Mr Nirub’s submission was to the effect that it was not moral or ethical for the Claimant to claim the penalties. That is not a legal defence.

42. Mr Nirub did dispute the Claimant’s entitlements to leave payment and to an air ticket.

43. At the hearing of this appeal, Mr Nirub said in effect that the Defendant did not keep leave records because it did not have an HR department and had no formal leave application process. Mr Nirub did not dispute the facts found by the learned Judge and did not point to any evidence that the Judge’s findings in relation to annual leave were wrong.

44. Mr Nirub challenged the Judge’s findings in relation to the air ticket. The Judge’s finding was a finding of fact after viewing the relevant documents and hearing the oral statements of the Claimant and Mr Nirub.

45. An appeal against a finding of fact can only succeed where the finding had no evidence to support it; or was based on a misunderstanding of the evidence; or was one no reasonable judge could have reached.

46. There is no basis for the Court to interfere with the Judge’s findings in relation to the Claimant’s leave entitlement or the air ticket.

47. In any event, even if the Judge had not allowed the Claimant the leave entitlements or the cost of an air ticket, that would not affect the outcome of the case. That is because the Judge found that the Claimant’s entitlements amounted to AED 40,783.81 but only gave judgement for the amount the Claimant had claimed - AED 23,632.26. If the Claimant is not entitled to leave entitlements of AED 10,031.95 or an air ticket to her home country in the sum of AED 3,267.05., the Claimant’s entitlements would still have amounted to more than the amount claimed by the Claimant and for which the Judge entered judgment - AED 23,632.26.

48. Put another way, the Claimants entitlements to DEWS and penalties, which the Appellant does not challenge on legal grounds, exceed the amount for which the Claimant was granted judgment and therefore the findings in relation to leave and the air ticket does not affect the outcome of the case.

49. Mr Nirub believes that the Defendant is a charity and having paid the outstanding salaries that the Claimant pursued in August 2023, the Claimant is not morally or ethically entitled to any further payment. However, that provides no legal defence to the Claimant’s claim or a ground of appeal that has any prospect of success.

50. The learned Judge considered the evidence and submissions before him, including the Claimant’s emails the Appellant relies on. His Excellency found that the Claimant was entitled to the employment benefits claimed by the Claimant.

51. Those are findings which are entrusted to the trial judge.

52. An appellate court should intervene only if it is satisfied that the Judge was wrong. It is not sufficient that the appellate court might have reached a different decision if it were the trial court.

53. The Defendant has not shown that there is a real prospect that the appeal court would find that the learned trial Judge made any error in the assessment of the evidence. The Defendant has not shown that if permission to appeal was granted there is a real prospect it might succeed. The Defendant has shown no other compelling reason the appeal should be heard.

54. The appeal would have no real prospect of success. There is no other compelling reason the appeal should be heard.

55. The Permission Application will be dismissed.