March 13, 2024 SCT - JUDGMENTS AND ORDERS
Claim No: SCT 510/2023
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
BEFORE H.E. JUSTICE MAHA AL MHEIRI
BETWEEN
NYLA
Claimant
and
NAOMI LIMITED
Defendant
| Hearing : | 5 March 2024 |
|---|---|
| Further submissions : | 12 March 2024 |
| Judgment : | 13 March 2024 |
JUDGMENT OF H.E. JUSTICE MAHA AL MHEIRI
UPON the claim having been filed on 22 December 2023
AND UPON a hearing having been listed before H.E. Justice Maha Al Mheiri on 5 March 2024, with the Claimant and the Defendant’s representative in attendance
AND UPON reading the submissions and evidence filed and recorded on the Court file
IT IS HEREBY ORDERED THAT:
1. The Defendant shall pay the Claimant the amount of AED 64,545.15.
2. The Defendant shall pay the Claimant the DIFC Courts’ filing fee in the amount of AED 1,290.90.
Issued by:
Hayley Norton
SCT Judge and Assistant Registrar
Date of issue: 13 March 2024
At: 1pm
THE REASONS
The Parties
1. The Claimant is Nyla (the “Claimant”), an individual filing a claim against the Defendant regarding his employment at the Defendant company.
2. The Defendant is Naomi Limited (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 employment contract dated 27 January 2023 with a start date of 6 February 2023 (the “Employment Contract”). The Claimant’s monthly remuneration is set out to be AED 25,000.
4. On 6 November 2023, the Claimant was terminated by the Defendant by way of an email with 1 month garden leave, as follows:
“Dear Nyla,
I hope this email finds you well. It is with regret that I must inform you that your employment with Naomi Limited will be terminated, effective Monday 6, Nov 2023. This decision has been made after careful consideration.
We understand that this is a challenging and difficult situation for you, and we want to assure you that this decision was not taken lightly. We are committed to providing you with the necessary support during this transition.
The following steps will be taken in the coming days:
1. Meeting to discuss next steps with your handover of company assets.
2. Meeting to discuss next step wrt notice period, visa validity, final pay, including any outstanding wages, vacation days, or other benefits owed.
Please understand that this decision is not a reflection of your worth as a person. We appreciate your time and effort while working with Naomi Limited.
Regards,
Niles
People Team
Naomi Limited
5. The Claimant finalised the cancellation of his employment visa and returned the Defendant’s company laptop before 20 December 2023 but did not receive his final settlement from the Defendant.
6. On 22 December 2023, the Claimant filed a claim with the DIFC Courts’ Small Claims Tribunal (the “SCT”) seeking the following relief:
(a) Pending partial payment of salary for the month of July 2023 in the amount of AED 1,000;
(b) Payment of salary for October and November, and 6 days of December in the amount of AED 54,838.33;
(c) Payment in lieu of 11 untaken annual leave days in the amount of AED 6,333.33; and
(d) Pending DEWS payment.
7. On 7 February 2024, the parties attended a Consultation before SCT Judge Hayley Norton, however, they 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 5 March 2024 (the “Hearing”).
Discussion
9. This dispute is governed by DIFC Employment Law No. 4 of 2021 (the “DIFC Employment Law”) in conjunction with the relevant Employment Contract.
10. I shall set out below each of the Claimant’s claims, the Defendant’s reply to each of the claims and, accordingly, the Court’s reasoning and finding.
Outstanding dues
11. The Claimant is seeking a pending payment in the amount of AED 1,000 from the salary of July 2023. The Defendant rejects the Claimant’s claims and argues that the amount was paid in the July salary.
12. At the Hearing, I directed the Defendant to provide evidence to support the alleged payment of the full July salary however no such evidence was filed, as such the Court shall direct the Defendant to pay the pending amount of the July salary in the amount of AED 1,000.
13. The Claimant is seeking payment for outstanding salary payments for the months of October, November and 6 days in December. At the Hearing, the Defendant presented a document which confirmed the Claimant’s entitlement to that amount. As such the Defendant shall pay the Claimant the amount of AED 54,838.70.
14. Accordingly, the Defendant is ordered to pay the Claimant the amount of AED 55,838.70 for his outstanding dues.
Payment in lieu of untaken annual leave
15. The Claimant claims an amount of AED 6,333.33 as the amount accrued against his 11 days of untaken annual leave. The Claimant submits that he is entitled to 20 days up until his last working day and has only availed 9 during the course of the current year. The Claimant therefore claims 11 days of his annual leave to be paid to him by the Defendant.
16. The Defendant submits that the Claimant has availed all of his annual leave days and took 3 extra days that he is not entitled to take. The Defendant supported his submissions with email evidence and excel sheets of the Claimant’s taken annual leave, although the Defendant submits that the Claimant took all of his annual leave, I find that the submissions confirm that the Claimant only availed 15 days of annual leave.
17. The Court finds that the accrual of annual leave is carried out gradually throughout the year, and that upon the termination of an employment relationship, any amounts owed would be pro-rated against the amount of time passed during the course of that year. The Claimant commenced working with the Defendant on 6 February 2023 and his last working day was 6 December 2023, (11 months of employment) which means he availed 18.26 days of annual leave. The Claimant utilised 15 days from the allowance of 18.26 days which means he is only entitled to 3.26 days.
18. As such, I find that the Claimant shall be paid the amount of AED 3,761.54 (AED 300,000/260 = 1,153.85 x 3.26 = AED 3,761.54).
DEWS payment
19. The Claimant is requesting payments with regards to the DIFC Employee Workplace Savings Scheme (“DEWS Payments”) for the month of July, until his last working day on 6 December 2023. The Claimant emailed the workplace saving scheme’s customer support team and he received confirmation that the last contribution paid by the Defendant was made in June 2023. The relevant email is set out below:
“Dear Nyla,
Thank you for contacting DEWS.
Please see attached your latest annual statement. They are being generated as per your employer's anniversary in the scheme, hence 2024 is not yet available.
For reference, I will mention the latest numbers below:
Your account is active without any leave date, however, the email address is invalid.
Your total contribution value is 956.48 USD, divided into:
Feb 23 – 162.96 USD
March 23 - 198.38 USD
April 23 - 198.38 USD
May 23 - 198.38 USD
June 23 - 198.38 USD”
20. As such the Defendant is directed to pay the Claimant the amount of USD 1,031.58 (AED 3,791.06) for the period from July 2023 until 6 December 2023
Article 19 penalty in accordance with the DIFC Employment Law
21. The Claimant seeks the accrual of a daily penalty in the amount of his daily wage pursuant to the Defendant’s failure to pay his employment entitlements within 14 days of the Claimant’s last working day. The Claimant submits that he should be entitled to this penalty charge from 20 December 2023, being 14 days from 6 December 2023.
22. Article 19 of the DIFC Employment Law stipulates as follows:
i. “An Employer shall pay to an Employee all Remuneration (excluding, where applicable, any Additional Payments deferred in accordance with Article 18(2)), the Gratuity Payment and all accrued Vacation Leave not taken, within fourteen (14) days after the Termination Date.
ii. Subject to the provisions of Article 19(3) and 19(4), an Employee shall be entitled to and the Employer shall pay a penalty equal to an Employee’s Daily Wage for each day the Employer is in arrears of its payment obligations under Article 19(1).
iii. A penalty pursuant to Article 19(2) may only be awarded to an Employee if the amount due and not paid to the Employee in accordance with Article 19(1) is held by a Court to be in excess of the Employee's Weekly Wage.
iv. A penalty pursuant to Article 19(2) will be waived by a Court in respect of any period during which:
(a) a dispute is pending in the Court regarding any amount due to the Employee under Article 19(1); or
(b) the Employee's unreasonable conduct is the material cause of the Employee failing to receive the amount due from the Employer.”
23. Pursuant to Article 19 (1) of the DIFC Employment Law, an Employer is required to pay an Employee all remuneration within fourteen (14) days after the termination, and in such instances where payment is not made within the time period, pursuant to Article 19(2) that Employer shall pay a penalty equal to an Employee’s daily wage for each day the Employer is in arrears of its payment obligation under Article 19(1).
24. In accordance with Article 19(1) of the DIFC Employment Law, the Defendant ought to have paid the Claimant by 20 December 2023, however, the Claimant filed a case on 22 December 2023. I also highlight that Article 19(4)(a) directs that the Court will waive the penalty amount accrued and accruing for the period of time in which a dispute is pending with the Courts. Therefore, I am of the view that the Claimant is entitled to 1 day penalty pursuant to Article 19 of the DIFC Employment law.
25. The last day as to when the Defendant ought to have paid the Claimant his pending dues was 20 December 2023 (14 days from the termination date of 6 December 2023) and given that the Claimant filed his claim on 20 December 2023, I find that the Defendant is liable to pay a penalty of 1 day in compliance with Article 19(4) of the DIFC Employment Law. The Claimant’s monthly salary is AED 25,000 x 12 months/260 days = AED 1,153.85 daily wage x 1 days = AED 1,153.85.
26. Hence, I find that the Claimant is entitled to a penalty under Article 19 of the DIFC Employment Law in the amount of AED 1,153.85 due to the Defendant’s failure to pay the Claimant’s remuneration on time.
Conclusion
27. In light of the aforementioned, I find that the Defendant shall pay the Claimant the sum of AED 64,545.15.
28. As the Claimant has been successful on sum of his claims, he should be entitled to recover the fee in respect of the claims he was awarded. The Defendant shall pay the Claimant the amount of AED 1,290.90.
