Claim No. SCT 176/2023
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 MAHA AL MHEIRI
BETWEEN
MRUTIO
Claimant
and
MAQIT RESTAURANT
Defendant
| Hearing : | 1 August 2023 |
|---|---|
| Further Submissions : | 11 August 2023 |
| Judgment : | 25 August 2023 |
JUDGMENT OF H.E. JUSTICE MAHA AL MHEIRI
UPON this Claim being filed on 5 May 2023
AND UPON a hearing having been listed before H.E. Justice Maha Al Mheiri on 1 August 2023, with the Claimant and the Defendant’s representative attending
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 sum ofAED 10,307.64.
2. The Defendant shall provide the Claimant with a repatriation air ticket to Turkey.
3. The Defendant shall pay the Claimant a portion of the Court fee in the sum ofAED 367.50.
4. The Defendant’s Counterclaim is dismissed.
Issued by:
Hayley Norton
SCT Judge and Assistant Registrar
Date of issue: 25 August 2023
At: 8am
THE REASONS
The Parties
1. The Claimant is Mrutio (the “Claimant”), an individual filing a claim regarding his employment at the Defendant company.
2. The Defendant is Maqit Restaurant (the “Defendant”), a restaurant located at, 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 commenced on 2 May 2022 (the “Employment Contract”).
4. On 26 April 2023, the Defendant terminated the Claimant’s employment with immediate effect due to the Defendant’s performance and continued warning letters.
5. On 5 May 2023, the Claimant filed a claim in the DIFC Courts’ Small Claims Tribunal (the “SCT”) claiming various sums set out as follows:
(a) Salary for the month of April in the amount of AED 6,000;
(b) 1-month remuneration in lieu of his notice period in the amount of AED 6,000;
(c) Payment in lieu of 16 days of untaken annual leave in the amount of AED 3,200;
(d) 2 days of untaken public holidays in the amount of AED 400;
(e) End of service gratuity in the amount of AED 6,000;
(f) Outstanding cashiering dues for the month of April and unpaid tips;
(g) Reimbursement of a uniform payment in the amount of AED 2,500; and
(h) Airfare for the Claimant to Turkey in the amount of AED 2,500.
6. On 1 June 2023, the Defendant filed its defence with counterclaim (the “Counterclaim”) and is counterclaiming the following from the Claimant:
(a) The recovery of the employee startup benefit package in the amount of AED 4,500; and
(b) Recovery of the amount of AED 1,786 due to manipulation of point-of-sale system.
7. The parties met for a Consultation with SCT Judge Delvin Sumo on 7 July 2023 but were unable to reach a settlement. In line with the rules and procedures of the SCT, this matter was referred to me for determination, pursuant to a Hearing held on 1 August 2023.
The Claim
8. The Claimant’s case is that he was employed with the Defendant as a ‘Host’ from 2 May 2022 until 26 April 2023. As provided above, the Defendant terminated the Claimant’s employment with immediate effect due to termination with cause.
9. The Claimant, pursuant to his termination, had sought to agree an amount to be paid to him by the Defendant. The amounts proposed by the Claimant were denied by the Defendant and therefore the Claimant proceeded to file his Claim with the SCT. Each of the Claimant’s Claims are set out in the Discussion below.
10. The total sum claimed by the Claimant as set out in the Claim Form is AED 30,457, in addition to the Court fees.
The Defence
11. The Defendant, in response to the Claim, rejected some of the Claimant’s claims and has agreed to settle others, those claims being:
(a) The Claimant’s claim for 26 days that he worked in April in the amount of AED 5,200;
(b) Payment in lieu of 2 public holidays, in the amount of AED 400; and
(c) A repatriation ticket to Turkey.
12. The Defendant’s defence to each of the Claimant’s claims and its Counterclaim are set out in the Discussion below.
Discussion
13. This dispute is governed by DIFC Employment Law No. 4 of 2021 (the “DIFC Employment Law”) in conjunction with the relevant Employment Contract.
14. I shall set out below each of the Claimant’s claims, the Defendant’s defence to each Claim, and accordingly, the Court’s reasoning and finding.
1-month remuneration in lieu of the Claimant’s notice period
15. The Claimant submits that pursuant to his Employment Contract he is entitled to 1-month notice. He claims that his notice period would commence from 27 April 2023, and that he is entitled for payment for 30 days’ notice, being 1 month according to the Employment Contract.
16. In response to this claim, the Defendant submits that the Claimant was given several warning letters during his employment with the Defendant and has provided copies of these warning letter, some being verbal warning letters that were then documented and others that were written notices with the Claimant’s signature on them. In addition, the Claimant provided the Claimant’s performance review form which indicates that the Claimant was not doing well in his performance. The review suggests that the Claimant scored unacceptable and needed improvement in his form.
17. In review of Clause 63 of the DIFC Employment Law, if an employee is terminated with cause then the employee is not entitled to a notice period and his end of service benefits are calculated up until his last day. Clause 63 of the DIFC Employment Law reads as follows:
“63. Termination for cause
(1) An Employer or an Employee may terminate an Employee’s employment with immediate effect for cause in circumstances where the conduct of one (1) party warrants termination and where a reasonable Employer or Employee would have terminated the employment as a consequence thereof.
(2) …
(3) If an Employer terminates the employment of an Employee for cause pursuant to Article 63(1):
a. the Employee shall not be entitled to receive any payment of Wages in lieu of their notice period; and
b. (b) the Employee’s Gratuity Payment and outstanding Vacation Leave shall be calculated up to the Termination Date.”
18. The Court is satisfied that the Defendant has provided sufficient evidence to demonstrate that the Claimant was terminated for cause. Therefore, I shall dismiss the Claimant’s claim for 1-month remuneration in lieu of his notice period.
Payment in lieu of untaken annual leave
19. The Claimant claims an amount of AED 3,200 as the amount accrued against his untaken annual leave. The Claimant submits that he is entitled to 16 days of his annual leave to be paid to him by the Defendant.
20. The Defendant submits that the Claimant has only accrued 19.67 days as of the date of his termination, and he utilised 10 days leaving an outstanding balance of 9.67 days, and therefore states that the Claimant is entitled to the amount of AED 1,934, being the sum of 9.67 days of leave.
21. Pursuant to the Claimant’s Employment Contract, the Claimant is entitled to 30 days per year, and as determined above, the Claimant’s last working day is 26 April 2023. The DIFC Employment Law reads as follows:
“9 Leave
9.1 Annual Leave The employee shall be entitled to thirty (30) calendar days (inclusive of weekends and public holidays) of paid annual leave for each completed period of continuous twelve (12) months of employment; to be taken at such time or times as may be agreed at least sixty (60) days in advance with the management. Any annual leave request before completion of one (1) year of continuous service but more than three (3) months will be accrued on pro-rata basis. Annual leave must be used within the year and cannot be carried over.
The employee is not entitled to ‘encashed’ vacation days earned except in case of termination by the employer or otherwise agreed by as a special case.
If requested to work during Public holidays (as per the DIFC public holiday announcements and schedule) the employee is eligible to reschedule his/her work week to allow for these days to be taken off. Alternatively, unused public holidays can be added to vacation days upon a submitted and approved request by the direct manager.
The employee is not entitled to ‘encashed’ public holidays unless agreed by as a special case.”
22. I do not agree with the Defendant’s submission that the Claimant is entitled to 20 days per year based on the DIFC Employment Law. In the event the Claimant’s Employment Contract was silent in relation to his leave entitlement then the Court would be required to revert to the DIFC Employment Law for the annual leave entitlement. However, the parties have agreed as per the Claimant’s Employment Contract that he is entitled to 30 days per year. The Claimant accumulated 27 days of annual leave from 2 May 2022 until his last working day being 26 April 2023. The Claimant only availed 10 days from his annual leave as per the Defendant’s records and the remaining balance until his last working day is 17 days. As such, I find that the Claimant shall be paid the amount of AED 4,707.64 (AED 6,000 x 12/260 = 276.92 x 17 days = AED 4,707.64).
End of service gratuity
23. The Claimant claims the sum of AED 6,000 for his gratuity, which he is entitled to pursuant to the Employment Contract.
24. The Defendant’s response is that the Claimant should not be entitled to end of service benefits as he did not complete 1 year of employment with the Defendant.
End of Service Gratuity and Contributions to the Qualifying Scheme
25. Article 19 of the DIFC Employment Law stipulates the following:
“(1) An Employer shall pay to an Employee, within fourteen (14) days after the Termination Date:
a. all Remuneration…
b. where applicable, any Gratuity Payment that accrued prior to the Qualifying Scheme Commencement Date under Article 66(1) not transferred to a Qualifying Scheme under Article 66(6)”
26. Article 66 of the DIFC Employment Law states, where relevant, that:
“(1) An Employee who is not required to be registered with the GPSSA under Article 65(`), and who completes continuous employment of at least one (1) year with their employer, before or after the Qualifying Scheme Commencement Date is entitled to a Gratuity Payment for any period of service prior to the Qualifying Scheme Commencement Date on the termination of their employment. …
(2) An Employee’s Gratuity Payment shall be calculated as follows:
(a) an amount equal to twenty one (21) days of the Employee’s Basic Wage for each year of the first five (5) years of service prior to the Qualifying Scheme Commencement Date; and
(b) an amount equal to thirty (30) days for the Employee’s Basic Wage for each additional year of service prior to the Qualifying Scheme Commencement Date. …
…
(7) From the Qualifying Scheme Commencement Date an Employer shall, on a monthly basis, pay to a Qualifying Scheme, for the benefit of each Employee who is not an Exempted Employee, an amount equal to as least the Core Benefits, which shall be calculated as follows:
(a) five point eight three percent (5.83%) of an Employee’s Monthly Basic Wage for the first (5) years of an Employee’s service, inclusive of any period of employment of Secondment served to prior to the Qualifying Scheme Commencement Date; and
(b) eight point three three percent (8.33%) of an Employee’s Monthly Basic Wage for each additional year of service…”
27. The abovementioned clauses provide that an employee is required to work a minimum period of 1 year for him to be eligible to receive his gratuity payment in accordance with the DIFC Employment Law. As such the Claimant’s claim for his gratuity payment shall be dismissed.
Outstanding cashiering dues for the month of April and unpaid tips.
28. The Claimant submits that he is entitled to AED 500 for cashiering and the tips for the months of April and May 2023.
29. The Defendant states that monthly tips are not a contractual obligation and are discretionary. The Defendant submits that, as an employer, it has the discretion to decide how tips ought to be distributed between its employees.
30. After review of the DIFC Employment Law, the Claimant’s Employment Contract and the Employee handbook I find that they are silent in relation to tips and cashiering entitlements. Although such a benefit is common in employment relationships in the hospitality sector, the general practice in this Court is to proceed with what is agreed upon by the parties in the agreement they have entered into.
31. In light of this, I find that the Claimant is not entitled to the claims as they are discretionary and based upon the Defendant.
Reimbursement of a uniform payment made by the Claimant
32. The Claimant submits that he has made a payment towards the supply of 3 suits to wear to work as the Defendant failed to provide a uniform for the Claimant in the amount of AED 2,500. The Defendant contests this claim and submits that it has not agreed to pay the Claimant this sum.
33. The Court requested that the Claimant provide evidence to support his claim, however no evidence was provided. Accordingly, I dismiss the Claimant’s claim for the amount of AED 2,500.
Airfare for the Claimant to Turkey
34. The Claimant seeks an airfare for himself to his home country, Turkey, in the amount of AED 2,500. The Claimant claims this pursuant to Clause 10 of the Employment Contract, which refers the employee to the Employee Handbook. The Employee Handbook includes forms and does not specify the mechanism for availing the air ticket nor whether this would be provided by cash or as a pre-booked ticket.
35. The Defendant responded to this claim by stating that in accordance with the Employee Handbook, an employee should complete 1 year before he can request for ticket encashment and the Defendant only agrees to issue a repatriation ticket upon cancelation of his visa and not encashment of the ticket.
36. The DIFC Employment Law is silent on an employee’s entitlement to airfare. Such a benefit is common in employment relationships, and the general practice in this Court is to proceed with what is agreed upon by the parties in the agreement they have entered into. As such, I find that Clause 10 and the Employee Handbook lacks clarity as to what happens to this benefit in situations where the employee was terminated. In review of the papers before me and pursuant to the parties’ submissions in the Hearing, I agree with the Defendant approach.
37. In light of this, I find that the Claimant is entitled to his airfare in the manner of a one-way ticket issued under the Claimant’s name to Turkey.
Counterclaim
The recovery of Employee startup benefit package in the amount of AED 4,500
38. The Defendant submits that the Claimant was terminated before 1 year of his employment. As per the signed Employment Contract, the Defendant seeks the recovery of the Employee start up benefit package of AED 4,500 based on termination of his contract before completing 12 months of employment and for termination for misconduct, as per the Employment Contract and the Employee Handbook and the consent letter signed by the Claimant.
39. Article 21 of the DIFC Employment Law states, where relevant, that:
“21. Recruitment costs
(1) An Employer shall not request, charge or receive, directly or indirectly, from a person seeking employment, a payment for:
(a) employing or obtaining employment for the person seeking employment; or
(b) providing information about Employers seeking Employees.
(2) Subject to Article 21(3), an Employer is not permitted to recoup from an Employee any costs or expenses incurred by the Employer in the course of recruiting the Employee.
(3) If an Employee terminates their Employment Contract for any reason other than termination for cause under Article 63, and their Termination Date falls within a period of six (6) months from the Employee's date of commencement of employment, the Employer may, subject to Article 57(2), recoup from the Employee such reasonable costs or expenses which:
(a) were directly incurred by the Employer in the course of recruiting the Employee;
(b) are supported by proof of expenditure provided by the Employer to the Employee; and
(c) are specified in the Employment Contract as being payable by the Employee to the Employer in such circumstances.
(4) A payment received by an Employer in contravention of this Article at the expense of an Employee is deemed to be a debt due to that Employee equal to the amount charged to the Employee.”
40. In review of Article 21, I find that the Claimant has completed 11 months of employment working for the Defendant, although the Claimant signed and agreed to pay the amount of AED 4,500, I am of the view that if he did not complete 1 year, these conditions fall foul of the DIFC Employment Law.
41. In addition, the Defendant failed to provide any evidence to demonstrate that training was conducted from an external provider. Internal training provided by the employer is a necessity when it comes to employing new employees. Accordingly, I dismiss the Defendant’s Claim for the amount of AED 4,500.
Recovery of the amount of AED 1,786 due to manipulation of point-of-sale system
42. The Defendant submits that the Claimant has manipulated the point of sales by adding orders in the system and cancelling them after preparation or gifting them to customers without charge.
43. The Claimant rejects those claims stating that he does not have the power on the system to do that without managerial approval. In addition, the Claimant adds that if these incidents were happening during his employment, they were not raised as a concern by the Defendant until after his termination which does not make sense.
44. In review of the parties’ submissions, I find that the Defendant did not provide sufficient evidence to support their claim. The Defendant also failed to provide the audit report to demonstrate that these manipulations were a result of the Claimant’s actions. Accordingly, I dismiss the Defendant’s claim for the amount of AED 1,786.
Conclusion
45. In light of the aforementioned, I find that the Defendant shall pay the Claimant the sum of AED 10,307.64.
46. The Defendant shall provide the Claimant with a repatriation air ticket to Turkey.
47. I am of the view that, as the Claimant has been unsuccessful on some his claims, he should be entitled to recover a portion of the fee in respect of the claims for which he has been successful. The Defendant shall pay the Claimant the amount of AED 367.50 being 2% of the judgment sum owed to the Claimant.