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Naadira v Navtej [2024] DIFC SCT 107

August 16, 2024 SCT - JUDGMENTS AND ORDERS

Claim No: SCT 107/2024

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 OF DIFC COURTS

BETWEEN

NAADIRA

Claimant

and

NAVTEJ

Defendant

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Hearing :	12 August 2024
Judgment :	16 August 2024

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JUDGMENT OF H.E JUSTICE NASSIR AL NASSER

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UPON this Claim being filed on 8 March 2024 (the “Claim”)

AND UPON a hearing held before H.E Justice Nassir Al Nassir on 12 August 2024, with the Claimant and the Defendant’s representative in attendance (the “Hearing”)

AND UPON reviewing the documents and evidence filed and recorded on the Court file

IT IS HEREBY ORDERED THAT:

1. The Claimant’s claim shall be dismissed.

2. There shall be no order as to costs.

Issued by:
Delvin Sumo
SCT Judge and Assistant Registrar
Date of Issue: 16 August 2024
At: 9am

THE REASONS

The Parties

1. The Claimant is Naadira (the “Claimant”), an individual filing a claim against the Defendant regarding her employment at the Defendant’s company.

2. The Defendant is Navtej (the “Defendant”), a company registered and located in 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 dated 19 May 2023 (the “Employment Agreement”).

4. On 8 March 2024, the Claimant filed her claim with the DIFC Courts’ Small Claims Tribunal (the “SCT”) seeking compensation to cover debt expenses from December 2023 to July 2024 to the sum of AED 100,000.

5. On 2 July 2024, the Defendant filed an Acknowledgment of Service with the intention to defend all the claim.

6. On 16 July 2024, a consultation was held before SCT Judge Delvin Sumo, however the parties failed to amicably settle the claim.

7. 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 August 2024 (the “Hearing”). The Claimant and the Defendant’s representative attended.

The Claim

8. The Claimant files a claim for compensation for unfair and arbitrary termination of employment, 20 days prior to the end of her probation period.

9. The Claimant submits that the Defendant acted in bad faith in hiring the Claimant as a maternity cover.

10. The Defendant submits that the Claimant was employed on 30 May 2023 with a probation period of 6 months pursuant to Article 14(2)(1) of the DIFC Employment Law, agreed to as per clause 3.2 of the Employment Agreement.

11. The Defendant adds that on 10 November 2023, prior to the end of the probation period, the Claimant was dismissed in accordance with Article 62(6)(a) of the DIFC Employment Law, which allows termination without notice during probation period.

Findings

12. 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.

13. Clause 3.2 of the Employment Agreement provides that:

“the Employee will report for a probation period of 6 months from the date of commencement of work. Unless otherwise stated herein, termination of this Agreement after the probation period is only possible on observing three (3) months’ written notice period according to Article 15.”

14. Article 62 of the DIFC Employment Law provides that:

“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;

(b) thirty (30) days, if the period of continuous employment of the Employee is in excess of three (3) months but less than five (5) years, including any period of Secondment; or

(c) ninety (90) days, if the period of continuous employment of the Employee is in excess of five (5) years, including any period of Secondment.

(3) Article 62(2) shall not prevent an Employer and Employee from agreeing to a longer notice period in an Employment Contract.

(4) An Employer may only make a payment of Wages to an Employee in lieu of all or part of the Employee's notice period pursuant to Article 63(2) or if the Employee agrees to such a payment in an agreement entered into pursuant to Article 11(2)(b).

(5) An Employer may require an Employee not to attend work or undertake their duties during all or part of the Employee's notice period.

(6) Article 62(2) does not apply:

(a) during any probation period agreed in an Employment Contract;

(b) where it has been agreed in the Employment Contract that the Employee's employment will terminate on the expiry of a fixed term; or

(c) in respect of termination for excessive Sick Leave in accordance with Article 36(1).

15. It has been a long-standing principle that DIFC Employment Law is silent on unfair dismissal; it has been made clear in DIFC Court precedent that the Courts will not determine on or provide remedy for arbitrary/unfair dismissal, going back as far as 2009 in the Judgment of Justice Tan Sri Dato Seri Siti Norma Yaakob in Rasmala investments Ltd v Rana Banal & others [2009] DIFC CFI 006. Such a concept is present in UAE federal law only, and the restriction on DIFC employees to only be subject to the rights afforded in DIFC Employment Law No. 6 of 2019 is clear in Article 4 of the statute.

16. I find that the Defendant acted within its right in accordance with the Employment Agreement and Article 62(1) and Article 62(6)(a) of the DIFC Employment Law.

17. Therefore, I find that the Claimant’s claim shall be dismissed.