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You are here: BAILII >> Databases >> The Dubai International Financial Centre >> Nathaniel v Nico [2024] DIFC SCT 160 (05 July 2024) URL: http://www.bailii.org/ae/cases/DIFC/2024/DSCT_1602.html |
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Nathaniel v Nico [2024] DIFC SCT 160
July 05, 2024 SCT - JUDGMENTS AND ORDERS
Claim No: SCT 160/2024
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 MHEIRIBETWEEN
NATHANIEL
Claimant
and
NICO
Defendant
Hearing : 6 June 2024 Further Submissions : 3 July 2024 Judgment : 5 July 2024 JUDGMENT OF H.E. JUSTICE MAHA AL MHEIRI
UPON the Claimant’s claim filed on 24 April 2024
AND UPON a hearing having been held before H.E. Justice Maha Al Mheiri on 6 June 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 Defendant shall pay the Claimant the sum of AED 106,259.11 in relation to unpaid salaries and Article 19.
2. The Claimant shall, by no later than 4pm on 8 July 2024, provide the Court with 3 quotations reflecting one way flight tickets to the Philippines.
3. The Defendant shall cancel the Claimant’s visa and pay any pending fines.
4. The Defendant shall pay the Claimant the DIFC Courts’ filing fee in the amount of AED 1,305.94.
Issued by:
Hayley Norton
SCT Judge and Assistant Registrar
Date of issue: 5 July 2024
At:2pmTHE REASONS
The Parties
1. The Claimant is Nathaniel (the “Claimant”), an individual filing a claim against the Defendant regarding his employment at the Defendant company.
2. The Defendant is Nico (the “Defendant”), a restaurant located 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 commenced on 11 January 2017 (the “Employment Contract”). Pursuant to the Employment Contract, the Claimant was employed in the position of food service supervisor and later promoted to CDP Sushi with a monthly salary of AED 3,200. This was broken down to:
Basic Salary AED 1,920 Housing Allowance AED 800 Transportation Allowance AED 480 4. Subsequently, during his employment, the Claimant engaged in unauthorized activities, including stealing food from the restaurant and providing discounted meals to friends. An internal investigation was conducted, leading to the preparation of an incident report on 22 June 2022.
5. Following the investigation, the Claimant resigned on 23 June 2022, without notice. After which the Defendant filed a criminal case against the Claimant in the Dubai Court of First Instance. The initial judgment was in favor of the Defendant, but the Claimant appealed the decision in the Appeal Court and the final judgment issued on 3 April 2024 was in favor of the Claimant, clearing all charges.
6. On 24 April 2024, the Claimant filed a claim with the DIFC Courts’ Small Claims Tribunal (the “SCT”) seeking the following reliefs:
(a) Payment in lieu of pending salary from the month of June in the amount of AED 2,933;
(b) Payment in lieu of 1 month notice in the amount of AED 4,000;
(c) Payment in lieu of pending annual leave for 8 days in 2021 and 12 days in 2022 in the amount of AED 4,000;
(d) Payment in lieu of Airfare for the Claimant in the amount of AED 3,000;
(e) End of Service gratuity in the amount of AED 8,016.25;
(f) Article 19 penalty in accordance with the DIFC Law No. 2 of 2019, in the amount of AED 40,000; and
(g) Cancelation of visa and payment of fines
7. On 22 May 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 6 June 2024 (the “Hearing”).
Discussion
9. 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.
10. I shall first set out the Claimant’s claims, and the Defendant’s defence to each Claim, and accordingly, the Court’s reasoning and finding.
June salary
11. The Claimant is requesting payment of his salary for the month of June in the amount of AED 2,933. The Defendant failed to provide any evidence to support the payment of the 23 days paid in June, and this has not been reflected in his final settlement computation provided by the Defendant.
(106.67 x 23 = AED 2,453.41)
12. The Court finds that the Claimant is entitled to be paid the days he has worked in June in the amount of AED 2,453.41.
Notice period
13. The Claimant is seeking payment for his notice period in the amount of AED 4,000. In reply, the Defendant denied the notice period arguing that the Claimant stopped coming to work.
14. In review of the Claimant’s resignation email the Claimant did mention that he is resigning with immediate effect, and he is willing to serve his notice period if the Defendant’s requires. However, the Claimant did not serve any notice period and the Defendant did not request the Claimant to attend work. Accordingly, the Claimant’s claim for notice period is dismissed.
Unpaid days off
15. The Claimant submits that he is entitled to 8 days in 2021 and 12 days in 2022 until his last working day with the Defendant, and therefore he is claiming the amount of AED 3,266.62 as compensation for the days off.
16. Article 16(1)(f) of the DIFC Employment Law imposes an obligation on an employer to maintain such a record of such days and states as follows:
“An Employer shall keep records of the following information:
(a) the dates of the Public Holidays taken by the Employee and the Daily Wages paid by the Employer in respect thereof;”
17. According to the Defendant’s records, the Claimant is only entitled to 13 days in 2022 until 21 June 2022; clause 9 of the Claimant’s Employment Contract stipulates as follows:
“9- you will be entitled to an annual leave for period of 30 days upon successful completion of each year of service period …”
18. I have already established that the Claimant’s last working day is 23 June 2022, as such the Claimant is entitled to his annual leave until that last day, the 2 days pending are 0.16 days added to 13 days. The Claimant’s daily payment shall be calculated 3,200x12/260= 147.69.
13.16 days x 147.69 = AED 1,943.60
19. Therefore, I shall grant the Claimant’s claim in respect of the 13.16 days of unpaid annual leave in the amount of AED 1,943.60.
Flight Allowance
20. The DIFC Employment Law is silent on an employee’s entitlement to airfare in the form of an allowance. 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 Employment Contract they have entered into. Clause 10 of the Employment Contract stipulates as follows:
“10. A return economy class air ticket will be provided to you from Dubai every 2 year of service period.”
21. In the Claimant’s final settlement calculation, they have included a flight ticket to the amount of AED 1,500. In light of this, I find that the Claimant’s claim to his airfare of an economy flight ticket to Philippines is accepted, the Claimant shall provide 3 quotations of one way air tickets to the Philippines by no later than 4pm on 8 July 2024 for the Court’s consideration.
End of service payment
22. End of Service Gratuity and Contributions to Qualifying Scheme, 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)
(c) … ;”
23. 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...”
24. The abovementioned clauses provide that an employer is required to pay an employee, within 14 days of the employee’s termination date, a gratuity payment, in addition to amounts equal to the core benefits set out by the DIFC Employment Law, such amounts to be paid into a Qualifying Scheme. The gratuity payment to be paid must be for any period of service prior to the Qualifying Scheme Commencement Date, which is defined in the Law to be 1 February 2020. Therefore, I find that the Claimant is entitled to his gratuity payment, as accrued until 31 January 2020, calculated below.
25. The Claimant’s basic wage is AED 1,920, and the gratuity payment is to be calculated against the period of service from the Claimant’s first working day with the Defendant until 31 January 2020. The Claimant worked from 11 January 2017, meaning the period of service to be calculated for gratuity is 3 years and 20 days.
Gratuity = AED 1,920 basic wage x 12 months / 365 days = AED 63.12 per day x 63 days (for the 3 years) = AED 3,976.56
Gratuity for 20 days = 1.75 days / 30 = 0.05 per day x 20 days = 1 day x AED 63.12 = AED 63.12.
In accordance with the above, the Claimant is entitled to AED 4,039.68 for gratuity payment.
26. The parties have provided evidence to demonstrate that the Claimant has been enrolled into a Qualifying Scheme, but the only amount paid into the scheme was a total of AED 2,169.24. In light of this, I order that the Defendant pay to the Claimant the remainder of the benefits set out by the DIFC Employment Law, which would reflect the contributions that the Defendant would have paid into the qualifying scheme had it complied with the requirements of the DIFC Employment Law.
27. The Claimant’s employment duration was for 5 years, 5 months and 11 days. Taking into consideration the period of service undertaken by the Claimant prior to the commencement date of the Qualifying Scheme, the Claimant would be entitled to contributions for the period between 1 February 2020 to his resignation on 23 June 2022.
Between 1 February 2020 – 31 May 2022:
The Claimant’s monthly basic wage is AED 1,920 x 5.83% (being the minimum contribution amount defined by the Employment Law) = AED 111.94 per month x 27 months = AED 3,022.38.
Between 1 June 2022 – 23 June 2022:
AED 63.12 (being the Claimant’s daily basic wage) x 5.83%= AED 3.68 per day x 23 day = AED 84.64.
28. Therefore, in accordance with the above, the Claimant’s entitlement in regard to contributions that should have been made by the Defendant to a qualifying scheme is AED 3,107.02.
29. The Claimant is entitled to the amount of AED 7,146.7 for the whole period of his employment. The Court shall consider the amount paid in the qualifying scheme in the amount of AED 2,169.24. The remainder of the amount will be the Claimant’s End of Service entitlement.
30. The Defendant shall pay the Claimant the amount of AED 4,977.46 for his End of Service Entitlement.
Article 19 penalty in accordance with the DIFC Employment Law
31. 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 due to the false accusation that the Defendant filed against him. The Defendant denies this claim in its entirety.
32. Article 19 of the DIFC Employment Law stipulates as follows:
(1) 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.
(2) 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).
(3) 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.
(4) 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.
33. 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).
34. I also highlight that Article 19(4)(a) directs that the Court will waive the penalty amount accrued and accruing for the period in which a dispute is pending with the Courts. Therefore, I am of the view that the Claimant that the Claimant is entitled from 8 July 2022 to 23 April 2024 being the 656 days until the Dubai case was finalized and the Claimant filed his Claim.
AED 3,200x 12/260 = AED 147.69 x 656 = AED 96,884.64
35. Therefore, I shall grant the Claimant’s claim in respect of the Article 19 in the amount of AED 96,884.64.
Visa Fines
36. The Claimant submits that the Defendant is responsible to pay his visa fines as they falsely accused him of stealing and this prolonged the process of him receiving his employment entitlements and cancelling his visa. The Defendant denies Claimant’s submissions and responds that they will submit a request to government services to waive the fines and cancel the visa.
37. The Court finds the Defendant responsible to cancel the Claimant’s visa and pay all pending fines. Due to the Claimant’s circumstances being that he was falsely accused by the Defendant this action delayed the Claimant’s visa cancelation and the accumulation of fines under the Claimant’s name. Accordingly, the Court finds the Defendant liable to cancel the Claimant’s visa and pay all fines in relation to the visa.
Conclusion
38. In light of the aforementioned, I find that the Defendant shall pay the Claimant the sum of AED 106,259.11 in relation to unpaid salaries.
39. I am of the view that, as the Claimant has been successful in some his claims, he should be entitled to recover the fee in respect of the claims. The Defendant shall therefore pay to the Claimant the amount of AED 1,305.94 for the Court fee.
