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Nour v Naoyuki [2024] DIFC SCT 239

September 06, 2024 SCT - JUDGMENTS AND ORDERS

Claim No. SCT 239/2024

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 COURT

BETWEEN

NOUR

Claimant

and

NAOYUKI

Defendant

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Hearing :	19 August 2024
Judgment :	6 September 2024

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JUDGMENT OF H.E. JUSTICE NASSIR AL NASSER

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UPON this Claim being filed on 14 June 2024 (the “Claim”)

AND UPON a hearing held before H.E. Justice Nassir Al Nassir on 19 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.

1. There shall be no order as to costs.

Issued by:
Delvin Sumo
SCT Judge and Assistant Registrar
Date of issue: 6 September 2024
At: 10am

 

THE REASONS

 

The Parties

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

4. The Defendant is Naoyuki (the “Defendant”), a company registered and located in DIFC, Dubai, UAE.

Background and the Preceding History

5. The underlying dispute arises over the employment of the Claimant by the Defendant pursuant to an offer letter dated 10 May 2024 (the “Offer Letter”).

6. On 14 June 2024, the Claimant filed her claim with the DIFC Courts’ Small Claims Tribunal (the “SCT”) compensation for moral and financial damages to the sum of AED 267,885.

7. On 21 June 2024, the Defendant filed an Acknowledgment of Service with the intention to defend all the claim.

8. On 3 and 5 July 2024, a consultation was held before SCT Judge Maitha Al Shehhi, however the parties failed to amicably settle the claim.

9. In line with the rules and procedures of the SCT, this matter was referred to me for determination, pursuant to a hearing held on 19 August 2024 (the “Hearing”). The Claimant and the Defendant’s representative attended.

The Claim

10. The Claimant submits that she was working as finance director in a company in Dubai since 2022. On 5 January 2024, she received an invitation for an interview from the Defendant through a recruitment agency for the role of director of finance accounting and reporting.

11. On 7 March 2024, the Claimant received the unconditional final offer letter, in which she signed and shared with the Defendant on 11 March 2024. Consequently, the Claimant submits that she resigned from her previous position following which she served her 60 days’ notice period, ending on 9 May 2024. During her notice period, she received documents from the Defendant regarding her on-boarding.

12. The Claimant submits that on 9 May 2024 she received a phone call informing her that the Defendant withdrew the offer.

13. Therefore, the Claimant filed a claim, claiming moral and financial damages to the sum of AED 267,885.

The Defence

14. The Defendant submits that it suffered losses due to a bad financial situation because of a decrease in sales, which led the Defendant to impose a cutting policy. This resulted in company lay-offs.

15. The Defendant submits that there was an offer letter, and the offer letter can be amended.

16. The Defendant submits that it offered the Claimant a consultancy agreement with a salary of AED 15,000 per month as an alternative solution, however, this was rejected by the Claimant.

17. Therefore, the Defendant requests the Court to dismiss the Claimant’s claim, and award the Defendant costs of defending the claim.

Findings

18. 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 Offer Letter.

19. The employment relationship between the parties commenced by signing the Agreement, however, the start date was on 10 May 2024. The offer letter provides that the term of service is 2 years, and the probation period is 6 months.

20. The Employment offer letter was put on hold or withdrawn prior to the start date. Although such actions are discouraged, and an entity should be aware of its financial situation prior to reaching out to people offering jobs which they cannot later accommodate.

21. However, the Defendant has acted within its rights under the DIFC Employment Law. The Defendant could have employed the Claimant and terminated her on the same day while she was serving her probation period without notice as stipulated in Article 62 of the DIFC Employment Law, which 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).”

22. Therefore, I find that the Employment Law does not provide damages for situations such as the Claimant’s situation. In addition, I find that the Defendant has acted within its rights under the DIFC Employment Law. Hence, I dismiss the Claimant’s claim.