Holden v Hatisha Recruitment Ltd [2017] DIFC SCT 267 (23 November 2017)

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Cite as: [2017] DIFC SCT 267

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Holden v Hatisha Recruitment Ltd [2017] DIFC SCT 267

November 23, 2017 SCT - Judgments and Orders

Claim No. SCT 267/2017

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

Court

 

In the name of His Highness Sheikh Mohammed Bin Rashid Al Maktoum,

Ruler

Ruler
of Dubai

 

IN THE SMALL CLAIMS TRIBUNAL

Tribunal
OF DIFC COURTS
DIFC Courts

BEFORE SCT JUDGE

Judge
NASSIR AL NASSER

BETWEEN

HOLDEN

  Claimant

Claimant
/Counter- Defendant
Defendant

and

 

HATISHA RECRUITMENT  LTD

Defendant/Counter-Claimant

 

Hearing:  6 November 2017

Judgment:13 November 2017

JUDGMENT OF SCT JUDGE NASSIR AL NASSER

 

UPONhearing the Claimant and the Defendant

AND UPONreading the submissions and evidence filed and recorded on the Court

Court
file

IT IS HEREBY ORDERED THAT:

  1. The Claimant’s claim shall be dismissed in full.

  2. The Defendant’s counterclaim shall be dismissed in full.

  3. Each party shall bear their own costs.

Issued by:

Nassir Al Nasser

SCT Judge

Judge

Date of issue: 13 November 2017

At: 12pm

 

 

THE REASONS

The Parties

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

  2. The Defendant is Hatisha Recruitment LTD (herein “the Defendant”), a company registered in the DIFC
    DIFC
    , Dubai.

 Background and the Preceding History

  1. The underlying dispute arises over the employment of the Claimant by the Defendant in the position of “Principal Consultant” by an Employment Agreement signed on 2014 (the “Employment Agreement”) with an effective starting date of 17 March 2014.

  2. Pursuant to the Employment Agreement, the Claimant’s total annual salary was AED 390,000 which consists of basic salary. In addition, the Claimant was also entitled to 25 working days’ annual leave per annum.

  3. On 18 September 2017, the Claimant was terminated due to alleged breaches made by the Claimant.

  4. On 2 October 2017, the Claimant filed a claim in the DIFC Courts
    DIFC Courts
    ’ Small Claims Tribunal
    Tribunal
    (the “SCT”) for payment of unpaid salary from 27 August 2017 to 18 September 2017 in the sum of AED 26,630.14, unused holiday entitlement (6 days) in the sum of AED 8,876.71, gratuity in the sum of AED 110,958.90 for the period of employment, notice for arbitrary dismissal in the sum of AED 135,000 and a penalty equivalent to the last daily wage for each day the employer is in arrears in the sum of AED 1479.45 for each day after 2 October 2017. Therefore, the remedy sought by the Claimant is in the sum of AED 281,465.81 plus any additional penalty as per article 18(2), legal costs and any additional award for damages the court considers fit.

  5. The Defendant responded to the Claim on 5 October 2017 defending against the Claim and additionally filed a Counterclaim
    Counterclaim
    claiming the dismissal of the Claimant’s Claim entirely and to recover all monies paid to the Claimant by way of bonuses for work he fraudulently claimed to have executed whilst employed by the company. The amounts the Defendant is claiming are, overpaid personal bonus in 2016 in the sum of AED 75,614, management bonus paid in 2017 in the sum of AED 15,000, the cost of high achievers’ trip he attended in 2017, cost of a watch he was awarded as part of the high achievers’ prize in the sum of AED 8,840.28. Therefore, the total remedy sought by the Defendant is the sum of AED 103,594.12 as well as their legal costs and any additional award for damages the court considers fit.

  6. The parties met for a Consultation with SCT Officer Ayesha Bin Kalban on 12 October 2017 but were unable to reach a settlement.

  7. Both parties attended the hearing before me listed on 6 November 2017.

The Claim

  1. The Claimant’s case is that he was employed by the Defendant from 14 March 2014 onwards, he was terminated as alleged on 18 September 2017.

  2. The Claimant asserts that he was arbitrarily dismissed without notice, and therefore, he seeks the payment of unpaid salary from 27 August 2017 to 18 September 2017 in the sum of AED 26,630.14, unused holiday entitlement (6 days) in the sum of AED 8,876.71, gratuity in the sum of AED 110,958.90 for the period of employment, notice for arbitrary dismissal in the sum of AED 135,000 and a penalty equivalent to the last daily wage for each day the employer is in arrears in the sum of AED 1479.45 for each day after 2 October 2017. Therefore, the remedy sought by the Claimant is in the sum of AED 281,465.81 plus any additional penalty as per article 18(2), legal costs and any additional award for damages the court considers fit.

  3. The Claimant alleges that on Thursday, 14 September 2017, during the company summer party at Havilah, he was confronted and dishonoured and disgraced in front of the team by Mr. Haruhi. Furthermore, the Claimant alleges that Mr. Haruhi announced his intention to terminate the Claimant’s employment. He also adds, that he left the party early at about 7:30pm. He then later that night sent as alleged false apologies to Mr. Haruhi only to save his job.

  4. On Monday, 18 September 2017, four days after the summer party, the Claimant attended a meeting with Mr. Haruhi who as alleged by the Claimant told him that he is terminating him on grounds of unsatisfactory performance in relation to his management team. The Claimant alleges that he tried to argue that this was unfair, unjustified and the timing was unfortunate, but Mr. Haruhi did not give him the chance.

  5. In addition, the Claimant asserts that on the same day, he emailed the CEO of the Defendant requesting written confirmation of this decision. Furthermore, he asked for his final settlement as per his contract. But he alleges that no response was received, and no termination letter was received on the alleged date of termination.

  6. Furthermore, he adds that on the same day he was immediately removed from the company’s IT systems and returned the office key, and company laptop, as requested. On 19 and 20 September 2017, he alleges that he cooperated in the handover, returning to the company all property owned by them and provided information that they had requested as part of the post termination process.

  7. The Claimant also alleges that on 20 September 2017, as soon as he returned the company’s property and provided the information requested, Mr Haruhi emailed him alleging gross misconduct and threatening him with criminal action. In addition, he alleges that the Defendant indicated that he refused to pay the Claimant’s contractual entitlement of pay in lieu of notice and end of service gratuity. He also alleges that the Defendant asked him if he wanted to meet to negotiate a settlement.

  8. In response to the Defendant’s email, the Claimant sent an email rejecting the allegations and requested a meeting to negotiate terms of termination.

  9. The Claimant asserts that during his employment he was never the subject of disciplinary action and that his performance management review took place every six months and throughout this period, no negative reviews were given to the Claimant. Furthermore, there were no written or verbal warnings and no meeting took place in relation to any of the alleged negative behavioural or performance issues.

 The Defence and Counterclaim

  1. The Defendant alleges that the Claimant has been dismissed for cause for two main reasons. The first reason is the Claimant’s repeated demonstration of unacceptable behaviour, resulting in the Defendant’s Dubai team and senior management’s loss of confidence and trust in him, as well as exposing the Defendant to potential liability to third parties and financial loss; and second, his fabrication of stated deals he claimed to have executed which have now been discovered to be fraudulent, in an effort to inflate his performance and increase his bonus.

  2. The Defendant alleges that the Claimant fabricated a series of deals stemming from 2016 onwards. Furthermore, he alleges that the Claimant has been overpaid by AED 103,594.12 which he wishes to recover in full. The breakdown of the amounts as alleged by the Defendant are:

    • Overpaid personal bonus in the sum of AED 75,614 paid due to the Claimant’s fabricated deals.

    • 2017 management bonus in the sum of AED 15,000.

    • High achievers trip in Dubai in the sum of 4,139.84 and a watch in the sum of AED 8,840.28.

  3. Furthermore, the Defendant alleges that employees from the Dubai Office provided disturbing feedback about the behaviour of the Claimant. The accusations were that he was setting a poor example in the office with his work ethic, he was distracting members of staff, repeatedly taking one or two of them out of the office in the afternoons to go to the pub, drink alcohol and play during office hours. Furthermore, the Defendant adds that he was singling certain individuals out for totally unjustified, harsher treatment and was simply not acting with the appropriate level of professionalism that benefits the Defendant.

  4. The Defendant also alleges that on several occasions, the Claimant exhibited unacceptable behaviour. He alleges that in September 2014, on a business trip to Istanbul the Claimant got unacceptably drunk which resulted in him being aggressive and inappropriate and went missing for almost 24 hours. On December 2014, allegations of the Claimant involved in inappropriate behaviour in the office made by a former employer, in which at a social event held by the company the Claimant created a scene which took the intervention of another employee to diffuse. In June 2015, an alleged involvement in an inappropriate, lewd whatsapp image that was created by former employee and sent to another employee. This image was degrading, the Claimant failed to manage the situation appropriately when it arose, but it was also alleged that he physically showed the image to others in the office. In September 2015, the Defendant alleges that the Claimant sent highly inappropriate emails of a personal nature to a female candidate of the company which resulted in a formal complaint being made by this candidate’s partner. In August 2016, there is a further allegation of drunk and inappropriate behaviour whilst entertaining two clients. The Claimant drunkenly abused one of the two clients which almost resulted in the client refusing to deal with the company again. In February 2017, on the high flyers trip in Dubai the Claimant got drunk and inappropriate, the Claimant started sharing unexpected topics which were inappropriate. In September 2017, at the Defendant’s summer party at Havilah, the Defendant alleges that the Claimant acted in an appalling manner. He got drunk and verbally abusive mostly towards Mr. Haruhi, which the whole team witnessed. He was asked to stop, yet he persisted. It is also alleged that the Claimant left the scene and came back with inviting two ladies in bikinis to join the party, who were respectably asked to leave. He then left the party taking Mr. Haruhi’s mobile phone. Later, the Claimant sent a number of texts apologising for his unacceptable behaviour.

  5. The Defendant also alleges that during the week of 17 September 2017, the Defendant had contemplated terminating the Claimant. However, during their review the Defendant alleges that they discovered that a number of his deals were in fact fabricated or were exaggerated in their level of completion. In which the Defendant alleges that he fabricated those documents to receive the yearly bonus.

  6. The Defendant also alleges that upon his termination, the Defendant calculated his unpaid salary and unused holidays which were sent to him on 5 October 2017.

  7. The Defendant is seeking the dismissal of the Claimant’s Claim in its entirety and that the Claimant be ordered to pay the Company back all monies he unlawfully received as a result of his fabrication of deals.

 Discussion

  1. This dispute is governed by the DIFC Employment Law in conjunction with the relevant Employment

  2. The main question is whether the Claimant was terminated with cause or without cause.

  3. The Claimant filed his claim on 2 October 2017, claiming payment unpaid salary from 27 August 2017 to 18 September 2017 in the sum of AED 26,630.14, unused holiday entitlement (6 days) in the sum of AED 8,876.71, gratuity in the sum of AED 110,958.90 for the period of employment, notice for arbitrary dismissal in the Sum of AED 135,000 and a penalty equivalent to the last daily wage for each day the employer is in arrears in the sum of AED 1479.45 for each day after 2 October 2017. Therefore, the remedy sought by the Claimant is in the sum of AED 281,465.81 plus any additional penalty as per article 18(2), legal costs and any additional award for damages the court considers fit.

  4. On 24 September 2017, the Defendant argues that the Claimant received a termination letter from the Defendant’s legal representative
    Legal Representative
    , stating that the Claimant has been terminated with cause for his actions and behavior in the Defendant’s summer party held at Havilah, toward his colleagues which were in grave violation of the Defendant’s standard policies and for fabrication of work to inflate performance which led to the receipt of an unlawful bonuses.

  5. Article 59A of the DIFC Employment Law No.4 of 2005 as amended by Law No.3 of 2012 states the following:

“An Employer or an Employee may terminate an employee’s employment for cause in circumstances where the conduct of one party warrants termination of employment and where a reasonable employer or employee would have terminated the employment.”

  1. The Claimant argues that during the Defendant’s summer party at Havilah he was confronted, dishonored and disgraced in front of the team by Mr. Haruhi. He also alleged that Mr. Haruhi announced his intention to terminate the Claimant’s contract. Furthermore, he alleged that he left the summer party early and sent messages to Mr. Haruhi later with a false apology.

  2. However, the Claimant failed to provide any evidence that the reason of termination was personal and failed to provide any evidence of what he argues and alleges.

  3. On the other hand, the Defendant argues that the Claimant misbehaved at the summer party and became drunk and started being aggressive toward Mr. Haruhi and other employees. The Defendant supported his allegations with witness statements from employees who were present and affected by the Claimant’s actions.

  4. Although the Claimant denies the allegations made by the witnesses, he did not support his denial with evidence. I have examined the witness statements filed by the Defendant, most of which tell the same story of what happened. I am satisfied with the witness statements provided.

  5. In addition, the dates which the termination took effect as alleged by the Claimant was on 18 September 2017, but the official termination letter sent by the Defendant’s legal representative was on 24 September 2017. The letter clearly stated that the termination is with cause due to the Claimant’s unaccepted conduct and fabrications of performance to receive a bonus.

  6. Therefore, I am satisfied that the witness statement adequately supports the Defendant’s termination of the Claimant’s contract with cause. In addition, the Claimant failed to provide any evidence of the allegations made by him.

  7. I find that the Defendant paid the Claimant his salary from 27 August 2017 to 18 September 2017 and his vacation in lieu. I also find that the Claimant is not eligible to gratuity, notice for arbitrary dismissal and Article 18(2) of the DIFC Employment Law.

  8. For the reasons mentioned above I dismiss the Claimant’s Claim in full.

The Counterclaim

  1. The Defendant sought the repayment of monies paid to the Claimant because of his fabrication of a series of deals stemming from 2016 onward. The Defendant alleges that he has overpaid the Claimant the sum of AED 103,594.12 which he wishes to recover in full. The breakdown of the amounts as alleged by the Defendant are:

    • Overpaid personal bonus in the sum of AED 75,614 paid due to the Claimant’s fabricated deals.

    • 2017 management bonus in the sum of AED 15,000.

    • High achievers trip in Dubai in the sum of 4,139.84 and a watch in the sum of AED 8,840.28.

  2. The Defendant in his submissions argues that during the week 17 September 2017, they had contemplated terminating the Claimant but during that period, they were conducting a general review of the deals including those handled by the Claimant. During the review the Defendant alleges that they discovered a number of the Claimant’s deals were fabricated or were exaggerated in terms of their level of completion.

  3. However, the Claimant argues that he did not receive any monies in relation to any of the deals mentioned in the Defendant’s submissions. He argues that the Defendant’s policy is that they will only release commission payment for successful placements once the client has paid the invoiced fees.

  4. In addition, the Claimant argues that the Defendant failed to achieve AED 800,000 because many deals were in Qatar. Therefore, because of the boycott with Qatar that income fell through. He also alleges that Mr. Haruhi and the CEO instructed him to recover what he could.

  5. The Defendant did not provide sufficient evidence to establish that the Claimant fabricated the deals in order to receive a bonus, the Defendant did not submit any financial documents to support his claim. In fact, the Defendant filed a schedule with notes and, yes, there are deals that are uncompleted, but it was due to certain reasons which are not in the Claimant’s control. Furthermore, the Defendant did not provide any evidence that the bonus paid was in relation to the deals in the schedule.

  6. The Defendant did not provide sufficient evidence to support his Counterclaim. Therefore, I dismiss the Defendant’s Counterclaim in full for lack of evidence.

 

Conclusion

  1. In light of the aforementioned, I find that the Defendant terminated the Claimant’s employment contract with cause, therefore, the Claimant is not entitled to an award for gratuity, Arbitral dismissal or Article 18(2) of the DIFC Employment Law.

  2. In relation to the Counterclaim filed by the Defendant, I dismiss the Defendant’s Counterclaim for lack of evidence.

  3. Therefore, I dismiss the Claimant’s Claim and the Defendant’s Counterclaim and each party shall bear their own costs.

 

 

Issued by:

Nassir Al Nasser

SCT Judge

Date of Issue: 13 November 2017

At: 12pm

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URL: http://www.bailii.org/ae/cases/DIFC/2017/sct_267.html