Claim No: SCT 182/2023
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
In the name of His Highness Sheikh Mohammad Bin Rashid Al Maktoum, Ruler of Dubai
IN THE SMALL CLAIMS TRIBUNAL
BEFORE H.E. JUSTICE MAHA AL MHEIRI
BETWEEN
MUPRIT
Claimant
and
MARUIT RESTAURANT AND LOUNGE DIFC
Defendant
| Hearing : | 20 June 2023 |
|---|---|
| Further Submissions : | 26 June 2023 |
| Judgment : | 7 July 2023 |
JUDGMENT OF H.E. JUSTICE MAHA AL MHEIRI
UPON the Claim Form being filed on 11 May 2023
AND UPON a Hearing being held before H.E. Justice Maha Al Mheiri on 20 June 2023, with the Claimant and the Defendant’s representative in attendance
AND UPON reviewing the documents and evidence submitted in the Court file
IT IS HEREBY ORDERED THAT:
1. The Defendant shall pay the Claimant the amount of AED 38,900.80.
2. The Defendant shall pay the Claimant the Court fee in the amount of AED 778.02.
3. The Defendant shall pay the overstay fines imposed on the Claimant directly to the relevant Government department.
Issued by:
Hayley Norton
SCT Judge and Assistant Registrar
Date of issue: 7 July 2023
At: 11am
THE REASONS
Parties
1. The Claimant is Muprit (the “Claimant”), an individual filing a claim against the Defendant regarding his employment at the Defendant company.
2. The Defendant is Maruit Restaurant and Lounge DIFC (the “Defendant”), a company registered in the DIFC located at Emirates Financial Tower, DIFC, Dubai.
Background and Hearing
3. The underlying dispute arises over the employment of the Claimant by the Defendant pursuant to an offer letter dated 27 November 2020 (the “Offer Letter”), and an employment contract dated 16 November 2022 (the “Employment Contract”). The Claimant was hired in the position of ‘Waiter’ with a monthly salary of AED 3,000 consisting of the following:
(a) Basic salary in the sum of AED 2,000; and
(b) Accommodation and transportation allowance in the sum of AED 1,000.
4. At the beginning of the Claimant’s employment he was promised to be transferred to the Defendant’s visa, this process was delayed by the Defendant to the point where the Claimant started to accumulate overstay charges under his name. The Claimant was without visa for 2 years, after which, he borrowed money from his family to pay for his overstay and for the Defendant to apply for his work visa. The Claimant paid the Defendant AED 11,250 to pay on his behalf to process his work visa.
5. The Defendant applied for the Claimant’s visa to Government services on 5 January 2023, but the Claimant’s application was denied.
6. The Claimant continued working until the closure of the Restaurant by the Dubai Police on 18 January 2023. The Claimant continued working with the Defendant until April 2023.
7. On 11 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 payment for 6 months from November 2022 to April 2023 in the amount of AED 18,000;
(b) Reimbursement for visa application and overstay fines in the amount of AED 11,250;
(c) Payment of 21 days of untaken public holidays for 2020 to 2023 in the amount of AED 6,300;
(d) Payment in lieu of annual leave for 2020 to 2023 in the amount of AED 3,000;
(e) Unpaid medical bill in the amount of AED 8,200; and
(f) Flight ticket to the Claimant’s home country in the amount AED 3,000.
8. The parties met for a Consultation with SCT Judge Hayley Norton on 8 June 2023 but were unable to reach a settlement.
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 20 June 2023 with the Claimant and the Defendant’s representative in attendance.
Discussion
10. This dispute is governed by the DIFC Law No. 4 of 2021 (Employment Law Amendment Law) (hereafter the “DIFC Employment Law”) in conjunction with the relevant Employment Contract.
11. I shall set out below each of the Claimant’s claims and the Defendant’s reply to each of the Claims. For the matters that the Defendant failed to provide evidence to support their defence the Court shall determine the matter on the basis of the DIFC Employment Law and the Employment Contract.
Outstanding salary for 6 months from November 2022 to April 2023
12. The Claimant is seeking payment for his outstanding salary in the sum of AED 18,00 for 6 months from November 2022 to April 2023.
13. The Defendant submits that the Claimant was terminated in 2021 by the Defendant, and he was employed again with a new contract on 16 November 2022. The Defendant also argues that after signing the Employment Contract the Claimant worked from November to 17 January 2023, where then the restaurant was closed by the Government.
14. The Court requested additional information from the Defendant, including proof of termination in 2021 and evidence that the Claimant was paid all of his dues when terminated the first time. In addition to evidence to demonstrate that he was paid his salary from November 2022 up until his last day, which the Defendant failed to do so.
15. The Defendant submitted a screenshot of an Instagram account of another club that posted a picture of a group of people from far away, arguing that the Claimant worked there in August 2022, in between the two contracts that he signed with the Defendant.
16. After review of the submissions filed by the parties, I find that the Claimant is an employee of the Defendant and the Defendant signed an offer letter and Employment Contract with the Claimant. Although the Defendant argues that the Claimant was not employed by them between 2021 to the period of signing the Employment Contract, the Claimant submitted a warning letter dated 11 May 2022, demonstrating that he was still an employee of the Defendant.
17. In addition, there is no termination letter from the Defendant terminating the Claimant’s services in 2021 or 2023 when the closure of the restaurant happened in January, and the picture submitted by the Defendant as proof does not show a clear face for the Court to be sure that the Claimant was working for another employer.
18. In addition, the Defendant failed to produce any evidence to demonstrate that he was paying the Claimant any monthly salary in that period. Accordingly, the Defendant is ordered to pay the Claimant the amount of AED 18,000 for his outstanding salary for the 6 months from November 2022 to April 2023.
Payment in lieu of untaken annual leave
19. The Claimant claims an amount of AED 3,000 as the amount accrued against his untaken 90 days of annual leave accrued for the year 2020 until April 2023. The Claimant claims this pursuant to Clause 12 of the Employment Contract, which reads as follows:
“12. Annual Leave Entitlement: In addition to United Arab Emirates public holidays (as declared for the private sector) the Employee will be entitled to 30 (thirty) calendar days of annual leave. Annual leave should be taken with the least disruption of the operation and prior approval must be obtained from your Manager and HR Manager. Annual leave should be taken during the current calendar year it is earned, unless required by Operation and justified by General Manager and approved by Managing Partners and Group HR. Otherwise leave balance cannot be cashed and cannot be carried forward.”
20. The Claimant submits that he is entitled to 30 days, for the years 2020 to 2023. The Claimant therefore claims 30 days of his annual leave to be paid to him by the Defendant. In reply, the Defendant argues that all pending annual leave for previous years were paid to the Claimant and there is zero balance from 2020 and when he re-joined in 2022.
21. Article 27 of the DIFC Employment Law which sets out that:
“Vacation Leave
(1) Subject to Article 30, an Employee who has been employed for at least ninety (90) days is entitled to paid Vacation Leave of twenty (20) Work Days in each Vacation Leave Year.
(2) An Employee is entitled to be paid their Daily Wage during Vacation Leave.
(3) An Employee is entitled to carry forward up to five (5) Work Days of accrued but untaken Vacation Leave into the next Vacation Leave Year for a maximum period of twelve (12) months after which any unused Vacation Leave shall expire. The amount of accrued but untaken Vacation Leave to be carried forward may be agreed between the Employer and Employee, provided that nothing shall preclude an Employee from rolling over at least five (5) Work Days per Vacation Leave Year.
(4) Vacation Leave is exclusive of Public Holidays to which an Employee is entitled.
(5) Unless otherwise agreed in writing by an Employee, and subject to Article 28(1), an Employee cannot receive payment in lieu of Vacation Leave.
(6) Unless otherwise agreed by an Employer, Vacation Leave cannot be converted to Sick Leave if an Employee is sick during any period of Vacation Leave.
Compensation in lieu of Vacation Leave
(1) Where an Employee's employment is terminated, the Employer shall pay the Employee an amount in lieu of Vacation Leave accrued but not taken up to and including the Termination Date calculated in accordance with Article 28(3).
(2) In the event that the Employee has taken more Vacation Leave than has accrued at the Termination Date, the Employer shall be entitled to deduct an amount calculated in accordance with Article 28(3) from any payments due to the Employee on the Termination Date.
(3) Compensation in lieu of Vacation Leave, or any amount owed by the Employee in respect of excess Vacation Leave taken, shall be calculated using the Employee's Daily Wage at the Termination Date.”
22. Although the Defendant argues that the Claimant availed all of his annual leave from 2020 and 2022, it has not provided any proof to support this statement. In the absence of such evidence, I shall rely upon the Claimant’s Employment Contract which reads as follows:
“Annual leave should be taken during the current calendar year it is earned, unless required by Operation and justified by General Manager and approved by Managing Partners and Group HR. Otherwise leave balance cannot be cashed and cannot be carried forward.”
23. The Claimant is entitled to payment in lieu of 10 days for the year 2023, as his last working day is 30 April 2023 (2.5 days per month). As such, I find that the Claimant shall be paid the amount of AED 1,000 (AED 3,000 x 12 / 260 = AED 138.46 daily wage x 10 = AED 1,384.6).
- 30 Days per year / 12 months = 2.5 days per month
- 2.5 Days x 4 months = 10 days
Reimbursement of unpaid medical bill
24. The Claimant submits that he is entitled to be reimbursed in respect of a medical bill paid on 8 July 2022, in the amount of AED 1,489 and another invoice dated 6 April 2023 in the amount of AED 1,008, and a pharmacy invoice in the amount of AED 25, due to the Defendant’s failure to provide medical insurance during the period of his employment. The Claimant provided invoices as evidence to support this submission.
25. The Defendant submits that the Claimant only submitted an estimate without the actual invoice and receipt.
26. Article 56 of the DIFC Employment Law which sets out that:
“Health insurance
An Employer is required to obtain and maintain health insurance cover for each of its Employees as may be required pursuant to the Regulations, Federal Law or Dubai Law. An Employer who contravenes this provision is liable to a fine as set out in Schedule 2.”
27. With the supporting evidence submitted by the Claimant, the Court will rule on the evidence that it has before it. The Court is satisfied that the medical invoice was paid by the Claimant but there is no prescription for the pharmacy bill as such it will not be accepted by the Court. The burden of proof falls upon the Claimant to provide his expense bill and I find with the lack of medical insurance provided by the Defendant the Claimant has met that burden of proof.
28. As such, I have determined that the Claimant’s claim for reimbursement of his medical expense is accepted, the Defendant shall pay the Claimant the amount of AED 2,497.
Flight Allowance
29. The DIFC Employment Law is silent on an employee’s entitlement to an 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 13 of the Employment Contract stipulates as follows:
“13. Airline Ticket Entitlement: Upon completion of 24 (Twenty Four) months uninterrupted service with the Company, the Employee will be entitled to 1 (one) round-trip economy ticket and in each subsequent period of 24 (Twenty Four) months, to the nearest international airport destination in your home country to coincide with the Employee's annual leave. The amount for the ticket, which will be set on a yearly basis, will be transferred to the employee on his/her anniversary month.”
30. In light of this, I find that the Claimant is entitled to his airfare in the manner set out in the Employment Contract. As such, the Defendant shall pay the Claimant his airfare for an economy flight ticket to Cameroon in the amount of AED 3,000.
Payment in Lieu of Public Holidays
31. The Claimant argues that he is entitled to payment in lieu of 21 days worked during Public Holidays for each year from 2020 to 2023 until his last working day, in the sum of AED 6,300. The Claimant has failed to specify which public holidays he wishes to claim payment against.
32. In reply, the Defendant denies that the Claimant is entitled to any payment for public holidays, as their submission is that after the offer letter in 2020, the Claimant stopped working for the Defendant. As stated above, this statement is denied.
33. The Court requested further submissions in relation to this claim, however, the Defendant failed to provide the requested evidence. It is the employer’s duty to keep a record of their employees’ attendance, as well as days worked, annual leave taken, and public holidays worked. The Defendant failed to fulfil its duty towards the Claimant by keeping such a record.
Article 16(g) of the DIFC Employment Law states the following:
“Payroll Records
(1) An Employer shall keep record of the following information:
…
(f) the dates of Public Holidays taken by the Employee and the Daily wage paid by the Employer in respect thereof”
34. As the Claimant failed to specify the days, the Court looked at the public holidays from the period of November 2020 to April 2023. During this period, there were 20 days of public holidays. Therefore, I find that the Claimant shall be paid the amount of AED 2,769.2 as payment for the 20 public holidays worked (AED 3,000 x 12 / 260 = AED 138.46 daily wage x 20 = AED 2,769.2).
Visa application and overstay fines AED 11,250 for visa application and overstay fines
35. The Claimant is claiming the amount of AED 11,250 for the amount he paid the Defendant for visa application and overstay, the Claimant provided a receipt from the Defendant that they received the amount of AED 7,250 and a WhatsApp conversation between him and the Defendant’s employee confirming the total amount of AED 11,250.
36. Article 57 of the DIFC Employment Law states the following:
“57. Visas and permits
(1) If an Employee is required to work in the DIFC, their Employer is required to obtain and maintain, at the Employer's own cost, the requisite sponsorship documentation (including UAE and DIFC identity documentation), visas, authorisations, licenses, permits and approvals as may be required from time to time by Federal Law, Dubai Law, a Competent Authority or a Personnel Sponsorship Agreement, to enable the Employee to work lawfully for the Employer in the DIFC and comply with any such requirements.
(2) An Employer is not permitted to:
(a) recoup any costs and expenses incurred pursuant to Article 57(1) from an Employee; or
(b) retain the passport or other original personal documents of an Employee.
(3) If an Employee is sponsored for UAE residence visa purposes by their Employer, the Employer and the Employee must cooperate to ensure the cancellation of the Employee’s UAE residency visa as soon as reasonably practicable following the Termination Date and by no later than thirty (30) days following the Termination Date.
(4) An Employer who contravenes Articles 57(1), (2) or (3) is liable to a fine as set out in Schedule 2.”
37. The Court is satisfied that the amount of AED 11,250 was received by the Defendant for overstay and processing of the visa. Although the Defendant submits that they applied for the Claimant’s visa but it was rejected, this expense should be the responsibility of the Defendant and not the Claimant.
38. It is the Defendant’s obligation to obtain and maintain the visa for any employee working for their company, and in the situation that it fails to meet its obligation as an employer, it must bear the consequences.
39. As the Defendant failed to obtain an employment visa for the Claimant, the Defendant shall settle the overstay charges imposed on the Claimant directly to the relevant Government department.
40. As such, I have determined that the Claimant’s claim for reimbursement of his visa expense is accepted, the Defendant shall pay the Claimant the amount of AED 11,250. In addition, the Defendant shall clear the overstay fine under the Claimant’s name for him to be able to go back to his home Country.
Conclusion
41. In light of the aforementioned, I find that the Defendant shall pay the Claimant the sum of AED 38,900.80.
42. I am of the view that, as the Claimant has been successful in some of his claims, he is entitled to partially recover the court fee applicable to the filing of this case. The Defendant shall therefore pay to the Claimant the amount of AED 778.02 for the Court fee.
43. The Defendant shall settle the overstay fines imposed on the Claimant directly to the relevant Government department.