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You are here: BAILII >> Databases >> The Dubai International Financial Centre >> Nova v Norris [2024] DIFC SCT 025 (01 April 2024) URL: http://www.bailii.org/ae/cases/DIFC/2024/DSCT_025.html Cite as: [2024] DIFC SCT 25, [2024] DIFC SCT 025 |
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Nova v Norris [2024] DIFC SCT 025
April 01, 2024 SCT - JUDGMENTS AND ORDERS
Claim No. SCT 025/2024
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
In the name of His Highness Sheikh Mohammed Bin Rashid Al Maktoum,
Ruler of DubaiIN THE SMALL CLAIMS TRIBUNAL OF DIFC COURTS
BEFORE H.E. JUSTICE NASSIR AL NASSERBETWEEN
NOVA
Claimant
and
NORRIS
Defendant
Hearing : 25 March 2024 Judgment : 1 April 2024 JUDGMENT OF H.E JUSTICE NASSIR AL NASSER
UPON this Claim being filed on 15 January 2024;
AND UPON a hearing having been held before H.E Justice Nassir Al Nassir on 25 March 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 total sum ofAED 500,000.
2. The Defendant shall pay the Claimant the Court fee in the sum ofAED 10,000.
Issued by:
Hayley Norton
SCT Judge and Assistant Registrar
Date of issue: 1 April 2024
At: 2pmTHE REASONS
The Parties
1. The Claimant is Nova (the “Claimant”), an individual filing a claim against the Defendant regarding his employment at the Defendant company.
2. The Defendant is Norris (the “Defendant”), a company registered and located in the 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 17 December 2015 (the “Employment Agreement”).
4. On 15 January 2024, the Claimant filed his claim with the DIFC Courts’ Small Claims Tribunal (the “SCT”) seeking various employment claims in the sum of AED 500,000.
5. On 22 January 2024, the Defendant filed its acknowledgement of service with the intention to defend part of the claim.
6. On 19 February 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 25 March 2024 (the “Hearing”). The Claimant and the Defendant’s representative attended.
The Claim
8. The Claimant as per the Employment Contract was an employee of the Defendant from 17 December 2015 until 31 July 2023, being his last working day. The Claimant’s total monthly salary was AED 54,550.
9. The Claimant claimed the sum of AED 786,945.16 with regards to his end of service entitlements which consist of the following:
(a) Outstanding notice pay in the sum of AED 163,650;
(b) End of service gratuity in the sum of AED 198,417;
(c) Payment for outstanding annual leave in the sum of AED 107,605;
(d) Reimbursement of expenses in the sum of AED 51,847; and
(e) Penalties for late payment in the sum of AED 265,426.16.
10. However, due to the financial threshold of the SCT, the Claimant limited his claim to the sum of AED 500,000. In addition, the Claimant claims interest of 9% per annum on the amount claimed from the date of initiating the claim to the date of issuing the Judgment.
The Defence
11. The Defendant submits that it accepts that the Claimant is entitled to the sum of AED 418,715. However, the Defendant submits that there is a discrepancy of AED 81,285 between the amount claimed (i.e AED 500,000) and the amount which the Defendant accepts is owing to the Claimant.
12. The Defendant submits that within his calculations, the Claimant has included (i) payment of expenses for which the Defendant is not required to reimburse; (ii) payment of accrued but untaken annual leave which exceeds 5 days (i.e. the maximum amount that the Claimant is allowed to carry forward from the previous year as per Article 27(3) of the DIFC Employment Law); and (iii) late payment penalties in accordance with Article 19 of the DIFC Employment Law.
13. The Defendant adds that the Claimant has (i) disputed the amounts owed to him although he failed to engage in discussions concerning his calculations; (ii) refused to engage in the exit process; and (iii) remained unresponsive to the Defendant’s attempts to resolve the matter.
14. The Defendant submits that the Claimant’s unreasonable conduct has caused the delay in calculating his end of service entitlements. The Defendant submits that the DIFC Courts should dismiss any claim above the sum of AED 418,715 and order the Claimant to return all company property in his possession and complete any documentation required for the Defendant to be able to cancel the Claimant’s visa.
Discussion
15. 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 Employment Agreement.
16. Rule 53.2 of the Rules of the DIFC Courts provide that: the SCT will hear and determine claims within the jurisdiction of the DIFC Courts: (1) where the value of the claim or the value of the subject matter of the claim does not exceed AED 500,000; or (2) where the claim relates to the employment or former employment of a party; and all parties elect in writing that it be heard by the SCT (there is no value limit for the SCT’s elective jurisdiction in the context of employment claims).
Although the Claimant’s claim exceeds the threshold of AED 500,000. The Claimant limited his claim amount to AED 500,000 waiving the penalties for late payment and part of his claim for expenses.
17. The Defendant has agreed that the Claimant is entitled to the sum of AED 418,715 which consists of the following:
(a) Outstanding notice pay in the sum of AED 163,650;
(b) End of service gratuity in the sum of AED 198,417; and
(c) Payment in lieu of accrued but untaken annual leave 56,648.
18. The claims before the courts left for determination are (i) annual leave and (ii) whether the Claimant is entitled to expenses.
Annual leave
19. Clause 5 of the Employment Contract provides that “the Employee will be entitled to a fully paid annual leave of thirty (30) working days in every cycle of twelve (12) calendar months, annual leave must be applied for in writing one (1) month in advance, and the company will be entitled to grant annual leave in accordance with its operational requirements.”
20. The Claimant submits that he is entitled to two months’ salary for untaken leave, adding that the Defendant has agreed to this in writing by way of an email dated 25 September 2023. However, the Claimant submits that he does not agree with the full calculations of the final settlement and provided the court with the email to show that the Defendant has agreed to two months’ salary.
21. In addition, the Claimant provided a WhatsApp conversation dated 23 May 2023, showing he received a message from the HR Department stating the following:
“ Nova u didn’t go to any vacations?
As per Nadia
U have balance 60.”
22. The Defendant in its submission provides that the Claimant is entitled to payment of accrued but untaken leave to be calculated in accordance with the DIFC Employment Law, and that the Claimant is entitled to carry forward 5 days from the year 2022 and is entitled to 17.5 days for the year 2023.
23. Article 27(3) of the DIFC Employment Law, provides the following:
“27. Vacation Leave
(3) An Employee is entitled to carry forward 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.”
24. The Claimant provides that the Defendant in an email dated 25 September 2023 acknowledges the 60 days entitlement of vacation leave. In addition, the WhatsApp conversation with HR also confirms that the Claimant’s annual leave balance as per the HR records is 60 days.
25. However, for the year 2023, I agree with the Defendant’s calculation that the Claimant has worked for 7 months and is entitled to 17.5 days only.
26. I find that the Claimant is entitled to 47.5 days as per the evidence provided by the Claimant. Therefore, the balance of the accrued but untaken vacation leave shall be calculated on the Claimant’s daily wage as described in Clause 28(3) of the DIFC Employment Law which provides the following: “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.”
27. The Daily wage shall be calculated as follows: AED 54,550 x 12 months/260 days = AED 2,517.69 per day x 47.5 days of vacation leave accrued but untaken = AED 119,590.27 is the Claimant’s entitlement to payment of annual leave.
28. However, as the Claimant has only claimed the sum of AED 107,605 for this claim, I shall only be award the sum for which he has claimed.
Expenses
29. The Claimant submits that he is due to be paid expenses in the sum of AED 51,847.84 for travel and accommodation. The Claimant adds that the Defendant has been sent full details of these expenses.
30. The Claimant submits that the Defendant had previously agreed to pay, however, the Claimant failed to provide a copy of any agreement as evidence. The Claimant adds that he has always grouped a large sum of expenses and submitted them at once and they were never rejected by the Defendant.
31. The Defendant submits that the expense claims were made outside of the timeline stipulated for submitting expenses and, in any event, are a matter related to Nelson rather than the Defendant.
32. The Claimant provided an email from Mr Norwood dated 23 September 2023 which states the following: “ Neal, please reimburse him for his expenses ($14K) immediately per the board decision. It is delayed by a week now”.
33. I find that the Defendant has failed to provide the Court with a copy of the expenses policy which states the timeline to submit the expenses form and failed to provide any evidence that the expenses are related to Nelson .
34. Therefore, I find that the Claimant is entitled to his expenses in the sum of AED 51,847.
Conclusion
35. I have not discussed the Claimant’s claim for penalties under Article 19 of the DIFC Employment Law, as the Claimant’s other claims have already surpassed the SCT’s financial threshold to the sum of AED 521,519. Therefore, the Claimant shall be awarded a sum no greater than AED 500,000.
36. In light of the aforementioned, I find that the Defendant shall pay the Claimant the total sum ofAED 500,000.
37. The Defendant shall pay the Claimant the Court fee in the sum ofAED 10,000.