 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
The Dubai International Financial Centre |
||
|
You are here: BAILII >> Databases >> The Dubai International Financial Centre >> Neda v Natalie [2024] DIFC SCT 062 (16 May 2024) URL: http://www.bailii.org/ae/cases/DIFC/2024/DSCT_062.html Cite as: [2024] DIFC SCT 062, [2024] DIFC SCT 62 |
||
[New search] [Help]
Neda v Natalie [2024] DIFC SCT 062
May 16, 2024 SCT - JUDGMENTS AND ORDERS
Claim No: SCT 062/2024
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
NEDA
Claimant
and
NATALIE
Defendant
Hearing : 28 March 2024 Judgment : 16 May 2024 JUDGMENT OF H.E. JUSTICE MAHA AL MHEIRI
UPON the Claimant’s claim filed on 6 February 2024
AND UPON a hearing having been held before H.E. Justice Maha Al Mheiri on 28 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 sum of AED 6,596.1 in relation to the below:
(a) Payment in lieu of holidays; and
(b) Payment in lieu of contributions that were not made by the Defendant to a qualifying scheme on the Claimant’s behalf.
2. The Defendant shall pay a penalty under Article 19 of the DIFC Employment Law in the amount of AED 13,942.71.
3. The Defendant is partially successful in its Counterclaim and the Claimant shall pay the Defendant the amount of AED 999.
4. The Defendant shall pay the Claimant the DIFC Courts’ filing fee in the amount of AED 390.80.
Issued by:
Hayley Norton
SCT Judge and Assistant Registrar
Date of issue: 16 May 2024
At: 12pmTHE REASONS
The Parties
1. The Claimant is Neda (the “Claimant”), an individual filing a claim against the Defendant regarding her employment at the Defendant company.
2. The Defendant is Natalie (the “Defendant”), a company registered 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 dated 2 November 2021 (the “Employment Contract”). Pursuant to the Employment Contract, the Claimant was employed in the position of Hostess with a monthly salary of AED 5,200, consisting of the following:
(a) Basic salary in the sum of AED 3,000; and
(b) Living out allowance in the sum of AED 2,200.
4. On 2 February 2022, the Claimant’s basic salary was increased to AED 3,500 by a letter sent from the Defendant.
5. On 21 November 2023, the Claimant tendered her resignation letter with the intention to serve a 1 month notice period. On 30 November 2023, during her notice period, the Claimant stopped attending work due to non-payment of salaries.
6. On 6 February 2024, the Claimant filed a claim with the DIFC Courts’ Small Claims Tribunal (the “SCT”) seeking the following reliefs in the amount of AED 21,370.75:
(a) Payment in lieu of 14 days’ annual leave in the amount of AED 3,683.12;
(b) Payment for 1 public holiday in the amount of AED 263.08;
(c) Reimbursement for a health insurance claim in the amount of AED 493.40;
(d) End of service payment in the amount of AED 2,987.91; and
(e) Imposition of a daily penalty under Article 19(1) of the Employment Law from 14 December 2023 to the 6 February 2024, totaling AED 13,943.24.
7. On 15 February 2024, the Defendant filed its defence with counterclaim (the “Counterclaim”) and is counterclaiming the following from the Claimant:
(a) The sum of AED 4,800 due to the Claimant failing to attend work and serve the remainder of the notice period; and
(b) Payment of AED 999 for an unpaid cheque for New Years celebration at the restaurant.
8. On 7 March 2024, the parties attended a Consultation before SCT Judge Maitha AlShehhi, however, they 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 28 March 2024 (the “Hearing”).
Discussion
10. 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.
11. I shall set out below each of the Claimant’s claims, the Defendant’s defence to each Claim, and accordingly, the Court’s reasoning and finding.
12. The Defendant presented to the Claimant a final settlement that confirms the Claimant’s entitlement to the pending annual leave and public holiday. The only disagreement is the amount entitled to the Claimant. The Defendant confirmed that the the Claimant is entitled to 14 days’ annual leave and 1 day public holiday, and the calculations are as follow:
(5,700 x 12/ 260) = 263.08 per day x 15 days pending = AED 3,946.2
Reimbursement of unpaid insurance bill
13. The Claimant submits that she is entitled to be reimbursed the amount she paid in respect of a medical bill. The Claimant submits that her insurance was not renewed at the time she visited the doctor and she was forced to pay her own bill. The Claimant argues that the Defendant promised that she will be reimbursed for the amount. The Claimant presented a WhatsApp conversation which shows the Defendant confirming that 80% of the claim will be reimbursed and the Claim should be sent by email. The Claimant also argues that the Defendant was late to renew the insurance.
14. The Claimant sought to draw the Court’s attention to the insurance provider’s FAQs which states as follows:
“10. The insurer was late sending my card and applied a copay/deductible on my claim. Can I get this reimbursed?
Yes you can, if the insurer delayed processing your medical card, the co-payment can be reimbursed. Please reach out to us at claims@insurance.com and the team will liaise with the insurer for your reimbursement.”
15. The Court is of view that although the Defendant failed to share the insurance card with the Claimant on time, the insurance policy was valid and renewed on time. The insurance provider clarifies that in the situation where the insurer is late to renew there is mechanism to check if the card is renewed.
16. The Defendant submitted copies of the Claimant’s insurance cards as evidence.. I find that there exists no gap in time between the renewal and the expired insurance card. As such I shall dismiss this claim for lack of evidence.
End of service payment
17. Following the Claimant’s resignation, the Claimant is seeking an end of service payment in the amount of AED 2,987.91. There is no dispute between the parties in relation to the Claimant’s entitlement under the DEWS scheme, however, the parties are in dispute of the calculation.
18. 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)”
19. 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. …
(3) For the purposes of Article 66(2):
(a) an Employee’s Basic Wage shall not be less than fifty percent (50%) of the Employee’s Annual Wage;
(b) the daily rate of an Employee’s Basic Wage shall be calculated by dividing the Employee’s Basic Wage by three hundred and sixty five (365);
(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…”
20. The abovementioned clauses provide that an employer is required to pay amounts equal to the core benefits set out by the DIFC Employment Law, and that such amounts are to be paid into a Qualifying Scheme. The Qualifying Scheme Commencement Date is defined in the Law to be 1 February 2020.
21. There is evidence to support that the Claimant was not enrolled into a qualifying scheme at the beginning of her employment. It is submitted that once she was enrolled, there was a technical issue with the Claimant’s DEWS account, as such, I will provide calculations for the period that there were no payments made into in the qualifying scheme. This period is between 2 December 2021 to 31 March 2022 and from 1 April 2023 to 30 November 2023.
22. In light of this, I order that the Defendant shall pay the Claimant an amount equal to the minimum 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. This is to be calculated as follows.
23. The Claimant’s basic wage as AED 3,500 as stated in Article 66(3)(a) of the DIFC Employment Law.
24. Between 2 December 2021 – 31 December 2021:
Gratuity = AED 3,500 basic wage x 12 months / 365 days = AED 115.07 per day.
AED 115.07 (being the Claimant’s daily basic wage) x 5.83%= AED 6.71 per day x 30 days = AED 201.3.
25. Between 1 January 2022 – 31 March 2022:
The Claimant’s monthly basic wage is AED 3,500 x 5.83% (being the minimum contribution amount defined by the Employment Law) = AED 204.05 per month x 3 months = AED 612.15.
26. Between 27 October 2021 – 31 December 2022:
The Claimant’s monthly basic wage is AED 3,500 x 5.83% (being the minimum contribution amount defined by the Employment Law) = AED 204.05 per month x 9 months = AED 1,836.45.
27. Therefore, in accordance with the above, the Claimant’s entitlement in regards to contributions that should have been made by the Defendant to a qualifying scheme is AED 2,649.9.
Article 19 penalty in accordance with the DIFC Employment Law
28. The Claimant seeks the accrual of a daily penalty in the amount of her daily wage pursuant to the Defendant’s failure to pay her employment entitlements within 14 days of the her last working day. The Claimant submits that she should be entitled to this penalty charge from 14 December 2023, being 14 days from 30 November 2023.
29. Article 19 of the DIFC Employment Law stipulates as follows:
i. “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.
ii. 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).
iii. 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.
iv. 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.”
30. 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).
31. In accordance with Article 19(1) of the DIFC Employment Law, the Defendant ought to have paid the Claimant by 14 December 2023, however, the Claimant filed a case on 6 February 2024. I also highlight that Article 19(4)(a) directs that the Court will waive the penalty amount accrued and accruing for the period of time in which a dispute is pending with the Courts. Therefore, I am of the view that the Claimant is entitled to 53 days of penalty pursuant to Article 19 of the DIFC Employment Law.
32. The last day as to when the Defendant ought to have paid the Claimant her pending dues was 14 December 2023 (14 days from the termination date of 30 November 2023) and given that the Claimant filed her claim on 6 February 2024, I find that the Defendant is liable to pay a penalty of 53 days in compliance with Article 19(4) of the DIFC Employment Law. The Claimant’s monthly salary is AED 5,700 x 12 months/260 days = AED 263.07 daily wage x 53 days = AED 13,942.71.
33. For my reasons above, I find that the Claimant is entitled to payment of a penalty under Article 19 of the DIFC Employment Law in the amount of AED 13,942.71 due to the Defendant’s failure to pay the Claimant’s remuneration on time.
Counterclaim
Compensation for the Claimant’s failure to serve the remainder of her notice
34. The Defendant submits that the Claimant has breached the Employment Contract by failing to provide a notice of termination as defined in Article 62(2)(b) of the DIFC Employment Law No. (4) of 2021, whereby Claimant must provide sufficient notice of termination being 30 days’ notice as per Articles 62(2)(b).
35. The Defendant submits that the Claimant has not provided notice of termination and has abruptly stopped coming to work without any reason or qualification. The Claimant has breached the Employment Contract and the DIFC Employment Law, as stipulated in Article 62.
36. In review of the parties’ submissions, as I have found that the Defendant failed to provide the Claimant’s outstanding salaries, the Court shall consider this action as reasonable grounds for termination for cause for the Claimant.
37. In addition, the Defendant failed to provide any evidence to demonstrate the damage that it has allegedly been subjected to by the Claimant not serving the remainder of the notice. Accordingly, I dismiss the Defendant’s Claim for compensation for the Claimant’s failure to serve the remainder of her notice.
Unpaid cheque for New Years celebration in the amount of AED 999
38. The Defendant submits that the Claimant attended the New Year’s celebration party and the party is sold by seats, each being AED 999, and the Claimant failed to pay her bill before leaving.
39. The Claimant submits that she only had one drink and was invited as a guest to the party and provided evidence to support her submissions.
40. After review of the WhatsApp conversation provided by the Claimant, I am not persuaded that she was a guest or not as there is no clear confirmation of this argument. Accordingly, the Claimant shall pay the Defendant the amount of AED 999.
Conclusion
41. In light of the aforementioned, I find that the Defendant shall pay the Claimant the sum of AED 6,596.1 in relation to the below:
(c) Payment in lieu of holidays; and
(d) Payment in lieu of contributions that were not made by the Defendant to a qualifying scheme on the Claimant’s behalf.
42. The Defendant shall pay a penalty under Article 19 of the DIFC Employment Law in the amount of AED 13,942.71.
43. The Defendant’s counterclaim for the amount of AED 999 is accepted.
44. I am of the view that, as the Claimant has been successful in some of her claims, she 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 390.80 for the Court fee.