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You are here: BAILII >> Databases >> The Dubai International Financial Centre >> Nathan v Naomi [2024] DIFC SCT 065 (23 April 2024) URL: http://www.bailii.org/ae/cases/DIFC/2024/DSCT_065.html Cite as: [2024] DIFC SCT 65, [2024] DIFC SCT 065 |
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Nathan v Naomi [2024] SCT 065
April 23, 2024 SCT - JUDGMENTS AND ORDERS
Claim No: SCT 065/2024
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 SCT JUDGE MAITHA ALSHEHHIBETWEEN
NATHAN
Claimant
and
NAOMI
Defendant
Hearing : 4 April 2024 Judgment : 23 April 2024 JUDGMENT OF SCT JUDGE MAITHA ALSHEHHI
UPON the claim having been filed on 9 February 2024 (the “Claim”)
AND UPON the Defendant’s defence with counterclaim dated 1 April 2024 (the “Counterclaim”)
AND UPON a hearing having been listed before SCT Judge Maitha AlShehhi on 4 April 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 Defendant shall pay the Claimant the amount ofAED 3,900.
2. The Defendant’s Counterclaim shall be dismissed.
3. The Defendant shall pay the Claimant the DIFC Courts’ filing fee in the amount ofAED 367.25.
Issued by:
Hayley Norton
SCT Judge and Assistant Registrar
Date of issue: 23 April 2024
At: 11amTHE REASONS
Parties
1. The Claimant is Nathan (the “Claimant”), an individual filing a claim regarding his employment at the Defendant company.
2. The Defendant is Naomi (the “Defendant”), a company registered in the DIFC, Dubai, the UAE.
The Claim
3. The Claimant is seeking his end of service entitlements following his resignation from the Defendant company.
4. The Claimant states that prior to joining the Defendant, he entered into a verbal agreement with the Defendant for his salary to be in the amount of AED 3,500. However, the Claimant was surprised to find out that he was only offered AED 3,000, which he accepted in any event.
5. The Claimant submits that he started working on a trial period for the Defendant from 22 May 2023 until 9 June 2023, on a visit visa, at which point he had to travel back to his home country. The Claimant adds that the Defendant asked him to pay the visa costs in the amount of AED 2,200 and he accepted to do so, as he had no other choice and wanted to work for the Defendant upon his return.
6. As per the Claimant’s offer letter dated 9 June 2023 (the “Offer Letter”), the Claimant was hired in the position of Outside Sales Representative and Driver and his start date was 15 June 2023, however, the Claimant states that his first official working day was 1 July 2023.
7. Due to the Defendant’s failure to provide the Claimant with medical insurance as per the benefits provided for under the Offer Letter and due to his illness, the Claimant submitted his resignation on 29 January 2024.
8. The Claimant contends that he had to submit his resignation due to the bad working environment and the Defendant’s failure to adhere to the terms of the Offer Letter.
9. On 1 February 2024, the Claimant states that the Defendant contacted him to collect his passport.
10. On 5 February 2024, the Claimant collected his passport from the Defendant and was advised that his visa had been cancelled as the company is closing and he is not entitled to any payment as they used his final settlement amount to pay for the cancellation.
11. During his employment, the Claimant adds that the Defendant deducted AED 500 from his salary in the months of October, November and December 2023, without authorisation or approval from the Claimant. This is because the Claimant allegedly failed to bring new clients and the sales were not increasing.
12. The Claimant’s reasoning behind not serving his notice period is that the Defendant did not ask him to do so and proceeded to cancel his visa without his signature on the basis that the company was shutting down its business. As well as the fact that the Defendant refused to pay his salary as it was used to cover the visa cancelation fee.
13. Therefore, the Claimant is seeking the refund of the various amounts deducted from his salary throughout his employment in the total amount of AED 4,600.
The Defence with Counterclaim
14. The Defendant submits that they hired the Claimant on the assumption that he has a lot of experience and would be able to bring in new clients and ultimately increase sales and revive the business. However, the Defendant submits that instead it incurred losses as the Claimant lacked skills in social media advertising and was not performing his duties diligently as his sales were significantly less than his salary. So, he was paid more than he contributed to the company.
15. Additionally, the Defendant states that the Claimant’s work ethic was lacking as he used to show up late to work and suddenly stopped working without any warning or serving his notice period.
16. In respect of the period between 22 May 2023 and 9 June 2023, the Defendant confirms that it had a prior agreement with the Claimant via WhatsApp that this period would be treated as a ‘trial period’ and the Claimant therefore cannot claim that amount. Moreover, the Defendant adds that it already paid for the Claimant’s flight ticket back to Dubai and training costs.
17. The Defendant takes the view that the Claimant owes them money as he stopped working suddenly and did not serve his notice period which caused them to incur costs in terms of costs of public transport and hiring a third-party driver.
18. At the Hearing, the Defendant confirmed that the Claimant is entitled to the amount of AED 2,400 which comprises the amounts it had previously deducted as per the below:
(a) AED 1,500 in respect of deductions made in October, November and December 2023 salaries; and
(b) 9 working days in January 2024 in the amount of AED 900.
19. In any event, the Defendant is still counterclaiming from the Claimant the amount of USD 1,250 which comprises the notice period salary in the amount of AED 3,000 (USD 817) and the costs of hiring a third party driver and losses incurred.
Applicable law
20. This dispute is governed by the Employment Law Amendment Law DIFC Law No. 4 of 2021 (the “DIFC Employment Law”) in conjunction with the Offer Letter.
Discussion
21. Given that the Defendant confirmed its willingness, during the Hearing, to pay the Claimant the amount of AED 2,400 in respect of the deductions made in October, November and December 2023 salaries and to pay for the 9 working days in January 2024, I shall not discuss this in any further detail and order that the Defendant shall pay the Claimant the amount of AED 2,400.
22. The Claimant provided the Court with a written document that sets out the following balance as provided by the Defendant:
“Ticket: 362
PAK-DXB
Fine: 220
520
May 29-9 June: 1200 (visa)
Visa 300 balance
July: 1064
August: 1693.54
Paid: 350
Balance: 1006.04”
23. The Defendant submitted a screenshot of a WhatsApp conversation with the Claimant, dated 9 June 2023, in respect of the trial period to support its defence that the Claimant is not eligible for the remaining amounts to be paid to him:
“Defendant:
…..
Balance
Ticket: as per booking
Fine: 220 balance (200 + 20 knowledge fee)
Claimant:
Ma’am everything is fine. But the problem is I don’t have 300DHS to pay before leave the country.
I just count my money. only 120 aed left in my pocket right now. That is keep safe side for my travel.
Defendant:
I will remove it from your first month wages.
Balance:
300
200
Ticket
I’ll then send you the offer letter.
Claimant:
Accepted.”
Are the remaining deductions permissible under the Offer Letter and the DIFC Employment Law?
24. The Offer Letter does not address any deductions. Therefore, I shall rely on the provisions of the DIFC Employment Law to see whether the Defendant’s actions were in compliance with the law.
25. Article 20 of the DIFC Employment Law covers the eligibility of deductions:
“Deductions
An Employer shall not deduct from an Employee’s Remuneration or accept payment from an Employee, unless:
(a) the deduction or payment is permitted under this Law, or agreed to in an Employment Contract not in contravention of this Law;
(b) the prior written agreement of the Employee has been obtained in respect of the deduction or payment, provided that such deduction or payment is not prohibited under this Law;
(c) the deduction or payment is a reimbursement for an overpayment of any Remuneration or expenses, or to recoup benefits utilised by an Employee in excess of their accrued entitlement under their Employment Contract; or
(d) the deduction or payment has been ordered by the Court.”
26. The Claimant submits that the Defendant unlawfully deducted AED 300 in July 2023 which was the first month he joined without any legal basis to cover the visa costs.
27. At the Hearing, the Defendant confirmed that AED 362 pertains to the flight ticket and the Claimant agreed to pay for it.
28. The Claimant further submits that the Defendant deducted AED 1,900 in respect of the trial period between 22 May 2023 to 9 June 2023 to cover the visa costs.
29. Article 57 of the DIFC Employment Law reads as follows:
(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 expensesincurred pursuant to Article 57(1) from an Employee; or
(b) retainthepassport 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 residencyvisa as soon as reasonably practicablefollowing 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.”
30. The above article is clear that it is the sole duty of an employer i.e. the Defendant to pay at its own cost all the requirements which pertain to the issuance of a visa.
31. Further to paragraphs 22 and 23 above, I find that the Defendant recouped the visa costs from the Claimant which contravenes Article 57 of the DIFC Employment Law even if there was a prior agreement with the Claimant to do so as Article 20(b) stipulates that a deduction is only admissible in the event it is not prohibited by the Law, which it is in this case.
32. As a result, I find that the Defendant must pay the Claimant the amount of AED 1,500 as it is not permitted to recoup the visa costs from the Claimant.
33. Moreover, I am of the view that the Claimant should not be awarded the costs in relation to the flight ticket and the fines because the Claimant agreed to it by way of writing, as evidenced in paragraph 23 above. I have arrived at this decision in accordance with Article 20(b) of the DIFC Employment Law as there is nothing in the Offer Letter nor the DIFC Employment Law which prohibits such deductions.
34. With regards to the Defendant’s Counterclaim and on the basis that the Defendant willingly returned the Claimant’s passport on 5 February 2024 and communicated to the Claimant that it is shutting down its business, I am of the view that the Defendant cannot claim the notice period salary from the Claimant as it had returned his passport and used the final settlement amount to pay for the cancellation of the visa. Also, the Defendant failed to notify the Claimant of the proper exit procedure and whether he should be serving his notice period as the company was allegedly shutting down. In addition, the Claimant was not under the Defendant’s employment visa anymore as of the cancellation date and was therefore no longer permitted to work for the Defendant.
35. Accordingly, I find that the Defendant’s Counterclaim in respect of the notice period payment of AED 3,000 (USD 817) shall be dismissed.
36. The Defendant further counterclaims the amount of USD 433 which is essentially the alleged losses/damages it had allegedly incurred due to the Claimant’s sudden departure in January 2024 and compensation for the hurdles of having to hire a new driver, amongst other things, to avoid business disruptions.
37. The Defendant failed to provide the Court with any evidence or receipt which demonstrates the losses allegedly suffered by the Defendant due to the Claimant’s actions. Consequently, I find that this Counterclaim ought to be dismissed for lack of evidence.
Findings
38. The Defendant shall pay the Claimant the amount of AED 3,900.
39. The Defendant’s Counterclaim shall be dismissed.
40. The Defendant shall pay the Claimant the DIFC Courts’ filing fee in the amount of AED 367.25.