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You are here: BAILII >> Databases >> The Dubai International Financial Centre >> Nalani v Narciso [2024] DIFC SCT 120 (17 May 2024) URL: http://www.bailii.org/ae/cases/DIFC/2024/DSCT_120.html Cite as: [2024] DIFC SCT 120 |
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Nalani v Narciso [2024] DIFC SCT 120
May 17, 2024 SCT - JUDGMENTS AND ORDERS
Claim No. SCT 120/2024
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 OF DIFC COURTS
BEFORE H.E. JUSTICE NASSIR AL NASSERBETWEEN
NALANI
Claimant
and
NARCISO
Defendant
Hearing : 15 May 2024 Judgment : 17 May 2024 JUDGMENT OF H.E. JUSTICE NASSIR AL NASSER
UPON this Claim being filed on 19 March 2024
AND UPON a hearing having been held before H.E. Justice Nassir Al Nassir on 15 May 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 10,875.
2. The Defendant shall pay the Claimant the Court fee in the sum ofAED 367.25.
Issued by:
Hayley Norton
SCT Judge and Assistant Registrar
Date of issue: 17 May 2024
At: 2pmTHE REASONS
The Parties
1. The Claimant is Nalani (the “Claimant”), an individual filing a claim against the Defendant regarding his employment at the Defendant company.
2. The Defendant is Narciso (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 23 July 2023 (the “Employment Agreement”). The Claimant commenced employment on 1 August 2023.
4. On 19 March 2024, the Claimant filed his claim with the DIFC Courts’ Small Claims Tribunal (the “SCT”) seeking his one month notice, one month salary and 15 days of accrued but untaken vacation leave in the sum of AED 18,125.
5. On 26 March 2024, the Defendant filed its acknowledgement of service with the intention to defend all of the claim.
6. On 22 April 2024 and 2 May 2024, a consultation was held before SCT Judge Hayley Norton, 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 15 May 2024 (the “Hearing”). The Claimant and the Defendant’s representative attended.
The Claim
8. The Claimant commenced employment with the Defendant on 1 August 2023 with a monthly salary of AED 7,250. On 11 March 2024, the Claimant’s employment was terminated, and his last working day should have been on 11 April 2024.
9. The Claimant submits that upon him receiving his termination notice, the Defendant requested him not to come to work.
10. The Claimant filed a claim claiming his end of service entitlements in the sum of AED 18,125 which consists of the following:
(a) One month salary in the sum of AED 7,250;
(b) One month notice in the sum of AED 7,250; and
(c) 15 days of accrued but untaken vacation leave in the sum of AED 3,625.
11. In response, the Defendant submits that the Claimant failed to provide the Defendant with his visa cancellation from his fomer employer, which caused the Defendant to terminate the Claimant’s employment.
12. The Defendant submits that the Claimant was paid his February 2024 salary in full. In addition, the Defendant adds that the Claimant was on unpaid leave and when he came back to work on 11 March 2024, he was given his termination notice and he did not work for the period of March 2024 and 11 days of April 2024.
13. The Defendant also submits that the Claimant is not entitled to 15 days of accrued and untaken vacation leave as he was not under the sponsorship of the Defendant’s employment visa.
14. Therefore, the Defendant requests that the Claimant’s claims shall be dismissed due to the Claimant already receiving the final settlement that they believe he is owed.
Finding
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.
15 days of accrued and untaken vacation Leave
16. Clause 11 of the Employment Agreement provides that:
“under DIFC Employment Law, Article 25(1) subject to Article 28, employee will be entitled for 20 working days a year. Annual Leave shall be taken at such time or times as shall be approved in advance by the company in writing. Scheduling of leave shall be mutually agreed where practical and in line with the established company policy; in cases where agreement cannot be reached, decision of the head of department will apply.”
17. The Defendant submits that the Claimant is not entitled to his annual leave as he was not under the sponsorship of the Defendant’s visa.
18. I find that the Claimant worked for the Defendant from the period of 1 August 2023 to 11 April 2024, which was his last working day, and has received his salary each month until February 2024. Therefore, I find that the Claimant was an employee of the Defendant even though he was not under the Defendant’s visa. As such I find that the Claimant is entitled to 1.66 days of accrued vacation leave per month, which totals to 12.22 days of accrued leave for the period of 7 months and 11 days of service.
19. Article 28(3) of the DIFC Employment Law provides that:
“Compensation in lieu of Vacation Leave
(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.”
20. The Claimant’s daily wage shall be calculated as following:
AED 7,250 x 12 month/ 260 days = AED 334.61 x 12.22 days = AED 4,088.93 is the Claimant’s entitlement for accrued and untaken vacation leave. However, as the Claimant has only claimed the sum of AED 3,625, I shall only award the sum that he has claimed.
Salary and notice period
21. The Claimant claims the total sum of AED 14,500 in relation to one month salary and notice period for April and March 2024. The Defendant submits that the Claimant was on unpaid leave from 1 March 2024 to 11 March 2024 (being the day when he was called and given the termination notice).
22. The Claimant submits that he intended to work for the notice period but the Defendant had asked him not to work anymore and that his last working day would be on 11 April 2024.
23. I find that the Claimant is entitled to his one month notice period to be paid by the Defendant. However, in relation to one month salary, I find that the Claimant is not entitled to this as he received his February 2024 salary then he went on unpaid leave and placed on notice from 11 March 2024 to 11 April 2024.
24. Therefore, I dismiss the Claimant’s claim for one month salary as there is no legal basis for this claim.
Conclusion
25. In light of the aforementioned, I find that the Defendant shall pay the Claimant the total sum of AED 10,875.
26. The Defendant shall pay the Claimant the Court fee in the sum of AED 367.50.