Niya v Nitin [2024] DIFC SCT 241 (09 August 2024)

Claim No: SCT 241/2024

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

BETWEEN

NIYA

Claimant/Defendant in Counterclaim

and

NITIN

Defendant/Claimant in Counterclaim

Hearing :	29 July 2024
Judgment :	9 August 2024

JUDGMENT OF SCT JUDGE MAITHA ALSHEHHI

UPON the claim having been filed on 14 June 2024 (the “Claim”)

AND UPON the Defendant filing case no. SCT-275-2024 on 9 July 2024 as a counterclaim (the “Counterclaim”)

AND UPON the Order of SCT Judge Delvin Sumo dated 9 July 2024 consolidating case no. SCT-241-2024 and SCT-275-2024 and making SCT-241-2024 the leading case

AND UPON the Claimant’s reply to the Counterclaim dated 12 and 16 July 2024

AND UPON the Defendant’s witness statements dated 25 July 2024

AND UPON the Claimant’s reply dated 25 July 2024

AND UPON a hearing held before SCT Judge Maitha AlShehhi on 29 July 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

AND PURSUANT TOPart 53 of the Rules of the DIFC Courts (the “RDC”)

IT IS HEREBY ORDERED THAT:

1. The Claimant’s claim in respect of payment in lieu of notice period shall be dismissed.

2. The Claimant’s claim in respect of cancellation of visa and lifting of absconding case shall be granted and the Defendant shall proceed to cancel the Claimant’s employment visa and lift the absconding case imposed on the Claimant immediately.

3. The Counterclaim is dismissed in its entirety.

4. The Defendant shall pay the Claimant the DIFC Courts filing fee in the amount to AED 367.25.

Issued by:
Delvin Sumo
SCT Judge and Assistant Registrar
Date of issue: 9 August 2024
At: 10am

THE REASONS

Parties

1. The Claimant is Niya (the “Claimant”), an individual filing a claim against her former employer.

2. The Defendant is Nitin (the “Defendant”), a company registered in the DIFC, Dubai, the UAE.

The Claim

3. On 1 May 2024, the Claimant commenced employment in the position of Sales Representative under the Defendant, subject to the terms of an Employment Agreement. The Claimant asserts that she did not have the opportunity to read the Employment Agreement thoroughly and in detail as she signed in on a mobile device with a member of staff present with her.

4. The Claimant submits that the Defendant did not provide her with the signed Employment Agreement until she submitted her resignation by way of email on 5 June 2024.The reason for doing so is because she was offered another exciting job opportunity that she had been waiting for.

5. Before officially submitting her resignation, the Claimant submits that the HR department (through Ms Nisa) informed her that she might be able to resign with immediate effect, however, she would still be liable to pay the training fee of AED 20,000. The Claimant was informed that the fee that could be reduced to AED 14,000 pending management approval.

6. The Claimant submits that as soon as she submitted her resignation, she felt neglected in the office as it was obvious that the employees were told not to speak to her anymore. In addition, the Claimant submits that the Defendant moved her to a different department which impacted her negatively as this meant losing commission on the calls already scheduled for her in her diary.

7. As a result of the hostile office environment, and due to the lack of communication, the Claimant argues that she felt the urge to cry and wanted to exit the office. On her way out to the elevators, Ms Nisa followed her and allegedly told her not to bother coming back, as if she enters the elevator an absconding case will be filed against her. The Claimant responded “I had no intention of leaving this office, I love this office”. The Claimant further submits that Ms Nisa was shouting at her in front of all the employees and accused her of using them to obtain a visa. Thereafter, the Claimant adds that she proceeded to enter the elevator as she wanted to deescalate the situation and submits that she went to the supermarket downstairs but never left the building.

8. Following this incident and within the next 10 minutes, the Claimant shows that she received an email from the CEO (Mr Nathan) informing her that an absconding case was filed against her. The Defendant provided the same email thread in their evidence, and so the date and timestamps of the chronology are not contested.

9. The Claimant asserts that she tried to negotiate and reason with the Defendant company to exit peacefully, however, this was unsuccessful. The Claimant further asserts that she asked the Defendant via email to provide her with the invoice for the alleged training, but the Defendant failed to comply with this request.

10. The Claimant confirms that she did not return to the office following the incident as she did not feel comfortable in doing so as the situation caused her embarrassment. Additionally, she adds that she did not return as an absconding case was filed against her.

11. The Claimant advances her position by asserting that the absconding case is invalidly filed as her actions did not satisfy the conditions of an absconding employee; the form was filed immediately, the Defendant knew of her whereabouts at all material times, and she did not exit the UAE.

12. The Claimant states that she was surprised that the Defendant is now counterclaiming the amount of AED 35,000 for training as opposed to the initial figure of AED 20,000. The Claimant submits that she never had formal training to the value of this amount, nor was the alleged training conducted by qualified trainers.

13. Regardless, the Claimant takes the view that this figure was not mentioned in the Employment Agreement as the relevant clause only mentions “training costs”, and the figure was not otherwise agreed in writing

14. In terms of training, the Claimant confirms receipt of the CRM Manual (with no proper training on how to navigate it) and confirms listening to calls for training, which was done by her, otherwise, no other kind of external training was offered to her which would amount to AED 35,000 as valued by the Defendant. The Claimant submits that letting her sit next to another employee does not constitute training.

15. The Claimant adds that the Defendant never shared a copy of the invoice despite requesting it by way of email on 5 June 2024 which reads as follows:

“Hi Nathan

I am sad to inform you I’ll be resigning from Nitin.

I’ve been made aware that there is some outstanding fees I have to pay, would it be possible to receive receipts/invoices of this please?

Also, during probation what is the notice period please?

Nisa did mention a couple of weeks ago I could leave with immediate affect but I’ve just overlooked my contract and it mentioned 30 days.

I look forward to hearing back from you.” [emphasis added]

16. Therefore, the Claimant is seeking her end of service entitlements following her resignation in the amount of AED 10,000 which represents payment of 5 days in June 2024 and payment in lieu of one month notice period. Moreover, she seeks cancellation of her employment visa and lifting of the abscondment case filed against her.

The Defence and Counterclaim

17. The Defendant rejects the Claimant’s claim for payment in lieu of notice period on the basis that the Claimant failed to serve her notice period and never came back to the office following the incident of 6 June 2024.

18. Further to the Hearing, the Defendant paid the Claimant the amount of AED 1,600 in respect of the 6 days worked in June 2024, to which the Claimant accepted and confirmed receipt by way of email to the SCT Registry. As such, this shall not be discussed further in the Judgment.

19. The Defendant submits that due to the Claimant’s resignation within her probationary period (i.e. less than six months), she is liable to pay them the training costs in accordance with Article 17 of the Employment Agreement.

20. Article 17 of the Employment Agreement reads as follows:

“17.1 From time to time, the Company may pay for the Employee to attend practical on the job training (and for which an invoice from the Company Group headquarters to the Company which will be signed by the Company and the training provider as evidence of the training and which shall be available for the Employee's review upon their request). In consideration of this, the Employee agrees that if they resign from the Employment within two years of the Commencement Date, the Employee agrees that they will be liable to repay to the Company the costs that the Company has incurred associated with such training (“Costs”) in accordance with clause 16.2 below.”

17.2 Except in the circumstances set out in Clause 16.3, the Employee shall repay to the Company:

17.2.1 100% of the Costs if the Employee resigns and the Termination Date is within 12 months of the Commencement Date;

17.2.2 75% of the Costs if the Employee resigns and the Termination Date is within 18 months of the Commencement Date; and,

17.2.3 25% of the Costs if the Employee resigns and the Termination Date is within 24 months of the Commencement Date,

thereafter, no repayment shall be required.”

21. The Defendant submits that they were invoiced by the group headquarter company in the amount of AED 35,000 plus VAT for training costs associated with training the Claimant (the “Training Invoice”).

22. The Defendant illustrates that topics of training included how to access CRM portal, make calls and navigate the portal as it is not easy to do so especially if someone does not have a sales background. The training also included providing the Claimant with a checklist that contains 19 items that need to be checked/discussed before a meeting with a potential client.

23. Given that the Claimant did not have any sales background prior to joining, the Defendant further asserts that training further included topics such an introduction to public relation industry on the basis that the Claimant’s role revolved around meeting with international potential clients remotely and asking them and selling an idea to invest an amount of not less than USD 50K.

24. The Defendant submitted signed witness statement of Narva dated 19 July 2024 stating that he delivered training to the Claimant from 6 May 2024 to 24 May 2024 and from 3 June 2024 to 6 June 2024 (“WS of Narva”). Another signed witness statement was submitted of Nina dated 19 July 2024 stating that she delivered training to the Claimant for the period from 8 April 2024 to 3 May 2024 and from 27 May 2024 31 May 2024 (“WS of Nina”).

25. Further to the above, the Defendant contends that the Claimant is liable to pay the Training Invoice, which they paid as it was invoiced to them by the group headquarter company.

26. The Defendant denies that he moved the Claimant from the sales department and submits that she remained in the same department but at a different desk.

27. The Defendant argues that due to the incident with the Claimant and her sudden departure from the office, he sought the advice of the relevant authorities and proceeded to file the absconding case which was registered and accepted.

28. Pursuant to Article 7.1 of the Employment Agreement, the Defendant is also requesting the Claimant to indemnify them and repay the costs incurred for filing the case in the amount of AED 4,061 (“Abscondment Fee”) which read as follows:

“7.1 Liability for taxation both in the UAE and in the Employee's home country (if any) will be the Employee's sole responsibility and expense. The Employee agrees to indemnify the Company for any tax liability, losses, fines, damages, costs and expenses (including legal costs) suffered by the Company (including where the Employee breaches any rule under which the Employee may be entitled to relief from taxation) which may be found to be due from the Company under this Contract together with any connected interest, penalties or charges incurred by the Company.”

Applicable Law

29. This dispute is governed by DIFC Employment Law No. 4 of 2021 (the “DIFC Employment Law”) in conjunction with the Employment Agreement.

Discussion

30. On 25 July 2024, the Defendant filed a Request to Produce form asking the Claimant to produce an employment agreement she allegedly has with a different employer on the basis that her LinkedIn profile has been updated to reflect the new employment status. This has been briefly discussed at the Hearing and the Claimant confirmed that she was not employed and did not feel comfortable in engaging in any further discussion with the Defendant in respect of this topic.

31. On 6 August 2024, the Defendant filed a Witness Summons form to ask the CEO of the Claimant’s alleged new employer to clarify the Claimant’s relationship with his company, to which the Claimant again confirmed was not true and that she is not currently working for any other employer.

32. The subject matter of the Defendant’s Counterclaim pertains to the repayment of the Training Invoice and Abscondment Fee and has no relevance on the Claimant’s new employment status. Therefore, the Defendant is not permitted to make those requests which were also made after the close of submissions; this is not permitted. The Defendant was given ample opportunity to submit all their relevant evidence by the closing date.

33. In any event, the SCT does not have jurisdiction to deal with the production of documents (outlined in Part 28 RDC) and witnesses and depositions (outlined in RDC Part 30) in accordance with RDC 53.7 which sets out the extent of which other parts of the RDC apply to the SCT and stipulates that Parts 28 and 30 do not. Accordingly, the requests are dismissed.

Is the Claimant entitled to receive payment in lieu of notice period?

34. The Claimant submits that she is entitled to receive payment in lieu of one month notice period regardless of whether she worked during this period as it is her right under the Employment Agreement, and she was justified in not attending as she felt embarrassed and an abscondment case was already lodged.

35. The Defendant rejects this claim as the Claimant has absconded and did not perform any work during that period.

36. As the Claimant’s last working day was 6 June 2024, and the Claimant failed to carry out her duties as normal during the notice period without the consent of the Defendant pursuant to Article 62(5) of DIFC Employment Law No. 2 of 2019, I find that the Claimant is not entitled to her payment in lieu of the notice period. I dismiss this claim henceforth.

Was the absconding case legitimate?

37. The abscondment procedure is used in relation to violations of the UAE’s immigration laws, which can only be solved by Government Services in the DIFC.

38. The Claimant contends that the absconding case was filed by the Defendant within 10 minutes after she left the office, which was not justified as she only left to deescalate the heated situation and had every intention of coming back. Also, the Defendant knew the Claimant was still in the building and had not left Dubai and therefore submits that the absconding case was filed inappropriately.

39. The Claimant further contends that the Defendant is only eligible to file an absconding case if she was absent and uncommunicable for 7 days or more, which was not the case here. In response, the Defendant confirmed during the Hearing that they contacted the Government Services and secured the approval.

40. I took the initiative to look at the DIFC website and found the Government Services Client Handbook and Fees – Employee Services 2024 (the “Manual”) which sets out the absconding procedure to be as follows:

“6. Request to Abscond an Employee–

This service request allows you to declare an absent employee as an absconder. Company cannot declare an employee as an absconder if he/she is out of UAE. Reporting the employee as an absconder is subject for the verification of DIFC GSO.

Application Process

Log on to the portal and select the service ‘Request to Abscond Employee’ under Employee Services. Select the employee from the search option, fill the required information and submit after uploading required documents.
An e-mail and SMS notification from DIFC Government Services Office will be sent once the absconding report is ready to be downloaded from the client portal.”

41. Whether an employee is an absconder can only be determined by the DIFC Government Services. Confirmation of an absconding status is made through a report, sent to the employer via the client portal. The Defendant failed to submit this report, although directed to do so on 7 August 2024, and relied on the receipt of payment for the service as evidence of the Claimant absconding.

42. The Defendant responded to the Court’s direction on 7 August 2024 by saying“we suggest it would be more efficient to obtain this from DIFC Authority. We of course do not object to this.”I will remind the Defendant at this stage that it is not the role and responsibility of the Court to scavenge for evidence. It is the responsibility of the parties to produce evidence requested.

43. I find the Defendant’s reluctance in filing the absconding report to be strangely evasive given that they are claiming repayment of the invoice pursuant to clause 7.2.2 of the Employment contract which requires an actual breach of duty to recover fees paid

44. The Defendant holds the burden of proof in their counterclaim to show that there has been a breach of duty that would award them a reimbursement of the fee, and if the Claimant has been proven to be an absconder, then there should be no issue in sharing the report with the Court.

45. If the Defendant sought to mislead the Court by presenting the receipt as evidence of the employee being confirmed as an absconder, this could amount to contempt of court pursuant to RDC 29.137. If the Defendant filed the absconding case while not being legitimately concerned regarding the immigration or employment status of the employee, then this may amount to an abuse of process.

46. Due to the Defendant’s failure to submit the absconding report and failure to prove to the Court that the Claimant absconded, I find that the Claimant is not liable to pay the Abscondment Fee.

47. In the alternative, and although the Manual is silent on a timeframe as to how long the employee should be away for to be declared as an absconder, the Court can take into consideration the UAE Law as confirmed by H.E Deputy Chief Justice Ali Al Madhani in CFI-055-2020 at paragraph 24 of the Order dated 27 September 2023;

“the scope of matters in which the DIFC Court can assess and determine is not only limited to disputes arising out of DIFC rules and regulations, but it also extends to other non-DIFC rules and regulations”

48. Article 28 of the Cabinet Resolution No. (1) Of 2022 on the Implementation Of Federal Decree-Law No. (33) Of 2021 Regarding The Regulation Of Labour Relation reads as follows, where relevant:

“Rules for Reporting Unexpected Work Abandonment Subject to the provisions of Article (50) of the Decree-Law:

1. The employer shall notify the Ministry of the worker’s unexpected work abandonment pursuant to the following rules and procedures:

a. The absence from work shall have exceeded 7 consecutive days, without the employer’s knowledge of the worker’s location or the possibility of communicating with him.”

49. As the filing of the absconding report came within minutes from the Claimant’s departure from the office, the Claimant did not have the chance to abscond; at the material time of the report being filed, she was still in the office and in communication with the Defendant.

50. Therefore, the absconding is not deemed legitimate, and the Claimant shall not be liable for any payment. In either determination, Defendant’s Counterclaim is dismissed.

51. Finally, pursuant to Article 57(3) of the DIFC Employment Law No. 6 of 2019, the Defendant is obligated to cancel the Claimant’s visa within 30 days of her termination date. 30 days have now lapsed, irrespective of whether the one month notice period is included, and so the Defendant is ordered to cancel the Claimant’s visa.

52. For the reasons set out above, I find that the Defendant shall proceed to withdraw or lift, depending on which direction is relevant, the absconding case imposed on the Claimant and cancel the Claimant’s employment visa immediately.

Is the Claimant eligible to repay the Defendant the training costs and other costs?

53. The Defendant is Counterclaiming from the Claimant the amount of AED 35,000 for training costs in accordance with clause 17.1 of the Employment Agreement. The clause states that an employee must pay 100% of the training costs if the employee resigns within 12 months of the commencement day.

54. The Claimant rejects this on the basis that that no proper training was conducted, and she was never provided with the Training Invoice despite her request on 5 June 2024.

55. I must note that the Training Invoice was not admitted into evidence; another seemingly evasive manoeuvre from the Defendant which is odd as the invoice provides the core evidence for the Counterclaim. Despite this, I directed the Defendant to submit it following the conclusion of the Hearing.

56. After receipt of the Training Invoice, the Claimant sent the following email to the Court:

“Hi Sirs,

I believe the invoice that Mr Nathan has attached may have been created after the call when he was asked to show evidence and isn't actually from the Nitin.

I've just created the exact same invoice and found the exact same template on Microsoft Word.

I have attached the template and the one I created to this email.”

57. The Defendant did not respond to the Claimant’s above email. I am not convinced of the legitimacy of the invoice as there was no reason why it could not be produced before the Hearing.

58. Even if Article 17 of the Employment Agreement gives the Defendant the right to ask the Claimant to repay the amount, it also mentions that the company“may”pay for the employee to attend training, this means that it is not mandatory to invoice an employee upon resignation within 12 months as it is important to establish whether that employee was subject to proper training during that period or not.

59. Taking into consideration the witness statements submitted by the Defendant, it appears that the WS of Nina includes periods of (8 April to 3 May 2024) where the Claimant was not an official employee as her commencement date was 1 May 2024, therefore, I find that this period should not be part of the official training. Additionally, the WS of Narva includes the date of 6 June 2024 which is the Claimant’s last working day and the day of the incident, and the Defendant confirmed at the Hearing that the Claimant was asked to move from her desk. Therefore, it is not realistic that the Defendant would conduct any kind of training after the Claimant’s resignation.

60. I am also of the opinion that training must be conducted by external trainers for it to be recouped in favour of the Defendant, with the training amount communicated to the employee for the sake of transparency, and the invoice being signed by the external trainer, employer and employee

61. Moreover, clause 17 also mentions that the invoice which should be generated from the group headquarters company“will be signed by the Company and the training provider asevidenceof the training and which shall be available for the Employee's review upon their request”.

62. Having reviewed the Training Invoice, it appears that it is neither signed by the Defendant nor the training provider. Therefore, there is no evidence of the training.

63. While the Defendant did submit two signed witness statements to support the “internal” training as discussed above, the fact remains that a crucial component of the eligibility of the Training Invoice to be paid and admitted as evidence is missing in accordance with the terms of the Employment Agreement itself, which are the signatures on the Training Invoices from both company and training providers.

64. I requested the Defendant to provide evidence of payment of the Training Invoice to the group headquarters company following the Hearing, however, the Defendant failed to submit proof of payment of the Training Invoice. The Defendant complied with the other directions and sent by way of email to the SCT Registry the Training Invoice, proof of payment of the 6 days worked in June to the Claimant, and receipt of the absconding case dated 6 June 2024 from the DIFC Government Services.

65. Additionally, the Defendant failed to share the Training Invoice with the Claimant following her request on 5 June 2024, and in accordance with clause 17, it should have been made available to the Claimant upon her request.

66. Further to the above and although the Claimant resigned within her probationary period, I am of the view that clause 17.1 is not enforceable in this case as the Training Invoice is neither signed by the company nor the training providers as required by the Employment Agreement. Nor did the Claimant sign any sort of declaration of receiving such training. As such, there is no evidence of completion of training. The conditions in clause 17 have not been met to make the Defendant eligible for reimbursement.

67. For the above cited reasons, I find that the Defendant’s Counterclaim in respect of payment of the Training Invoice shall be dismissed.

68. The Defendant further Counterclaims the amount of AED 4,061 as costs for filing the absconding case to which the Claimant rejects on the basis that the filing was not justified.

69. The Defendant relies on Article 7 of the Employment Agreement which states that the employee must indemnify the employer for any losses, fines or damages and is read as below:

“DEDUCTIONS AND TAXES

7.1 Liability for taxation both in the UAE and in the Employee's home country (if any) will be the Employee's sole responsibility and expense. The Employee agrees to indemnify the Company for any tax liability, losses, fines, damages, costs and expenses (including legal costs) suffered by the Company (including where the Employee breaches any rule under which the Employee may be entitled to relief from taxation) which may be found to be due from the Company under this Contract together with any connected interest, penalties or charges incurred by the Company.

7.2 The Employee authorises the Company to deduct from his salary and/or any other sums due under this Contract:

7.2.1 any tax and/or social security contributions that the Company is required to deduct by law as required from time to time; and

7.2.2 any other sums due from the Employee to the Company, including, without limitation, any overpayments, loans or advances made to the Employee by the Company, the cost of repairing any damage or loss to the Company's property caused by the Employee and any losses suffered by the Company as a result of the Employee's negligence or breach of duty.”

70. As discussed in clauses 35 to 50 of this Judgement, I do not find the absconding case to be legitimate. As mentioned, there are two reasons for this; first, the Defendant failed to provide the report confirming that the Claimant is an absconder as per the direction of the DIFC authority; second, the Claimant’s actions do not satisfy the requirements for an employee to be considered an absconder. Therefore, there is no “breach of duty”, and the Defendant cannot recover the cost of the application.

71. This Counterclaim is dismissed.

Findings

72. The Claimant’s claim in respect of payment in lieu of notice period shall be dismissed.

73. The Claimant’s claim in respect of cancellation of visa and lifting of absconding case shall be granted and the Defendant shall proceed to cancel the Claimant’s employment visa and lift the absconding case imposed on the Claimant immediately.

74. The Defendant’s Counterclaims shall be dismissed entirely.

75. The Defendant shall pay the Claimant the DIFC Courts filing fee in the amount to AED 367.25.

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Niya v Nitin [2024] DIFC SCT 241