Nicholas v (1) Normand (2) Norbert [2024] DIFC SCT 281 (04 October 2024)

Claim No: SCT 281/2024

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 ALSHEHHI

BETWEEN

NICHOLAS

Claimant

and

(1) NORMAND
(2) NORBERT

Defendants

Hearing :	30 September 2024 and 2 October 2024
Judgment :	3 October 2024

JUDGMENT OF SCT JUDGE MAITHA ALSHEHHI

UPON the claim having been filed on 15 July 2024 and amended on 20 August 2024 (the “Claim”)

AND UPON the Claimant’s further submissions dated 29 August 2024 and 17 September 2024

AND UPON a hearing having been listed before SCT Judge Maitha AlShehhi on 30 September 2024 with the Claimant in attendance and the Defendants failing to attend although served notice of the Claim (the “First Hearing”)

AND UPON a second hearing having been listed before SCT Judge Maitha AlShehhi on 2 October 2024 with the Claimant and the First Defendant’s representative in attendance (the “Second Hearing”)

AND UPON the Second Defendant’s representative failing to attend the First Hearing and the Second Hearing

AND PURSUANT TORule 53.61 of the Rules of the DIFC Courts (“RDC”)

AND UPON reviewing the documents and evidence filed and recorded on the Court file

IT IS HEREBY ORDERED THAT:

1. The First Defendant shall pay the Claimant the amount ofAED 10,850.

2. The Second Defendant shall pay the Claimant the amount ofAED 26,175.984.

3. The Claimant shall, by no later than4pm on 9 October 2024,provide the Court with 3 quotations reflecting a one way flight ticket to Sri Lanka.

4. The First Defendant shall pay the Claimant the DIFC Courts’ filing in the amount ofAED 367.25.

5. The Second Defendant shall pay the Claimant the DIFC Courts’ filing fee in the amount ofAED 523.519.

Issued by:
Hayley Norton
SCT Judge and Assistant Registrar
Date of issue: 4 October 2024
At: 2pm

THE REASONS

Parties

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

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

3. The Second Defendant is Norbert, (the “Second Defendant” or “Norbert”), a company registered in the DIFC, Dubai, the UAE.

4. The Defendants will collectively be referred to as the “Defendants”, except where separation is necessary.

The Claim

5. The Claimant and the Second Defendant entered into an employment contract dated 6 June 2023 (the “Employment Contract”). Pursuant to the Employment Contract, the Claimant was employed in the position of Chef De Pastry, with a monthly salary of AED 4,500.

6. The Claimant submits that he was officially employed by the Second Defendant on 7 March 2022 and continued working there until the closure of the restaurant in September 2023. Thereafter, he was asked by the owner (i.e. Mr Naif ) to relocate and to start working for the First Defendant as both places are owned by him.

7. The Claimant further submits that he was not provided with a new employment contract as the relocation was done internally.

8. The Claimant established that he worked for the First Defendant until the closure of the restaurant on 8 March 2024, and is yet to receive his pending salaries from both of the Defendants.

9. The Claimant is seeking payment in respect of his outstanding salaries in the total amount of AED 30,950 from the Defendants as per the below:

(a) AED 1,500 for April 2023, AED 4,500 each for May, June, July, and August 2023, and AED 600 for September 2023 from Norbert; and

(b) AED 3,500 for December 2023, AED 4,500 for January 2024, AED 2,250 for February 2024, and AED 600 for March 2024 from Normand.

10. The Claimant further seeks:

(a) payment in respect of his annual fair ticket in the amount of AED 3,000;

(b) gratuity payment from 7 March 2022 to March 2024 in the amount of AED 3,582;

(d) ascending charges in the amount of AED 3,000; and

(e) visa fines in the amount of AED 18,700.

The Defence

11. The Defendants failed to file a written defence to the Claim.

12. The First Defendant’s representative attended the Second Hearing and confirmed its willingness to settle the outstanding pending salaries only in respect of Normand in the amount of AED 10,850 as claimed by the Claimant.

13. The First Defendant submitted the Second Defendant’s commercial license, although expired on 9 September 2023, which shows the name of the authorised signatory to be Mr. Najeed and not Mr Naif.

14. The First Defendant rejects the Claimant’s other claims on the basis that it should be paid by Norbert as he is employed by them.

15. The First Defendant’s representative confirmed that he does not have authority to make any submissions on behalf of the Second Defendant on the basis that it is a legal entity and is not owned by the same owner.

Applicable Law

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

Discussion

17. Although the Claimant’s Employment Contract is with the Second Defendant, given that the First Defendant agreed to pay this amount at the Second Hearing, I hereby order that the First Defendant pay the Claimant the amount of AED 10,850.

18. As to the Claimant’s claim of pending salaries from Norbert, the Second Defendant failed to provide any evidence to support the Claimant’s salary slips for 2023 while the Claimant provided the Court with various payment vouchers throughout his employment which demonstrates that he has been receiving incomplete payments.

19. Article 16(c) of the DIFC Employment Law states the following:

“Payroll Records

(1) An Employer shall keep record of the following information:

20. Therefore, I shall rely on the Claimant’s submissions in relation to the pending salary amounts from April 2023 to September 2023. I find that the Claimant is entitled to receive his full salary for this period in the amount of AED 20,100 from the Second Defendant.

21. As the Claimant was still employed by Norbert, the Second Defendant must pay the full amount of AED 20,100 to the Claimant as it authorised the Claimant’s relocation to Normand which I concur to be a secondment, by virtue of which Normand agrees to settle their dues in respect of the period from December 2023 to March 2024.

22. The DIFC Employment Law is silent on an employee’s entitlement to airfare in the form of an allowance. Such a benefit is common in employment relationships, and the general practice in this Court is to proceed with what is agreed upon by the parties in the Employment Contract. Clause 4 of the Employment Contract stipulates as follows:

“4.2 Upon completion of 24 months of continuous service, you will provide with a return economy class air ticket Dubai/Home Country/Dubai for the sole purpose of your leave”

23. As a result of the above, I find that the Claimant’s claim to his airfare of an economy flight ticket is accepted. The Claimant shall provide 3 quotations of a one-way air ticket to Sri Lanka by no later than 4pm on 9 October 2024 for the Court’s consideration.

24. Payment into a qualifying scheme is encompassed in Article 66 of the DIFC Employment Law which reads as follows:

“(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. … 7 …

(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...”

25. The abovementioned clauses provide that an employer is required to pay an employee, within 14 days of the employee’s termination date, a gratuity payment, in addition to amounts equal to the core benefits set out by the DIFC Employment Law, such amounts to be paid into a Qualifying Scheme.

26. Pursuant to Article 66(7) of the DIFC Law No. 4 of 2020 Employment Law Amendment Law, as of 1 February 2020, an employer is required, on a monthly basis, to pay to an employee with a registered qualifying scheme’s account, contributions in amounts set out within the scheme.

27. The Second Defendant failed to provide evidence to demonstrate that the Claimant has been enrolled into a Qualifying Scheme. Therefore, I order that the Second Defendant pay to the Claimant the minimum benefits set out by the DIFC Employment Law, which would reflect the contributions that the Second Defendant would have paid into the qualifying scheme had it complied with the requirements of the DIFC Employment Law.

28. The Claimant’s employment duration was for 2 years. The Claimant would be entitled to contributions for the period between 7 March 2022 to 7 March 2024. This is to be calculated as follows:

Between 7 March 2022 – 7 March 2024:

The Claimant’s monthly basic wage is AED 2,520 x 5.83% (being the minimum contribution amount defined by the Employment Law) = AED 146.916 per month x 24 months = AED 3,525.984.

29. Therefore, in accordance with the above, the Claimant’s entitlement in regard to contributions that should have been made by the Second Defendant to a qualifying scheme is AED 3,525.984.

30. The Claimant failed to file any evidence in respect of his claim of incurring visa fines, therefore, I shall dismiss this claim for lack of evidence.

31. The Claimant also filed to file any evidence in respect of his claim of ascending charges in the amount of AED 3,000, as such, I shall dismiss this claim for lack of evidence.

32. In respect of the Claimant’s claim for repayment of extension of visa costs, I shall grant this in the amount of AED 2,550 in accordance with the evidence submitted which demonstrates that the Claimant made payment of AED 1,250 and AED 1,300. Therefore, I hereby order the Second Defendant to pay the Claimant the amount of AED 2,550.

33. As Norbert and Normand are two separate legal entities, and the Claimant signed the Employment Contract with Norbert, I am of the view that the Second Defendant is liable to pay the Claimant as the obligation of payment remains with it apart from the Claimant’s salary from December 2023 to March 2024, which must be paid by the First Defendant as it is clear that the Claimant was seconded to work for Normand.

Findings

34. The First Defendant shall pay the Claimant the amount of AED 10,850 in respect of the pending salaries from December 2023 to March 2024.

35. The Second Defendant shall pay the Claimant the total amount of AED 26,175.984.

36. The Claimant shall, by no later than 4pm on 9 October 2024, provide the Court with 3 quotations reflecting a one way flight ticket to Sri Lanka.

37. The First Defendant shall pay the Claimant the DIFC Courts’ filing fee in the amount of AED 367.25.

38. The Second Defendant shall pay the Claimant the DIFC Courts’ filing fee proportionate to the judgment sum in the amount of AED 523.519.

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You are here: BAILII >> Databases >> The Dubai International Financial Centre >> Nicholas v (1) Normand (2) Norbert [2024] DIFC SCT 281 (04 October 2024) URL: http://www.bailii.org/ae/cases/DIFC/2024/DSCT_281.html Cite as: [2024] DIFC SCT 281

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Nicholas v (1) Normand (2) Norbert [2024] DIFC SCT 281