Naufil v Nawaz [2024] DIFC SCT 288 (19 August 2024)

Claim No. SCT 288/2024

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

BETWEEN

NAUFIL

Claimant

and

NAWAZ

Defendant

Hearing :	14 August 2024
Judgment :	19 August 2024

JUDGMENT OF H.E. JUSTICE MAHA AL MHEIRI

UPON this Claim being filed on 16 July 2024

AND UPON a hearing held before H.E. Justice Maha Al Mheiri on 14 August 2024, with the Claimant and the Defendant’s representative attending

AND UPON reading the submissions and evidence filed and recorded on the Court file

IT IS HEREBY ORDERED THAT:

1. The Claimant shall pay the Defendant the amount of AED 750.

2. The Claimant shall pay the Defendant the Court fee in the sum of AED 367.50.

Issued by: Delvin Sumo SCT Judge and Assistant Registrar Date of Issue: 19 August 2024 At: 11am

THE REASONS

The Parties

1. The Claimant is Naufil (the “Claimant”), an individual filing a claim regarding her employment at the Defendant company.

2. The Defendant is Nawaz, a restaurant located at DIFC, Dubai, UAE (the “Defendant”).

Background and the Preceding History

3. The underlying dispute arises over the employment contract dated 13 October 2023 between the parties (the “Employment Contract”).

4. Prior to the Claimant joining the Defendant, the Claimant was working for another restaurant which she resigned from and had 1 month to stay in the Country before incurring overstay fines.

5. On 20 October 2023, the Claimant already incurred 98 days overstay. The Defendant questioned how these fines were going to be cleared, as was required to proceed with her employment visa. She replied that she needed an offer letter from the Defendant to present it to government services to reduce her overstay fines. The Claimant took 2 months to negotiate a reduction of fines, which was rejected by government services.

6. On 29 December 2023, the Defendant started the process of change of status for the Claimant to apply for a work visa under the Defendant. The Defendant paid the overstay fines to the amount of AED 8,650 on behalf of the Claimant to process the work visa, which the Defendant expected the Claimant to return.

7. Pursuant to her Employment Contract, the Claimant was employed as a Bartender with a monthly salary of AED 4,000, and her first working day was 17 October 2021.

8. During her employment period she was presented with verbal warnings and 2 warning letters dated 7 March 2024, 20 April 2024. On 9 June 2024, the Claimant received a termination letter from the Defendant informing the Claimant that she is terminated with 30 days notice.

“After several occasion and chances given to you for bad behaviour towards guests as well also staff members. We decided to terminate you with 30 days' notice period as your attitude didn't change.

We also received complain against you in the accommodation from your room mates, accusing you of stealing food and personal belongings.

We also have a strong suspicion of you stealing money from another male colleague from his apartment as you were the last person to be seen in the apartment.”

9. On 16 July 2024, the Claimant filed a claim in the DIFC Courts’ Small Claims Tribunal (the “SCT”) claiming the following claims:

(a) AED 8,000 for the payment of May and June Salary

(b) AED 1,049.40 for the Claimant’s End of Service gratuity

(d) Unpaid annual leave

(e) AED 2,000 airfare to Indonesia

(f) Service charge

(g) AED 9,000 as reimbursement for the overstay fines on the Claimant’s visa

(h) Article 19 penalty in accordance with the DIFC Law No. 2 of 2019

10. On 19 July 2021, the Defendant filed an Acknowledgment of Service and Counterclaim requesting that the Claimant’s claim pay the Defendant the amount of AED 5,950 for the overstay fines paid to government services.

11. The parties met for a Consultation with SCT Judge Maitha AlShehhi on 30 July 2024 but were unable to reach a settlement. In line with the rules and procedures of the SCT, this matter was referred to me for determination, pursuant to a Hearing held on 14 August 2024.

12. On 16 July 2024, the Defendant paid the Claimant her May salary and her end of service was paid through the DEWS. The Defendant also stated in the hearing that they are withholding the Claimant’s 9 days of salary the Claimant worked in June and the 15 days of annual holiday and 4 days of Public Holiday.

Discussion

13. This dispute is governed by DIFC Employment Law No. 2 of 2019 (the “DIFC Employment Law”) in conjunction with the relevant Employment Contract.

“These terms and conditions and your employment by the Company shall be governed by and construed in accordance with the DIFC Employment Law. Any disputes arising in relation to or in connection with your employment with the Company shall be referred to the DIFC Courts.”

14. In reviewing the case file, I will first determine the Claimant’s last working day, and then discuss the Claimant’s entitlements.

15. According to the Defendant the Claimant’s last working day is 9 June 2024, and she was communicated that she serves her notice period from her pending annual leave, which according to the Defendant is 24 June 2024.

16. After review of the parties’ submissions, the Claimant was served with her termination letter on 9 June 2024. In the letter the Defendant offered the Claimant 30 days’ notice, which the Defendant withdrew as the Claimant was terminated for cause and is not entitled to notice according to her Employment Contract and DIFC Law.

17. The Court does agree with the Defendant that the Claimant is not entitled to any notice due her termination for cause, but the Defendant did communicate in the Claimant’s termination letter that she will be offered 30 days of notice period, which the Court shall consider an amendment to what was initially agreed in the Employment Contract as both parties consented to the amendment.

18. In light of this, I have determined that the Claimant last working day is 9 July 2024, and she is entitled to receive her pending salary from 1 June 2024 to 9 July 2024 in the amount of AED 5,200.

Payment in lieu of untaken annual leave

19. The Defendant submits that the Claimant has accrued 15 days of annual leave and 4 days of public holiday, and also requested that the Claimant avails her annual leave in her notice period.

20. According to her Employment Contract the Claimant is entitled to 20 days of annual leave, as determined above the Claimant’s last working day is 9 July 2024.

21. The accrual of annual leave is carried out gradually throughout the year, and that upon the termination of an employment relationship, any amounts owed would be pro-rated against the amount of time passed during the course of that year. The Claimant has availed 14.68 annual leave from 17 October 2023 to 9 July 2024 in addition to the 4 days public holiday, in total the Claimant is entitled to 18.68 days.

22. The Defendant has requested that the Claimant avail all her pending days in her notice period which was already included when calculating the Claimant’s last working day.

Airfare for the Claimant

23. The Claimant seeks airfare to her home country, Indonesia. The Claimant is requesting the amount of AED 2,000 pursuant to her Employment Contract, which reads as follows:

“Under DIFC Employment Law, the Employee shall be entitled to a one-way Economy class air ticket for himself/herself from Dubai to Indonesia, on termination, subject to leaving the country at that time after visa cancellation. If the termination is attributable to the Employee (for example through resignation prior to the completion of 24 months of service with the Company or due to cause), the Company reserves the right to recover the repatriation cost from the Employee.”

24. The Defendant does not oppose to this Claim but argues that according to the Employment Contract the Claimant needs to leave the country and not be paid a monetary amount. The Claimant is refusing to leave the country and wishes for the amount to be paid to her in cash.

25. The Court does agree with the Defendant; the airfare clause in the Employment Contract does contain a condition of the employee leaving the country which the Claimant does not want to meet. As such the Claimant’s claim for the amount of AED 2,000 for airfare is dismissed.

Service Charge

26. Upon review of the Employment Contract, I find it clear that the Claimant has no contractual entitlement to be paid the service charge, as such the Claimant’s claims are dismissed.

Visa Costs in the amount of AED 9,000

27. The Claimant is requesting to be paid the amount of AED 9,000 for the visa cost that the Defendant deducted from her monthly salary.

28. In reply the Defendant argues that the Claimant did not pay for her visa, the Defendant paid for all visa expenses. The Defendant is requesting that the Claimant repay the amount that the Defendant paid in relation to her overstay.

29. The Defendant paid on behalf of the Claimant the amount of AED 8,650 which the Claimant repaid AED 2,700 only of the pending amount, according to the Defendant’s records the Claimant must repay the amount of AED 5,950.

30. Pursuant to Article 21 of the DIFC Employment Law:

“21. Recruitment costs

(1) An Employer shall not request, charge or receive, directly or indirectly, from a person seeking employment, a payment for:

(a) employing or obtaining employment for the person seeking employment; or

(b) providing information about Employers seeking Employees.

(2) Subject to Article 21(3), an Employer is not permitted to recoup from an Employee any costs or expenses incurred by the Employer in the course of recruiting the Employee.

(3) If an Employee terminates their Employment Contract for any reason other than termination for cause under Article 63, and their Termination Date falls within a period of six (6) months from the Employee's date of commencement of employment, the Employer may, subject to Article 57(2), recoup from the Employee such reasonable costs or expenses which:

(a) were directly incurred by the Employer in the course of recruiting the Employee;

(b) are supported by proof of expenditure provided by the Employer to the Employee; and

(4) A payment received by an Employer in contravention of this Article at the expense of an Employee is deemed to be a debt due to that Employee equal to the amount charged to the Employee.”

31. The Court does acknowledge the law in relation to visa, but the Claimant is not entitled to claim the fees that the Defendant paid for overstay and the Defendant is entitled to claim the full amount paid for the overstay from the Claimant.

Article 19 penalty in accordance with the DIFC Employment Law

32. 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 Claimant’s last working day.

33. The Defendant denies this claim and submits that the Claimant’s owes the Defendant for her overstay paid by the Defendant.

34. Article 19 of the DIFC Employment Law stipulates as follows:

(1) 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.

(2) 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).

(3) 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.

(4) 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.

35. 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).

36. In review of the Court file, it appears that the Claimant filed her claim on 16 July 2024, ahead of the 14 days.

37. In addition to the determination the Court has made above that the Claimant has filed her case on the presumption that the Defendant would not provide her dues, 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 not entitled to a penalty pursuant to Article 19 of the DIFC Employment law, and so I dismiss this claim accordingly.

Counterclaim

38. The Defendant is requesting the amount of AED 5,950 for the overstay paid on behalf of the Claimant.

39. As stated in paragraph 26 above, the Defendant is entitled to Claim back the amount paid in relation to the overstay, in light of this, I have determined the Claimant pay the Claimant the remainder of the amount paid for the overstay in the amount of AED 5,950.

Conclusion

40. In light of the aforementioned, I find that the Defendant shall pay the Claimant the sum of AED 5,200.

41. The Claimant shall pay the Defendant the amount of AED 5,950.

42. My Order shall reflect the difference in payments only, to initiate a unilateral transaction.

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You are here: BAILII >> Databases >> The Dubai International Financial Centre >> Naufil v Nawaz [2024] DIFC SCT 288 (19 August 2024) URL: http://www.bailii.org/ae/cases/DIFC/2024/DSCT_288.html Cite as: [2024] DIFC SCT 288

The Dubai International Financial Centre

Naufil v Nawaz [2024] DIFC SCT 288