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You are here: BAILII >> Databases >> The Dubai International Financial Centre >> Nafrin v Nahlah [2024] DIFC SCT 356 (16 October 2024) URL: http://www.bailii.org/ae/cases/DIFC/2024/DSCT_356.html Cite as: [2024] DIFC SCT 356 |
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Nafrin v Nahlah [2024] DIFC SCT 356
October 16, 2024 SCT - JUDGMENTS AND ORDERS
Claim No: SCT 356/2024
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
NAFRIN
Claimant
and
NAHLAH
Defendant
Hearing : 3 October 2024 Judgment : 16 October 2024 JUDGMENT OF SCT JUDGE MAITHA ALSHEHHI
UPON the claim having been filed on 9 August 2024 and amended on 22 August 2024 (the “Claim”)
AND UPON the Defendant’s defence dated 12 and 15 August 2024
AND UPON the Defendant’s further submissions dated 20 September 2024
AND UPON a hearing having been listed before SCT Judge Maitha AlShehhi on 3 October 2024 with the Claimant’s representative 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 Claim shall be dismissed.
2. Each party shall bear its own costs.
Issued by:
Hayley Norton
SCT Judge and Assistant Registrar
Date of issue: 16 October 2024
At: 12pmTHE REASONS
Parties
1. The Claimant is Nafrah (the “Claimant”), an employment agency registered in Dubai, the UAE.
2. The Defendant is Nahlah (the “Defendant” or “3 Fils”), a company registered in Dubai, the UAE.
The Claim
3. The parties entered into an agreement dated 20 February 2020 for the provision of recruitment services (the “Agreement”).
4. The Claimant submits that the Defendant breached the Agreement by failing to pay the invoice dated 25 June 2024 (the “Invoice”) for the agreed professional fees of AED 31,500.
5. On 10 February 2022, the Claimant submits that the Defendant shared LinkedIn profiles of possible candidates, including Naayil and requested their support in reaching out to them for the role of Operations Manager.
6. The Claimant submits that they reached out to the candidates and on 15 February 2022. Naayil submitted his CV to the Claimant and in return the Claimant submitted his application to the Defendant alongside another candidate on 16 February 2022.
7. As part of the recruitment process, Naayil was asked to submit a video of himself which he refused, and the Claimant sent the following email to the Defendant on 20 February 2022:
“Morning Naila,
Please find the submission below from Nairang
…
Naayil refused to do the video, hence we believe his application should no longer be considered.
I look forward to hearing from you.”
8. Following this, the Claimant submits that Naayil was not hired for this position at the time and the position was filled internally.
9. Once the Claimant found out that Naayil was appointed as Group Operations Manager in an associate company of Nahlah, the Claimant sent an invoice to the Defendant on 25 June 2024.
10. The Claimant states that it was surprised to find out that the Defendant failed to inform them that Naayil’s profile had been revisited and he was appointed for the role of Group Operation Manager in an associate company called “Najjar” in September 2022. The Claimant contends that his appointment came within 7 months of the introduction and as such, they are entitled to receive the introduction fee as the placement was within 12 months period in accordance with Clause 1.2 of the Agreement which reads as follows:
"For the purpose of this Agreement, "Engagement" shall include every such engagement, and shall include any use of an Applicant in the circumstances set out in clause 1.1, within 12 months of Employment Agency’s introduction of Applicant, whether directly or indirectly (for example, where an Applicant provides services through a limited company) and whether full-time or part-time, and whether under a contract of service or for services, or under an agency, licensee, franchise, commission only, partnership agreement, or otherwise."
11. The Claimant further states that the Defendant breached the Agreement by failing to notify them of the placement in accordance with Clause 4.2 of the Agreement which reads as follows:
"The Client agrees to notify the Employment Agency either verbally or in writing of the acceptance by the relevant Applicant of an Engagement together with details of the Applicant's gross remuneration (see 5.2 below),as soon as practicable following such acceptance".
12. The Claimant confirmed at the Hearing that Naayil called them after securing the role which proves that he knew that the Claimant was working with the Defendant as a recruiter.
13. The Claimant asserts that sharing LinkedIn profiles does not constitute as sharing an official CV or an introduction to a candidate as per the terms of the Agreement. The Claimant retorts that it was the one who submitted Naayil’s application to the Defendant after reaching out to him, therefore, the introduction was done by them and the ownership of the candidate belongs to them, even if he was not recruited by Nahlah, as Clause 1.1 of the Agreement extends to include associate companies of the Defendant such as the Najjar or the Nawaal in this case.
14. Clause 1.1 of the Agreement stipulates that“The parties hereby agree that this Agreement will govern every engagement by the Client, or an associated company of the Client, of every Applicant notified by the Employment Agency to the Client from time to time (“Applicant”)”.
15. Consequently, on the basis that Naayil was recruited by the Najjar within 7 months of the introduction to Nahlah, the Claimant is seeking payment of the Invoice in the amount of AED 31,500.
The Defence
16. The Defendant rejects the Claim in its entirety.
17. The Defendant denies the Claimant’s ownership of Naayil and submits that no introduction was made by them as it was the one who shared Naayil’s LinkedIn profile with the Claimant. Therefore, the Claimant did not introduce Naayil in line with the requirement in Clause 1.1 of the Agreement.
18. The Defendant submits that the Claimant failed to convince Naayil to join at the time as well as other candidates and an internal Talent Acquisition Manager was hired for that position.
19. The Defendant further submits that Naayil applied online via LinkedIn for the role of Group Operations Manager for Nawaal. As such, the Claimant failed to provide any service in respect of this placement as it was for a different company and for a different role and the Defendant managed and facilitated all interviews with Naayil following his application online.
20. The Defendant contends that although the Claimant shared Naayil’s CV after being asked to do so, they proceeded with the placement based on the online application via LinkedIn and submits that they cannot keep track of all employees and whether their CVs have been shared previously or not as the fact remains that the Claimant failed to provide any other service.
21. The Defendant relies on Clause 3.1 of the Agreement, read below, to advance its argument that the Claimant failed to meet this standard which renders the Invoice as non-payable as the Claimant failed to conduct preliminary interview or undertake reference check or any sort of service whatsoever in respect of this placement:
“The Employment Agency shall make reasonable endeavors to ensure the suitability of the relevant Applicant for the Engagement. It is the Employment’s Agency responsibility to conduct the preliminary interview of the shortlisted candidates prior to sending to the client for personal interview. Further, on short listing their profiles, the consultant will undertake the reference check in the prescribed format provided by the Client.”
22. The Defendant adds that it approached the Claimant for assistance in terms of facilitating interviews and assisting with onboarding process. However, the Claimant failed to perform this obligation, and the mere submission of a CV does not constitute a provision for recruitment services in accordance with the Agreement.
23. In respect of the position of Group Operations Manager, the Defendant confirms that the internal team sourced, screened, and shortlisted the candidates and they proceeded with Naayil’s placement based on his application online via LinkedIn and not a result of CV sharing from the Claimant.
Jurisdiction
24. The jurisdiction clause is set out in Clause 8.2 of the Agreement and is read as follows:
“Any dispute, difference, controversy or claim arising out of or in connection with this contract, including (but not limited to) any question regarding its existence, validity, interpretation, performance, discharge and applicable remedies, shall be subject to the exclusive jurisdiction of the Courts of the Dubai International Financial Centre (“the DIFC Courts”).”
25. RDC 53.2 requires that the Small Claims Tribunal (“SCT”) hear only cases that fall “within the jurisdiction of the DIFC Courts”. The jurisdiction of the DIFC Courts is determined by Article 5(A) of the JAL, which provides a number of limited gateways through which the DIFC Courts have jurisdiction over a claim, which are, as relevant:
“(1) The Court of First Instance shall have exclusive jurisdiction to hear and determine:
(a) Civil or commercial claims and actions to which the DIFC or any DIFC Body, DIFC Establishment or Licensed DIFC Establishment is a party;
(b) Civil or commercial claims and actions arising out of or relating to a contract or promised contract, whether partly or wholly concluded, finalised or performed within DIFC or will be performed or is supposed to be performed within DIFC pursuant to express or implied terms stipulated in the contract;
(c) Civil or commercial claims and actions arising out of or relating to any incident or transaction which has been wholly or partly performed within DIFC and is related to DIFC activities; . . .
(e) Any claim or action over which the Courts have jurisdiction in accordance with DIFC Laws and DIFC Regulations.
(2) The Court of First Instance may hear and determine any civil or commercial claims or actions where the parties agree in writing to file such claim or action with [the DIFC Courts] whether before or after the dispute arises, provided that such agreement is made pursuant to specific, clear and express provisions.”
26. For cases to be heard in the SCT, first, they must first fall within the DIFC Courts’ jurisdiction by engaging any of the jurisdictional gateways set out in the abovementioned Article.
27. Further to the above, the DIFC Courts have jurisdiction to hear and determine the Claim in accordance with Article 5(A)(1)(2) of the JAL on the basis that the jurisdiction clause mentioned in the Agreement is clear on the parties’ intention to resort to the DIFC Courts in case of any dispute and is the appropriate forum to hear the Claim.
Discussion
Who made the introduction?
28. The dispute between the parties pertains to the question of the ownership of the candidate, which is dependent on whether the Defendant sharing the candidate’s LinkedIn profile only is considered a valid introduction as per the Agreement.
29. The Agreement gives the Claimant the right to ask for an introduction fee within 12 months (7 months in this case) of the Claimant introducing the candidate to the Defendant and conducting the relevant onboarding process, and the fee is calculated based on the candidate’s gross remuneration.
30. The Defendant argues that their email of 10 February 2022 is clear that the ownership of the candidate belongs to them as Naayil’s LinkedIn profile was shared and is read as below:
“Dear Najma,
Sharing the link of the possible candidates for Project Manager and Operations Manager. If you can look into their profiles and share with us the details
31. The Defendant submitted evidence in the form of a screenshot from LinkedIn that Naayil did apply online for the position. However, there is no evidence before me whether the Defendant proceeded with Naayil’s application based on the Claimant’s email of 16 February 2022 or from the online advertisement from LinkedIn.
32. The burden of proof lies with the Claimant to prove to the Court that the Defendant proceeded with Naayil’s application based on the email of 16 February 2022 and not as a result of Naayil’s online application.
33. The Agreement sets out the standard of service expected from the Claimant when carrying out its recruitment services in Clause 3.1, which includes securing interviews and facilitating onboarding process such as cross reference checks and so forth. In other words, the Claimant is required to do the back-end process on behalf of the Defendant.
34. In accordance with the terms of the Agreement, I find that it extends to include any engagement with the candidate, meaning regardless of whether the candidate secured the position he applied for (for example Operations Manager) or a another position within the same company or associated company (for example Project Manager), as long as the engagement occurred by the help of the agency and the candidate is employed by the help of the agency, the position does not matter.
35. Having said that, I reject the Defendant’s argument that Naayil was employed in a different company and in a different position from what initially asked for. The fact is the Claimant would be eligible for the introduction fee in the event it made the introduction and conducted the relevant interviews.
36. In the Claimant’s email dated 5 July 2024 sent to the Defendant, the Claimant admits that no service was conducted other than submission of Naayil’s application as per the below (where relevant):
“As mentioned, where this has gone wrong is that we were not informed about Naayil’s profile being revisited, therefore we didn't have the opportunity to facilitate any process. We had initially submitted his application in February 2022 for the Operations Manager role, which he was later hired for in September 2022”
37. In light of the aforementioned, even if the Claimant sent the original CV, the fact remains that the Defendant provided the Claimant with Naayil’s profile seeking its assistance in recruiting him or the other candidates mentioned. Therefore, I am of the view that the Defendant made the introduction in line with the provisions of the Agreement.
38. Furthermore, no other services were delivered by the Claimant in respect of this candidate and the Claimant failed to provide any evidence to support its claim that Naayil was hired due to their intervention or submission of CV while the Defendant submitted evidence that Naayil applied for the new role via LinkedIn.
39. Had the Claimant interviewed Naayil for the role and facilitated his process then it can be said that they helped in the provision of recruitment services.
40. However, in this instance, given that the introduction was done by the Defendant and all onboarding services were conducted by the Defendant without the Claimant’s involvement, and due to the fact that the Claimant asked the Defendant to no longer consider Naayil’s application and no other evidence was submitted that Naayil landed the job due to the submission of the CV as opposed to the online application, I find that the Claim has no merit.
Is the Invoice payable?
41. In accordance with the Agreement, the fee is payable in respect of any engagement following the notification of the candidate for a duration of 12 months. The Agreement explains the standards of service required to be conducted by the Claimant in favour of the Defendant.
42. I find that the Agreement is clear that the Claimant must be paid the introduction fees in the event it introduced the candidate and was successful in landing him a role.
43. However, Naayil’s name was initially brought up by the Defendant and the Claimant reached out to him and was unsuccessful in conducting any interview and advised the Defendant to disregard his application by way of email dated 20 February 2022 which reads as follows:
“Morning Naila,
…….
Naayil refused to do the video, hence we believe his application should no longer be considered.
I look forward to hearing from you”
44. For the reasons set out above, I find that the Invoice is not payable, and the Claim shall be dismissed.
Findings
45. The Claim shall be dismissed
46. Each party shall bear its own costs.