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You are here: BAILII >> Databases >> The Dubai International Financial Centre >> Neve v Nellie [2024] DIFC SCT 443 (16 January 2024) URL: http://www.bailii.org/ae/cases/DIFC/2024/DSCT_443.html Cite as: [2024] DIFC SCT 443 |
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Neve v Nellie [2023] DIFC SCT 443
January 16, 2024 SCT - JUDGMENTS AND ORDERS
Claim No: SCT 443/2023
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
NEVE
Claimant
and
NELLIE
Defendant
Hearing : 8 January 2024 Judgment : 16 January 2024 JUDGMENT OF SCT JUDGE MAITHA ALSHEHHI
UPON the claim having been filed on 8 November 2023
AND UPON the Defendant’s defence dated 15 November 2023
AND UPON a hearing having been listed before SCT Judge Maitha AlShehhi on 8 January 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 amount ofAED 8,044.96.
2. The Defendant shall proceed to cancel the Claimant’s employment visa.
3. The Defendant shall pay the Claimant the DIFC Courts’ filing fee in the amount ofAED 367.25.
Issued by:
Hayley Norton
SCT Judge and Assistant Registrar
Date of issue: 16 January 2024
At: 10amTHE REASONS
Parties
1. The Claimant is Neve (the “Claimant”), an individual filing a claim regarding his employment at the Defendant company.
2. The Defendant is Nellie (the “Defendant”), a company registered in the DIFC, Dubai, UAE.
The Claim
3. In accordance with the offer letter dated 20 October 2022 (the “Offer Letter”), the Claimant’s joining date was 27 October 2022 in the position of Public Relation Officer and driver with a salary of AED 4,500.
4. The Claimant submits that he received his termination letter on 30 September 2023 (the “Termination Letter”), however, the date mentioned in the Termination Letter is 28 September 2023 resulting in the notice period ending on 27 October 2023 (i.e 27 days rather than 30 days).
5. The Claimant is seeking his end of service entitlements from the Defendant pursuant to the Offer Letter following his termination in the amount of AED 8,200.
6. The Claimant is also requesting the following reliefs from the Court:
(a) An order that the Defendant cancel the Claimant’s employment visa;
(b) An order that the Defendant pay the Claimant’s DEWS;
(c) An order that the Defendant pay for the Claimant’s return ticket; and
(d) An order that the Defendant refrains from deducting the following from his final settlement:
(i) Old traffic fines imposed on the company’s car in the amount of AED 640;
(ii) Petty cash in the amount of AED 681;
(iii) Salary payment of October 2022, July 2023 and May 2023 in the amount of AED 800; and
(iv) Absent days (i.e sick leave) on 21 February 2023, 15 May 2023, 5 July 2023 (half day), 6 July 2023 and 25 September 2023 in the amount of AED 675.
7. The Claimant submits that he never received any warning letters from the Defendant and has never signed any letters to that effect. He submits that the proposed deductions on his salary are not justified as such deductions should have been forfeited at the end of each month rather than at the termination stage.
8. With regards to the petty cash, the Claimant is of the opinion that all of his transactions were approved, and he never received any rejection or feedback otherwise he would not have been given those amounts the following month.
The Defence
9. The Defendant denies the Claimant’s claims in full and submits that the Claimant failed to adhere to his responsibilities and duties in line with the Offer Letter and the list of responsibilities given to him despite him having been warned both verbally and in writing on several occasions, resulting in the termination of his employment due to poor performance and negligence.
10. The Defendant concedes that it has a right to deduct the Claimant’s salary in the amount of AED 800 as these deductions were made in correlation with the warning letters issued to the Defendant.
11. As to the absent days, the Defendant submits that the Claimant failed to provide medical certificates to support his sick leave requests which is why it deducted those amounts.
12. The Defendant further submits that the Claimant failed to obtain management approval with regards to his spending of the petty cash and was using the money for his own benefit such as taking the car to the car wash instead of cleaning it himself, as mandated in the list of responsibilities assigned to him.
13. With regards to the flight ticket, the Defendant submits that the Claimant is not eligible for this on the basis that he is not leaving the country.
Applicable law
14. This dispute is governed by the Employment Law Amendment Law DIFC Law No. 4 of 2021 (the “DIFC Employment Law”) in conjunction with the Offer Letter.
Discussion
15. The Claimant’s rights and obligations are set out in the Offer Letter and the DIFC Employment Law.
16. The Offer Letter provides that the Claimant is eligible for 30 days of paid leave in one year. However, the Claimant was offered only 20 days in the final settlement which is not in line with the wording of the Offer Letter.
17. The Defendant failed to provide the Court with any record of utilised leave taken by the Claimant as it is its duty to maintain a record of such leaves pursuant to Article 16(1)(g) of the DIFC Employment Law. Therefore, I shall grant the Claimant’s request for payment in lieu of annual leave in the amount of AED 4,500 instead of AED 3,000 in accordance with the Offer Letter.
18. The Offer Letter states that the Claimant would only be eligible for the flight ticket in the event he completed two years of service with the company and given that the Claimant only completed one year, I find that the Claimant is not eligible for this benefit, and I shall reject the Claimant’s claim for a flight ticket.
When was the Claimant’s last working day?
19. Determining the Claimant’s termination date and last working day would determine whether he is eligible for his DEWS payment or not.
20. The Claimant submitted a screenshot of an email sent to him by Niuf on 30 September 2023 attaching the Termination Letter and the same was forwarded to him by Niuf via WhatsApp on 30 September 2023. Therefore, I find that the Claimant’s notice period starts from 30 September and not 28 September 2023, as stated in the Termination Letter.
21. As per the Offer Letter and the DIFC Employment Law, the notice period is for one month which ends on 29 October 2023 and not 27 October 2023. This means that the Claimant’s tenure with the Defendant company is for more than one year and even if it ended on 27 October 2023 then the Claimant would still be eligible to receive his DEWS payment as Article 66 states“who completes continuous employment ofone year or morewith their employer…. is entitled to a gratuity payment”.
22. Payment into a qualifying scheme is encompassed in Article 66 of the DIFC Employment Law, which reads as follows:
“(1) An Employee who is 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) 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…”
23. The abovementioned clauses provide that an employer is required to pay to 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.
24. 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.
25. In light of this, I hereby order the Defendant to pay the Claimant an amount equal to the minimum benefits set out by the DIFC Employment Law, which would reflect the contributions that the Defendant would have paid into the qualifying scheme had it complied with the requirements of the DIFC Employment Law.
26. The Claimant’s full employment with the Defendant was for the period of one year and 2 days. The Claimant would be entitled to contributions for the period between 27 October 2022 to 29 October 2023. This is to be calculated as follows:
Between 27 October 2022 to 27 October 2023:
The Claimant’s monthly basic wage is AED 1,800 x 5.83% (being the minimum contribution amount defined by the DIFC Employment Law) = AED 104.94 per month x 12 months = AED 1,259.28.
Between 28 October 2023 – 29 October 2023
The Claimant’s daily wage is AED 83.07 x 5.83% = 4.84 x 2 days = AED 9.68.
27. Therefore, in accordance with the above, the Claimant’s entitlement regarding contributions that should have been made by the Defendant to a qualifying scheme is set out to be AED 1,268.96.
28. As the Claimant is no longer an employee of the Defendant and has served his notice period, I hereby order the Defendant to proceed to cancel the Claimant’s employment visa immediately.
Are the deductions permissible under the Offer Letter and the DIFC Employment Law?
29. Article 20 of the DIFC Employment Law covers the eligibility of deductions:
“Deductions
An Employer shall not deduct from an Employee’s Remuneration or accept payment from an Employee, unless:
(a) the deduction or payment is permitted under this Law, or agreed to in an Employment Contract not in contravention of this Law;
(b) the prior written agreement of the Employee has been obtained in respect of the deduction or payment, provided that such deduction or payment is not prohibited under this Law;
(c) the deduction or payment is a reimbursement for an overpayment of any Remuneration or expenses, or to recoup benefits utilised by an Employee in excess of their accrued entitlement under their Employment Contract; or
(d) the deduction or payment has been ordered by the Court.“
30. The Defendant submits that the Claimant unlawfully deducted AED 300 in October 2022 which was the first month he joined without any legal basis and submits that the further deductions were not communicated to him as he alleges that he did not receive any warning letters.
31. After the Hearing, the Claimant submitted an invoice which demonstrates that the amount of AED 450 was paid out to the Claimant in respect of the 3 days in October 2022. As such, I shall reject the Claimant’s claim for AED 300 for October.
32. The Claimant’s salary for May 2023 was AED 4,300 as AED 200 was deduced as exhibited in the payslip, and AED 4,200 in July as AED 300 was also deducted.
33. Further to the above, whether the deductions were the result of warnings given to the Claimant, they were not agreed upon in the Offer Letter nor did the Defendant seek the Claimant’s written approval for such deductions. As such, I find that the deductions were not made in line with Article 20 of the DIFC Employment Law. Therefore, I shall award the Claimant the amount of AED 500 in respect of the deductions of his final settlement.
34. Article 34(2)(b) of the DIFC Employment Law does not impose an obligation on an employee to provide a medical certificate, rather it suggests that it be provided in the event it is required by the employer.
35. The Offer Letter ought to have covered the sick leave policy just like it included the annual leave policy, nevertheless, it failed to do so. The Defendant also failed to provide the Court with any evidence of an internal policy to support its allegation that a sick leave certificate must be furnished.
36. Therefore, I shall award the Claimant the amount of AED 675.
37. One of the responsibilities assigned to the Claimant is to provide a weekly update on the traffic fines imposed on the company’s cars and on the basis that these traffic fines were pending from 2019, the Defendant decided to deduct the value of these from his final settlement as no action was taken from the Claimant to address this.
38. The Claimant argues that he tried to resolve this issue and raised it with management and the reason for not completing this task was he could not possibly know the contact details of the previous owner of the car.
39. I understand the Defendant’s frustration in not getting this resolved during the Claimant’s one year tenure with the Defendant, however, this does not give the Defendant the right to deduct its value from the final settlement as these fines were not committed by the Claimant, as the offences occurred two years prior to the Claimant commencing his employment. Additionally, it was not agreed upon in the Offer Letter nor did the Defendant obtain the Claimant’s approval for such deductions.
40. As such, I shall grant the Claimant’s request in the amount of AED 640.
41. The Defendant further deducted AED 600 with regards to petty cash from the Claimant on the basis that the transactions of car washing and obtaining NOL cards were not approved by management. The Defendant concedes that it is the ultimate duty of a driver to ensure that the car is well maintained and is clean and submits that it is the Claimant’s duty to wash the car and the car wash transactions were never approved by management.
42. The Claimant has used the car washing services from March 2023 to October 2023 and as per the screenshot of WhatsApp conversations, it is evident that the Claimant communicated that he is“going to car wash”and no objection was ever raised.
43. It is required from the Claimant to keep “all three vehicles clean and washed out all the time”. However, it does not explicitly say that he must wash the car himself.
44. I must add that in the event this act was impermissible by the Defendant, the Defendant ought to have made it clear to the Claimant each time he submitted such requests and not deduct those amounts from his final settlement.
45. At the Hearing, the Claimant agreed that he does not wish to seek a refund for the NOL cards therefore these amounts shall be not awarded to him.
46. Nevertheless, deductions (if permitted under Article 20 of the DIFC Employment Law) ought to be communicated to an employee immediately to signify the seriousness of the matter and should not be left unaddressed until the exit process stage.
47. As such, I find that the Defendant should release to the Claimant the amount of AED 461 and the total amount owing to the Claimant is AED 8,044.96.
Findings
48. For the above cited reasons, I hereby order the Defendant to pay the Claimant the amount of AED 8,044.96.
49. The Defendant shall cancel the Claimant’s employment visa.
50. The Defendant shall pay the Claimant the DIFC Courts’ filing fee proportionate to the judgment sum in the amount of AED 367.25.