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You are here: BAILII >> Databases >> The Dubai International Financial Centre >> Nell v Nemi [2024] DIFC SCT 485 (16 May 2024) URL: http://www.bailii.org/ae/cases/DIFC/2024/DSCT_485.html Cite as: [2024] DIFC SCT 485 |
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Nell v Nemi [2023] DIFC SCT 485
May 16, 2024 SCT - JUDGMENTS AND ORDERS
Claim No. SCT 485/2023
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 OF DIFC COURTS
BEFORE H.E JUSTICE MAHA AL MHEIRIBETWEEN
NELL
Claimant
and
NEMI
Defendant
Hearing : 4 April 2024 Further Submissions : 15 April 2024 Judgment : 16 May 2024 ORDER WITH REASONS OF H.E JUSTICE MAHA AL MHEIRI
UPON this Claim being filed on 29 November 2023
AND UPON a Jurisdiction Hearing having been held before H.E. Justice Maha Al Mheiri on 4 April 2024, with the Claimant’s and the Defendant’s representatives in attendance (the “Jurisdiction Hearing”)
AND UPON reading the submissions and evidence filed and recorded on the Court file
IT IS HEREBY ORDERED THAT:
1. The Jurisdictional Challenge is dismissed.
2. The DIFC Courts have jurisdiction to hear and determine this claim.
3. Each party shall bear their own costs.
Issued by:
Hayley Norton
SCT Judge and Assistant Registrar
Date of Issue: 16 May 2024
At: 8amTHE REASONS
The Parties
1. The Claimant is Nell (the “Claimant”), an employee of the Defendant.
2. The Defendant is Nemi (the “Defendant”), a restaurant located in Dubai, UAE.
Background and the Preceding History
3. The underlying dispute arises over the employment of the Claimant by the Defendant pursuant to an Employment Contract dated 2 September 2022 (the “Employment Contract”).
4. The Claimant was hired as a ‘Grilled Chicken Maker’ with a monthly salary of AED 3,500. In November 2023, the Claimant resigned from his position due to non-payment of salary.
5. On 29 November 2023, the Claimant filed a claim in the DIFC Courts’ Small Claims Tribunal (the “SCT”) claiming the sum of AED 23,359.71 with respect to various claims relating to his employment entitlements.
6. On 8 March 2024, the Defendant filed an Acknowledgment of Service indicating its intent to contest the jurisdiction of the DIFC Courts.
7. In line with the rules and procedures of the SCT, this matter was referred to me for determination, pursuant to a jurisdiction hearing held on 4 April 2024 with the Claimant and the Defendant’s representative in attendance (the “Jurisdiction Hearing”).
The Jurisdiction Challenge
8. In its submissions, the Defendant submits that the Claimant is an employee of the Defendant in Nemi, which is located outside the DIFC and the Defendant’s license was issued by the Department of Economic Development and Tourism in Dubai.
9. The Defendant is not located in the DIFC. In addition, the Claimant’s visa is issued by the Ministry of Human Resources and Emiratisation and he has worked at the Defendant’s branch located in Dubai.
10. In reply, the Claimant submits that he has never worked at the Defendant’s branch located in Dubai and has always worked at the DIFC branch. The Claimant supported his submissions with various evidence including, footage of him at the DIFC Branch, a picture with his colleagues at the DIFC branch, and a letter issued by the DIFC branch.
Discussion
11. The jurisdiction of the DIFC Courts is determined by Article 5(A) of the Judicial Authority Law, Dubai Law No. 12 of 2004, as amended, (the “JAL”) which provides a number of limited gateways through which the DIFC Courts have jurisdiction over a claim, namely:
“(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 it whether before or after the dispute arises, provided that such agreement is made pursuant to specific, clear and express provisions.
(3) The Court of First Instance may hear and determine any civil or commercial claims or actions falling within its jurisdiction if the parties agree in writing to submit to the jurisdiction of another court over the claim or action but such court dismisses such claim or action for lack of jurisdiction.”
12. Based on the submissions and the arguments at the Jurisdiction Hearing, I find that this dispute falls under the jurisdictional gateways set out by the abovementioned Article 5(A). I set out my reasons below.
13. The Defendant is a restaurant registered and licensed in Dubai mainland. The Claimant is and was, at all material times, an employee of the Defendant. The Defendant submits that the Claimant has never worked at the Defendant’s branch located in the DIFC, which runs contrary to the evidence that has been submitted by the Claimant. The Defendant failed to provide any evidence to support its assertion that the Claimant was working at the Defendant’s branch in onshore Dubai.
14. Article 5(A) of the JAL reads that the DIFC Courts shall have jurisdiction over civil claims that arise out of or relate to a contract that was performed or was to be performed within the DIFC. It also states that the DIFC Courts has jurisdiction over claims to which any DIFC establishment is a party. As the Defendant has a branch in the DIFC which is a registered entity, and as the Employment Contract central to the Claim was performed in the DIFC, the DIFC Courts has a connection to the claim at hand and has jurisdiction over this claim.
15. In addition, I find that the Claimant’s Employment Contract makes no reference to the relevant jurisdiction that shall apply in the situation of a dispute. The Employment Contract simply states at Clause 3:
“3. Benefits and Pension:
As per UAE law.”
16. Although the Claimant’s visa and Employment Contract makes reference to the Defendant’s branch in Dubai, there is no evidence filed by the Defendant to support that submission. The Claimant’s video footage and letter does clearly show that he worked in the DIFC. Therefore, for the reasons set out above, I hereby order that the DIFC Courts’ have jurisdiction to hear and determine this Claim.
17. Each party shall bear their own costs.