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You are here: BAILII >> Databases >> The Dubai International Financial Centre >> Nestor v Nessim [2024] DIFC SCT 168 (15 July 2024) URL: http://www.bailii.org/ae/cases/DIFC/2024/DSCT_1688.html |
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Nestor v Nessim [2024] DIFC SCT 168
July 15, 2024 SCT - JUDGMENTS AND ORDERS
Claim No: SCT 168/2024
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
NESTOR
Claimant
and
NESSIM
Defendant
Hearing : 8 July 2024 Judgment : 15 July 2024 JUDGMENT OF SCT JUDGE MAITHA ALSHEHHI
UPON the claim having been filed on 30 April 2024 (the “Claim”)
AND UPON the Defendant’s failure to file a written defence
AND UPON a hearing having been listed before SCT Judge Maitha AlShehhi on 8 July 2024 with the Claimant and the Defendant’s representative in attendance (the “Hearing”)
AND PURSUANT TORule 4.12 of the Rules of the DIFC Courts
AND UPON reviewing the documents and evidence filed and recorded on the Court file
IT IS HEREBY ORDERED THAT:
1. The Defendant’s name shall be amended to reflect “Nessim”.
2. The Defendant shall pay the Claimant the amount ofAED 23,726.43.
3. The Claimant shall, by no later than4pm on 16 July 2024,provide the Court with 3 quotations reflecting one way flight tickets to Egypt.
4. The Defendant shall pay the Claimant the DIFC Courts’ filing fee in the amount ofAED 600.
Issued by:
Hayley Norton
SCT Judge and Assistant Registrar
Date of issue: 15 July 2024
At: 2pmTHE REASONS
Introduction
1. The Claimant is Nestor (the “Claimant”), an individual filing a claim against his former employer.
2. The Claimant initially filed the Claim against Niek (“Niek”) while his employment contract dated 17 February 2022 (the “Employment Contract”) is signed with Nessim (“ Nessim”).
3. Nessim and Niek are two separate legal entities, nonetheless, Mr Nestor seems to be a shareholder in both with 50% shares in Nessim and Niek . In any event, given that the Employment Contract is signed with Nessim, I hereby order that the Defendant’s name be changed to Nessim.
4. I shall still consider this Claim for pending salaries on the basis that the Claimant is an employee of Nessim . It is clear that he was permitted by management to be seconded to work for Niek while remaining an employee of Nessim= .
5. The Defendant is Nessim (the “Defendant”), a company registered in the DIFC, Dubai, the UAE.
The Claim
6. The Claimant is seeking his end of service entitlements following his resignation from the Defendant company to the amount of AED 30,000.
7. The Claimant submits that he was employed by Nessim on 17 February 2022 and continued working there until he was asked by management to relocate to Niek , which has the same owner. As such, the Claimant submits that there was no need for a new employment contract to be signed as the relocation was done internally and he was not given any other choice.
8. Pursuant to the Employment Contract, the Claimant was employed in the position of Waiter, with a monthly salary of AED 3,000.
9. The Claimant asserts that the Defendant has been withholding his salary payments in Nessim for the months of April and May 2023, in addition to withholding salaries from November 2023 to April 2024 from Niek.
10. During this period, the Claimant submits that he was only paid AED 2,500 and is requesting the Defendant to pay him AED 30,000 which also includes the annual leave payment for 2 months.
11. The Claimant also claims his entitlement to a flight ticket to his home country, Egypt, given that he completed two years of service.
The Defence
12. The Defendant failed to file a written defence to the Claim.
13. However, a representative of Niek attended the Hearing and takes the view that given that the Claimant was working with a different manager in Niek , then the amount ought to have been collected from that manager as opposed to it being filed against the restaurant.
14. He asserts that the Claimant should have signed a new contract with Niek and at the hearing he submitted that he is willing to offer the Claimant what he is owed in terms of pending salaries in the amount of AED 7,000.
15. The Defendant rejects the Claimant’s other claims in respect of payment in lieu of annual leave, gratuity payment and flight ticket.
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. The Claim pertains to pending salaries and end of service entitlements following the Claimant’s resignation.
18. As to the Claimant’s claim of pending salaries, the Defendant failed to provide any evidence to support the Claimant’s salary slips from 2023 and 2024.
19. Article 16(c) of the DIFC Employment Law states the following:
“Payroll Records
(1) An Employer shall keep record of the following information:
(c) the employee’s remuneration (gross and net, where applicable), and the applicable pay period;”
20. Therefore, I shall rely on the Claimant’s submissions in relation to the pending salary amounts. From May 2023 to April 2023, I am of the view that the Claimant is entitled to receive his full salary for this period to the amount of AED 6,000.
21. In relation to the pending salaries from November 2023 to 17 April 2024, I am of the view that the Claimant is entitled to receive his salary payments for full payment of November 2023 to March 2024 to the amount of AED 15,000.
22. Given that the Niek was officially closed on April 2024, I shall dismiss the salary payment for April 2024.
23. Therefore, the Claimant’s claim in respect of outstanding salary shall be paid in the amount of AED 18,500 (calculated as AED 21,000 – AED 2,500, which was already paid to the Claimant).
24. The Claimant is further claiming payment in lieu of annual leave, and given that there is no evidence submitted by the Defendant whether the Claimant utilised this, I shall grant the Claimant’s claim and award him the amount of AED 3,000 in respect of payment in lieu of annual leave.
25. 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 they have entered into. 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”
26. In light of this, I find that the Claimant’s claim to his airfare of an economy flight ticket to Egypt is accepted, the Claimant shall provide 3 quotations of one-way air ticket to Egypt by no later than 4pm on 16 July 2024 for the Court’s consideration.
27. 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...”
28. 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.
29. 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.
30. The Defendant failed to provide evidence to demonstrate that the Claimant has been enrolled into a Qualifying Scheme. Therefore, I order that the Defendant pay to the Claimant 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.
31. The Claimant’s employment duration was for 2 years, 1 month and 14 days. The Claimant would be entitled to contributions for the period between 17 February 2022 to 31 March 2024. This is to be calculated as follows:
Between 17 February 2022 – 17 March 2024:
The Claimant’s monthly basic wage is AED 1,500 x 5.83% (being the minimum contribution amount defined by the Employment Law) = AED 87.45 per month x 25 months = AED 2,186.25.
Between 18 March 2024 – 31 March 2024:
AED 49.31 (being the Claimant’s daily basic wage) x 5.83%= AED 2.87 per day x 14 day = AED 40.18.
32. Therefore, in accordance with the above, the Claimant’s entitlement in regard to contributions that should have been made by the Defendant to a qualifying scheme is AED 2,226.43.
33. As the Claimant was still employed by Nessim , the Defendant must pay the full amount of AED 23,726.43 to the Claimant as it authorised the Claimant’s relocation to Niek and the Claimant is deemed to have been seconded to Niek while the obligation of payment remains with Nessim.
Findings
34. The Defendant shall pay the Claimant the amount of AED 23,726.43.
35. The Claimant shall, by no later than 4pm on 16 July 2024, provide the Court with 3 quotations reflecting one way flight ticket to Egypt.
36. Given that the Claimant has been successful in all his claim, I am of the view that he is entitled to recover the full filing fee. As such, The Defendant shall pay the Claimant the DIFC Courts’ filing fee in the amount of AED 600.
