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Nadheer v Nasrullah [2024] DIFC SCT 277

September 19, 2024 SCT - JUDGMENTS AND ORDERS

Claim No. SCT 277/2024

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
BEFORE H.E. JUSTICE MAHA AL MHEIRI

BETWEEN

NADHEER

Claimant

and

NASRULLAH

Defendant

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Hearing :	18 September 2024
Judgment :	19 September 2024

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JUDGMENT OF H.E. JUSTICE MAHA AL MHEIRI

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UPON the Claimant filing a Claim Form dated 10 July 2024 (“Claim”)

AND UPON a hearing held before H.E. Justice Maha Al Mheiri on 18 September 2024, with the Claimant in attendance and the Defendant’s representative failing to attend

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

AND PURSUANT TORule 53.61 of the Rules of the DIFC Courts the (“RDC”)

IT IS HEREBY ORDERED THAT:

1. The Claimant’s Claim is dismissed.

2. The Defendant shall immediately cancel the Claimant’s employment visa.

3. Each party shall bear their own costs.

Issued by:
Delvin Sumo
SCT Judge and Assistant Registrar
Date of issue: 19 September 2024
At: 12pm

THE REASONS

The Parties

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

2. The Defendant is Nasrullah (the “Defendant”), a company registered in the DIFC, 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 27 June 2022 (the “Employment Contract”). The Claimant was hired as Human Resource Director with a monthly salary of AED 31,000.

4. On 3 May 2024, the Claimant was terminated from his position and was required to serve a two months’ notice period ending on 2 July 2024. The Defendant failed to pay the Claimant his employment entitlements under the Employment Contract.

5. On 4 July 2024 the parties entered into a settlement agreement (“Settlement Agreement “) pursuant to which the Defendant agreed to pay the Claimant the following:

“In consideration of the Employee signing of this agreement, the Company agrees to pay the amount of 61,595 AED to the Employee on signing this agreement to be transferred to the Employee’s bank account by as well as the amount of 41,652 AED as Dews settlement to be transferred to Dews as final settlement and release (the “Settlement Amount”).”

6. On 10 July 2024, the Claimant filed a claim in the DIFC Courts’ Small Claims Tribunal (the “SCT”) claiming the unpaid DEWS amount under the Settlement Agreement and damages for non-payment in the amount of AED 60,000.

7. On 12 August 2024, the Defendant filed an Acknowledgment of Service intending to defend the whole claim.

8. On 20 August 2024, the Defendant paid the Claimant the amount of AED 41,652 for the unpaid DEWS amount as agreed in the Settlement Agreement.

9. The Court scheduled a consultation before SCT Judge Delvin Sumo on 22 August 2024 (the “Consultation”), but the parties 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 18 September 2024 with the Claimant in attendance and the Defendant’s representative absent.

10. RDC 53.61 of the Rules of the DIFC Courts stipulates that “if a defendant does not attend the hearing and the claimant does attend the hearing, the SCT may decide the claim on the basis of the evidence of the Claimant only”.

Discussion

11. This dispute is governed by the DIFC Law No. 4 of 2021 (Employment Law Amendment Law) (hereafter the “DIFC Employment Law”) in conjunction with the relevant Employment Agreement.

12. The only issue before the Court to determine whether the Defendant is liable to pay damages based on the DIFC Employment Law and the Employment Contract.

Damages for delay in payment of employment entitlements

13. The Claimant seeks two months’ salary in the amount of his daily wage pursuant to the Defendant’s failure to pay his employment entitlements from his resignation on 2 July 2024 until cancellation of his visa.

14. The Claimant submits that the Defendant confirmed that it will cancel his employment visa but it has failed to do so, which is delaying the process of him finding new job opportunities and moving on.

15. 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.”

16. 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).

17. In review of the Court file, it appears that the Claimant filed his claim on 10 July 2024, i.e., ahead of the 14 days that is stated in the DIFC Employment Law.

18. I conclude that the Claimant did not afford the Defendant the opportunity to make the payments owed to him, as the Defendant would have had at least 14 days from 2 July 2024 (14 days being 16 July 2024), to make payments to the Defendant. The Defendant also received notice of the Claim on 10 July 2024 and settled all pending amounts on 20 August 2024.

19. 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 Defendant is not entitled to a penalty pursuant to Article 19 of the DIFC Employment law and dismiss this claim accordingly.

Conclusion

20. In light of the aforementioned, the Claimant’s claim is dismissed.

21. The Defendant shall cancel the Claimant’s employment visa.

22. Each party shall bear their own costs.