Claim No. SCT 035/2021
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
LAKHI RESTAURANT, LOUNGE & BAR LLC
|Hearing :||1 April 2021|
|Judgment :||22 April 2021|
JUDGMENT OF H.E JUSTICE MAHA AL MHEIRI
UPONthis Claim being filed on 10 February 2021
AND UPONa Second hearing having been listed before H.E. Justice Maha Al Mheiri on 1 April 2021, with the Claimant in attendance and the Defendant’s representative failing to attend
AND UPONreading the submissions and evidence filed and recorded on the Court file
IT IS HEREBY ORDERED THAT:
1. The Claimant’s claims are dismissed.
2. Each party shall bear their own costs.
Ayesha Bin Kalban
SCT Judge and Deputy Registrar
Date of issue: 22 April 2021
1. The Claimant is Lakshit (the “Claimant”), an individual filing a claim regarding her employment at the Defendant company.
2. The Defendant is Lakhi Restaurant, Lounge & Bar (the “Defendant”), a restaurant located in Emirates Financial Towers, DIFC.
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 1 November 2018 (the “Employment Contract”). The Claimant was hired as a ‘Waitress’ with a monthly salary of AED 8,000 consisting of the following:
(a) Basic allowance in the amount of AED 4,400
(b) Accommodation allowance in the amount of AED 2,640; and
(c) Other allowances in the amount of AED 400.
4. The Claimant’s employment with the Defendant continued until 14 March 2020, when the Claimant, along with other employees of the Defendant, was told that the Defendant restaurant was undergoing a temporary closure, in accordance with guidelines received by the relevant authorities under the circumstances surrounding the COVID-19 pandemic (the “Pandemic”), and that all employees will be placed on unpaid leave until further notice. The Claimant at that point left the country without seeking the Defendant’s prior consent.
5. In July 2020, the Defendant initiated its re-opening and proceeded to make contact with its employees that were within the UAE to resume their duties. The Claimant was still out of the country and did not return until October 2020.
6. On 13 October 2020, the Defendant issued a termination letter with immediate effect, setting out a final settlement computation of the Claimant’s end of employment entitlements, which the Claimant duly accepted. The Claimant submits that it was agreed between the parties that the termination of the Claimant’s employment would be back-dated to March 2020, being the time that the Defendant’s restaurant operations were closed temporarily.
7. The Claimant submits that the Defendant informed her that she would be paid her final settlement in the amount AED 14,365 in instalments, but submits that no amount was paid to her despite her constant follow ups with the Defendant. On 10 February 2021, the Claimant filed a claim in the DIFC Courts’ Small Claims Tribunal (the “SCT”) claiming various sums set out as follows:
(a) AED 8,000 salary for the month of March 2020;
(b) AED 8,000 as payment in lieu of a 1-month notice period;
(c) Payment in lieu of accrued but untaken annual leave for the year 2019 and the pro-rated accrual of leave until the Defendant’s closure in the year 2020;
(d) AED 4,365 for End of Service gratuity; and
(e) Penalties under Article 19 of the DIFC Employment Law.
8. On 1 March 2021, the Defendant filed an Acknowledgment of Service intending to defend part of the claim.
9. The parties met for a Consultation with SCT Judge Hayley Norton on 7 March 2021 but 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 16 March 2021.
10. At the Hearing, the Defendant did not contest the Claimant’s entitlements under the Employment Contract and those set out in final settlement, but submitted that its business and financial position have suffered as a result of the Pandemic, and therefore the Defendant submits that it is unable to provide the Claimant with payment in lieu of her one month notice period, and penalties under Article 19 of the DIFC Employment Law.
11. A Second Hearing was held on 1 April 2021, where the Court wished to request further information from the parties. The Claimant attended this Hearing, and the Defendant’s representative absent although served with notice of the hearing date.
12. 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 basis of the evidence of the Claimant only”.
13. This dispute is governed by DIFC Employment Law No. 2 of 2019 (the “DIFC Employment Law”) in conjunction with the relevant Employment Contract.
14. In reviewing the case file, one crucial factor that effects the Court’s ability to determine the Claimant’s entitlement came to light.
It is the Claimant’s submission in all the evidence submitted to the Court that she agreed with the Defendant that her employment with the Defendant was terminated on 14 March 2020. There is no other evidence submitted demonstrating that the Claimant was present in the UAE nor that she worked for the Defendant during the period from March 2020 to October 2020.
15. Article 10 of the DIFC Employment Law which sets out the limitation period for which an employee can bring their claim before the Court
“10. Limitation Period
Subject to Article 61(2), a Court shall not consider a claim under this Law unless it is brought to the Court within six (6) months of the relevant Employee's Termination Date.”
16. In light of the above finding, I have determined that the Claimant’s claims are time-barred having exceeded the 6 months’ limitation period from the Claimant’s termination date, and as such the Claimant’s claims are dismissed.