Claim No. SCT 047/2021
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
|Hearing :||11 March 2021|
|Further Submissions :||1 April 2021|
|Judgment :||8 April 2021|
JUDGMENT OF H.E. JUSTICE MAHA AL MHEIRI
UPONthis Claim being filed on 18 February 2021
AND UPONa Consultation being held before SCT Judge Hayley Norton on 4 March 2021
AND UPONthe parties failing to reach a settlement at the Consultation
AND UPONa hearing having been listed before H.E. Justice Maha AlMehairi on 11 March 2021, with the Claimant and the Defendant’s representatives in attendance
AND UPONreading the submissions and evidence filed and recorded on the Court file
IT IS HEREBY ORDERED THAT:
1. The Defendant shall pay to the Claimant the amount ofAED 57,389.1
2. The Claimant’s Claim for damages and the Defendant’s counterclaim shall be dismissed.
3. The Defendant shall cancel the Claimant’s visa.
4. The Defendant shall pay the Claimant the Court fee in the sum ofAED 1,147.78.
Ayesha Bin Kalban
SCT Judge and Deputy Registrar
Date of issue: 8 April 2021
1. The Claimant is Lipika (the“Claimant”), an individual filing a claim regarding his employment at the Defendant’s company.
2. The Defendant is Lukesh (the “Defendant”), a software company located in 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 October 2020 (the “Employment Contract”). The Claimant was hired as a ‘Senior Salesforce Engineer’ with a monthly salary of AED 23,000 consisting of the following:
a. Basic Salary: AED 11,500
b. Housing Allowance: AED 3,333.33
c. Transportation Allowance 2,416.67
d. Commission: AED 5,750
4. The Claimant faced delay in the payment of his salaries from December 2020, this continued until the Claimant gave notice of his resignation on 1 February 2021. While the Claimant was serving his notice period, the Defendant requested that the Claimant carry out projects with allegedly unrealistic deadlines, which lead the Claimant to stop serving his notice period on 15 February 2021 with immediate effect.
5. On 18 February 2021, the Claimant filed a claim in the DIFC Courts’ Small Claims Tribunal (the “SCT”) claiming the sum of AED 61,000 to be paid to the Claimant by the Defendant for unpaid salaries and expenses.
a. AED 13,500 outstanding salary for the month of December 2020
b. AED 23,000 outstanding salary for the month of January 2021
c. AED 11,342 outstanding salary for 15 days worked in February 2021
d. AED 7,500 as damages for not completing his notice period
e. Unpaid expenses in the amount of AED 5,766
f. The cancellation of his Visa
6. On 10 March 2021, the Defendant filed its Defence with Counterclaim, seeking the sum of AED 34,394 in respect of lost and damaged company property and intellectual information directly related to the files and data allegedly wiped by the Claimant.
7. The parties met for a Consultation with SCT Judge Hayley Norton on 4 March 2021 but were unable to reach a settlement.
8. In line with the rules and procedures of the SCT, this matter was referred to me for determination, pursuant to a Hearing held on 11 March 2021, at which the Claimant and Defendant’s representatives were in attendance.
9. At the Hearing, the Court requested proof of the expense claims in the amount of AED 5,766 paid by the Claimant, said evidence was in turn filed by the Claimant on 1 April 2021.
10. The Claimant submits that the Defendant has breached its contractual obligation to pay for the Claimant’s employment entitlements as per the Employment Contract, in the sum of AED 47,842.
11. The Claimant also adds that the Defendant delayed the payment of expenses owed to him, which lead the Claimant to file his resignation.
12. Therefore, the Claimant seeks payment of the outstanding amount, expenses, damages and the court fees for the filing of the Claim.
Defence and Counterclaim
13. The Defendant alleges that the Claimant has breached the Employment Contract which resulted in negative consequences to the Defendant business.
14. The first breach of contract referred to by the Defendant relates to the failure of ownership and title to confidential information as per the Employment Contract. The Defendant submits that the Claimant ignored instructions to perform work duties on the company provided laptop and instead worked from his personal laptop for 4 months, between November 2020 to February 2021, while having given the company laptop to his wife. The Defendant submits that it had not been made aware nor had it given consent of any use of work duties performed on non-company laptops.
15. The Defendant further submits that the Claimant also failed to perform reasonable knowledge handover to the Defendant causing delays and incurring additional costs to the Defendant’s business. The Defendant submits that these damages amount to lost time and redoing the employee’s work and commitments to its clients. The Defendant therefore seeks damages in the amount of AED 11,744 for lost billable time and redoing work already performed by the Claimant
16. The Second breach of contract referred to by the Defendant relates to the Claimant’s alleged failure to return confidential information as per the Employment Contract.
17. The Defendant submits that the Claimant did not return the intellectual property to its rightful owner, the Defendant, and submitted that, instead, the Claimant deleted the data and caused damages to the Defendant’s business, work and clients.
18. The Defendant contends that damages amount to lost time and monetary billable hours with regards to the Defendant’s client work, documentation, communication, client meeting recordings, client training documents, client training session recordings and other codes and development relating to Defendant’s company work.
19. The Defendant therefore is seeking damages for the amount of AED 22,650 for lost and damaged company property and intellectual information directly related to the files and data allegedly wiped by the Claimant.
20. This dispute is governed by DIFC Employment Law No. 2 of 2019 (the “DIFC Employment Law”) in conjunction with the relevant Employment Contract.
21. I shall set out below each of the Claimant’s claims, the Defendant’s defence to each Claim, and accordingly, the Court’s reasoning and finding.
The Claimant’s Unpaid Salary Claim
22. The Unpaid Salary claim in the amount of AED 47,842 is sought by the Claimant who submits that he was not paid his salary for the remaining of month December 2020, the month of January 2021, and for 15 days worked in February 2021. The Defendant’s representative submits that the Claimant is entitled to some amounts but not the amount that he is claiming. The Defendant submits that the Claimant is entitled to the amount of AED 17,250 on a monthly basis without commission, submitting that commission falls under the discretion of the Defendant and is not an amount that is awarded every month.
23. The Employment Contract states under Clause Employee Remuneration:
“10. Compensation paid to the Employee for the services rendered by the Employee as required by this Agreement (the "Compensation") will consist of base salary of 138,000 (Arab Emirates Dirham) per year according to the following specification:
On Target Earnings (OTE) is calculated on Base salary amount, Allowances and Commissions:
All amounts below are on a per year based on the currency AED:
○ Base Salary: AED 138,000 per year
○ Housing Allowance: AED 40,000 per year
○ Transportation Allowance: AED 29,000 per year
○ Commissions: AED 69,000 per year
- The Base Salary is paid monthly
- The Housing and Transportation Allowances are paid monthly
- The Commissions is paid monthly
11. This Remuneration will be payable once per month on the last day of the month while this Agreement is in force. The Employer is entitled to deduct from the Employee's Compensation, or from any other compensation in whatever form, any applicable deductions and remittances as required by law.
12. The Employee understands and agrees that any additional remuneration paid to the Employee in the form of bonuses or other similar incentive remuneration (outside of the On-Target Earnings) will rest in the sole discretion of the Employer and that the Employee will not earn or accrue any right to incentive remuneration by reason of the Employee's employment.”
24. Under specifications above, it is stated that the commission is paid monthly, and places no discretion on the part of the Defendant. I find that the only discretionary entitlement is in relation to the bonus payments and any additional remuneration as stated above.
25. The Defendant submits that the Claimant received partial payment in the amount of AED 9,500 for the month of December, and the outstanding amount is AED 9500 – AED 23,000 monthly salary = AED 13,500. The Defendant failed to pay the Claimant’s salary for the month of January in the amount of AED 23,000. In addition, the Claimant worked 15 days in February 2021 (AED 23,000 x 12/260 = AED 1,061.54 daily wage x 15 days = 15,923.1
26. Therefore, it is hereby ordered that the Defendant shall pay the Claimant the amount of AED 52,423.1 in respect of the Claimant’s Claim for unpaid salary.
27. The Claimant argues that the Defendant failed to repay the Claimant his expenses for the amounts paid for the following items:
- AED 4199 for Laptop purchase
- AED 500 for cab receipts
- AED 767 for return ticket flight
- AED 300 for Document stamping
28. At the Hearing, the Court requested proof of the invoices paid by the Claimant. The Claimant argues that the original invoices are under the custody of the Defendant, which the Defendant refutes stating that there is a system for expenses that should be followed in order for reimbursement to be approved.
29. The Claimant’s Employment Contract stated under Clause 13
“13. The Employer will reimburse the Employee for all reasonable expenses, in accordance with the Employer's lawful policies as in effect from time to time, including but not limited to, any travel and entertainment expenses incurred by the Employee in connection with the business of the Employer. Expenses will be paid within a reasonable time after submission of acceptable supporting documentation. Approved expenses shall be payable to employees once a month with the employees monthly payroll. Subject to expense submitted and approved ahead of the monthly cut off date of minimum 10 days before the payroll transfer date.”
30. The Claimant did provide proof of a WhatsApp conversation between him and the Defendant’s representative in relation to the Flight Ticket and the Laptop, where the Defendant agrees to pay the amounts.
31. In relation to the flight expense, when the Claimant was coming from his home country the airport authority would not allow him to board the plane without a return ticket, so he had to change his ticket from one way to a return ticket, which the Defendant’s representative approved by stating in the WhatsApp chat:
“I will reimburse you for the flight no worries. How do you feel being on the way”
32. The Defendant also approved the laptop purchase, as it was a gift by the Defendant, the amount for which the Defendant’s representative confirmed that the Defendant will bear the Claimant’s cost of the purchase. This is supported by the following:
“12:33pm: Kapil get a laptop if they have one, And I will give you the money back for it for your personal one
It is a gift from me for all the work you did before starting
7:50pm: just pay the amount I will reimburse you”
33. The Claimant failed to present proof of approval for the taxi and the documentation expenses. As such, seeing as these two items fail to meet the criteria of “submitted and approved” the Claimant’s claim for the reimbursement of expenses in relation to those said items shall be dismissed for lack of supporting evidence. As such, I find the Claimant is entitled to AED 4,966 in relation to his claim for expenses.
34. The Claimant seeks an order for damages in the amount of AED 7500 which he has incurred in connection with having to stop working during the notice period due to his suffering of high stress set by the Defendant who allegedly placed unrealistic deadlines on projects.
35. As the Claimant stopped working of his own will, the Court finds that he should not be entitled to damages. I am of the view that damages are only to be awarded in limited circumstances, where the court finds that a claimant is able to provide evidence showing that it had suffered severe damages as a result of the actions carried out by another party and a direct link of these damages to said action. I do not find that the Claimant has sufficiently provided evidence of such a claim and as such I directed that the Claimant’s Claim for damages be dismissed.
36. The Defendant filed a Counterclaim claiming the sum of AED 34,394 in respect of the Claimant’s alleged breach in the Employment Contract. The Defendant’s argument in relation to the Counterclaim is similar to its defence. The Defendant argues that the Claimant had breached its obligations under the Employment Contract.
37. The Court has examined the evidence provided by the Defendant when stated that the Company was forced to pay back its clients for the work that the Claimant failed to handover. There is no evidence submitted by the Claimant to support this allegation.
38. At the Hearing, the Defendant explained that the Claimant was working on tasks that involved the Defendant on his personal laptop and ignored the fact that the company provided each employee with a work laptop to perform their tasks.
39. When the time for handover came, the Claimant and the Defendant had a meeting to arrange for handover and the Claimant’s laptop was under the custody of the Defendant for him to format after completing the handover and returning the laptop back to the Claimant.
40. The Defendant then complained that no proper handover was performed and with the format of the laptop, all data and information was wiped so the Defendant submits that it is now forced to redo all the work performed for its clients.
41. The Court is of view that each party has an obligation to provide evidence to support its claim. I note that the Defendant requested that the Claimant provide a handover then proceeded to format the laptop. The Court does note that the Claimant is in the wrong for using his personal laptop for carrying out company work but is of the view that the Claimant did not resist the handover nor did he refrain from handing his personal laptop over to the Defendant. The Defendant was responsible for the format of the laptop and instead of making a copy of all the data on the laptop, sought for the laptop to be formatted. in addition, the Defendant and the Claimant worked closely together and the issue of the Claimant’s use of his personal laptop could have been raised ahead of the Claimant’s resignation.
42. It is the Court’s view that the lost data is caused by the Defendant when it was decided to format the Claimant’s personal laptop without ensuring the handover was completed. Therefore, I find that the Defendant is not entitled to any payment from the Claimant. As such, I dismiss the Defendant’s counterclaim.
43. In light of the aforementioned, I find that the Defendant shall pay the Claimant the sum of AED 57,389.1 for the unpaid salaries and expenses.
44. I dismiss the Claimant’s claim for damages and the Defendant’s Counterclaim.
45. The Defendant shall pay the Claimant the Court fee in the sum of AED 1,147.78.