Claim No. SCT 409/2022
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 NASSIR AL NASSER
BETWEEN
Leo
Claimant
and
Leona
Defendant
| Hearing : | 27 December 2022 |
|---|---|
| Judgment : | 6 January 2023 |
JUDGMENT OF H.E JUSTICE NASSIR AL NASSER
UPON this Claim being filed on 11 November 2022
AND UPON a hearing having been held before H.E Justice Nassir Al Nassir on 27 December 2022, with the Claimant and the Defendant’s representative in attendance
AND UPON reviewing the documents and evidence filed and recorded on the Court file
IT IS HEREBY ORDERED THAT:
1. The Defendant shall pay the Claimant the total sum ofAED 4,659.
2. The Defendant shall cancel the Claimant’s employment visa and lift the absconding order imposed on the Claimant.
3. The Claimant shall return to the Defendant the Du and Empower bills, and the expired cheque from Empower.
4. The Claimant’s other claims shall be dismissed.
5. The Defendant shall pay the Claimant the Court fee in the sum ofAED 367.50.
Issued by:
Delvin Sumo
Assistant Registrar
Date of issue: 6 January 2023
At: 2pm
THE REASONS
The Parties
1. The Claimant is Leo (the “Claimant”), an individual filing a claim against the Defendant regarding his employment at the Defendant company.
2. The Defendant is Leona (the “Defendant”), a company registered and located within the DIFC.
Background and the Preceding History
3. The underlying dispute arises over the employment of the Claimant by the Defendant pursuant to an employment agreement dated 31 March 2022 (the “Agreement”).
4. On 11 November 2022, the Claimant filed a claim with the DIFC Courts’ Small Claims Tribunal (the “SCT”) seeking his end of service entitlements in the sum of AED 18,659, the immediate lifting of an absconding order imposed by the relevant authorities, the immediate cancellation of his employment visa, and damages to be quantified in due course.
5. On 18 November 2022, the Defendant filed its Acknowledgment of Service setting out its intention to defend all of this claim.
6. On 13 December 2022, a Consultation was held before SCT Judge Hayley Norton, however the parties were unable to reach a settlement.
7. In line with the rules and procedures of the SCT, this matter was referred to me for determination at a hearing held on 27 December 2022 (the “Hearing”).
The Claim
8. The Claimant submits that he was employed by the Defendant as a ‘Senior Accountant’ pursuant to the Agreement.
9. On 28 September 2022, the Claimant tendered his resignation by way of a letter. As per the Agreement, the Claimant was required to serve a 30 days’ notice period which was due to end on 28 October 2022.
10. On 9 November 2022, the Claimant submits that he received a letter from the Defendant’s legal representatives stating that the Defendant had obtained an absconding order imposed against the Claimant on 25 October 2022.
The Defence
11. The Defendant submits that the Claimant, as per the Agreement, is obliged to serve a 30-day notice period. However, the Claimant failed to serve the notice period and ceased communication with the Defendant. On 25 October 2022, due to the Claimant’s absence and failure to facilitate a handover of company belongings, the Defendant submitted that it then filed an abscondment claim with the relevant government authorities.
12. In addition, the Defendant submits that, within the duration of the Claimant’s notice period, it became aware that the Claimant had commenced employment with a direct competitor, namely Leonidas Ltd (DIFC) which, the Defendant submits, is a breach of both employment and immigration laws as well as the post-termination restrictions that are detailed in the Agreement. The Defendant submits it, therefore, applied for and secured an absconding order on 25 October 2022 in order to protect its assets while reserving its right to seek an injunction to enforce the Agreement’s post termination restrictive covenants.
13. The Defendant provides that the Claimant is not entitled to the payment in lieu of a notice period as he did not serve any notice post his resignation.
Discussion
14. This dispute is governed by DIFC Law No. 4 of 2021 (Employment Law Amendment Law) (hereafter the “DIFC Employment Law”) and is to be considered in accordance with the relevant Agreement.
15. The Claimant’s claims are set out above, and I shall discuss each claim in detail below.
Payment In lieu of Notice Period
16. On 11 October 2022, the Defendant sent the Claimant a “Formal Notice of Breach of Legal Obligations”. As stated therein, the Claimant was expected to perform his normal duties remotely during his contractually agreed 30 day notice period.
17. The Claimant submits that he worked during his notice period in the exact same manner as he had worked before. The Claimant submits that he received no instructions to complete work during this period, and the Defendant had no registered office for him to attend. The Claimant submits that he was available and willing to work if instructed, and the Defendant has not submitted any evidence disputing this.
18. The Defendant provided a memo dated 4 October 2022 (the “Memo”) circulated to its employees which reads as follows:
“This Memo constitutes my formal response to your letters dated 28 September 2022. Henceforth, every Employee or senior management is legally bound to comply with the mandates under the Applicable UAE Laws. Including but not limited to the Applicable Formal 30 (Thirty) Days Notice (based on the signed Employment Contracts) period from the date of your resignation along with a proper full proof handover of the work tasks & all the company properties or assets subject to the profile & actual work each of you were engaged in”. [sic]
19. The Claimant failed to provide any evidence that he complied with the Memo or any evidence of any handover made during that period. The Claimant has also failed to exhibit any steps he had taken during his notice period towards the handover, as the Claimant was supposed to have been serving his notice period during the period the Memo was circulated.
20. Therefore, I am of the view that the Claimant has failed to provide evidence demonstrating that he had carried out his duties as normal during the notice period. As such, I find that the Claimant is not entitled to his payment in lieu of the notice period. I dismiss this claim henceforth.
Payment In Lieu of Accrued but Untaken Vacation Leave
21. As set out in the Agreement, the Claimant’s total salary was AED 14,000 per month. The Claimant also sought within the Claim Form, payment in lieu of 13 accrued but untaken vacation days in the amount of AED 4,659.
22. The Defendant did not dispute this amount or provide any evidence of the days the Claimant has taken as vacation during his tenure with the Defendant.
23. Article 28(1) of the DIFC Employment Law reads as follows:
“where an Employee’s employment is terminated, the Employer shall pay the Employee an amount in lieu of Vacation leave accrued but not taken up to and including the Termination date calculated in accordance with Article 28(3)”.
24. Article 16(1)(g) of the DIFC Employment Law reads as follows:
“An Employer shall keep records of the following information: (g) the dates of Vacation Leave taken by the Employee and the Daily wages paid by the Employer in respect thereof and the Vacation Leave balance owing”.
25. In light of the abovementioned article, and in the absence of any evidence provided by the Defendant to refute the Claimant’s entitlements to this amount, I find that the Claimant is entitled to the sum of AED 4,659 in lieu of accrued but untaken vacation leave.
Handover
26. The Claimant submitted a witness statement as part of his Claim stating that, he has in his possession copies of Du and Empower bills and an expired cheque from Empower for the Defendant.
27. The Claimant also adds that he never received a company laptop, phone and any other property apart from those stated above.
28. Therefore, the Claimant shall return to the Defendant the Du and Empower bills, and the expired Empower cheque.
Abscondment and Visa Cancellation
29. The Defendant submits that it had applied for an absconding claim to protect its assets. The Defendant failed to follow the proper procedure to do so, and the Defendant chose to file an absconding claim to impose a travel ban on the Defendant without providing sufficient reasons and following the right process.
30. The abscondment procedure is to be used in relation to violations of the UAE’s immigration laws, which can be solved by Government Services. For violations of any other nature, an employer who wishes to impose a travel ban on an employee must seek the appropriate recourse to do so through the relevant channels.
31. The employment relationship between the Claimant and the Defendant ended on 28 October 2022, being the last day of the contractually agreed notice period and therefore the Claimant’s visa should have been cancelled accordingly in light of the fact that there is no existing employment relationship between the parties.
32. For the reasons set out above, I find that the Defendant shall proceed to lift the absconding claim imposed on the Claimant and cancel the Claimant’s employment visa henceforth.
Damages
33. In relation to the Claimant’s claim for damages, I find that the Claimant has failed to quantify the amount of damages he has sought. Therefore, I will not discuss or award any damages.
34. In relation to the Claimant’s request for penalties under Article 19 of the DIFC Employment Law, the relevant Article reads as follows:
“An Employer shall pay an Employee, within fourteen (14) days after the termination date: all Remuneration, excluding, where applicable, any additional payments deferred in accordance with Article 18(2)”.
35. The Claimant failed to quantify the penalties within the Claim Form therefore, I dismiss the Claimant’s claim for damages and penalties.
Conclusion
36. In light of the aforementioned, it is hereby ordered that the Defendant shall pay the Claimant the total sum ofAED 4,659.
37. The Defendant shall cancel the Claimant’s employment visa and lift the absconding order imposed on the Claimant.
38. The Claimant shall return to the Defendant the Du and Empower bills, and the expired Empower cheque.
39. The Claimant’s other claims shall be dismissed.
40. The Defendant shall pay the Claimant the Court fee in the sum ofAED 367.50.