Claim No. SCT 549/2019
THE DUBAI INTERNATIONAL FINANCIAL CENTRE
COURTS
In the name of His Highness Sheikh Mohammed Bin Rashid Al Maktoum,
Ruler
IN THE SMALL CLAIMS
TRIBUNAL
BEFORE SCT
JUDGE
BETWEEN
LOSTON
Claimant
and
LIUNA MARKET RESTAURANT AND LOUNGE
Defendant
| Hearing | : 5 March 2020 |
|---|---|
| Judgment | : 11 March 2020 |
JUDGMENT OF SCT JUDGE AND
DEPUTY REGISTRAR
UPONthe Claim Form being filed on 4 December 2019
AND UPONa Consultation being held on 21 January 2020 before SCT Judge
AND UPONa Default Order being issued against the Defendant on 22 January 2020
AND UPONan Appeal Notice being filed by the Defendant on 30 January 2020 seeking to set aside
AND UPONa Consultation being held on 11 February 2020 before SCT Judge Delvin Sumo with the Claimant and the Defendant’s representative attending
AND UPONthe parties failing to reach a settlement at the Consultation
AND UPONa Hearing being held on 5 March 2020 before SCT Ayesha Bin Kalban
AND UPONthe Defendant failing to attend the hearing although served notice of the hearing date
AND UPONreviewing all documents and evidence submitted on the Court
AND PURSUANT TORule 53.61 of the DIFC Courts
IT IS HEREBY ORDERED THAT:
1. The Defendant shall pay the Claimant the amount of AED 59,460.
2. The Defendant shall continue to pay the Claimant penalties under Article 18 of the DIFC
3. The Defendant shall pay the Claimant the Court fees in the sum of AED 479.18.
Issued by:
Ayesha Bin Kalban
SCT Judge and
Deputy Registrar
Date of issue: 11 March 2020
At: 1pm
THE REASONS
The Parties
1. The Claimant is Loston (the Claimant), an individual filing
2. The Defendant is Liuna Market Restaurant and Lounge (the “Defendant”), a company registered in the DIFC located in DIFC, Dubai.
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 11 April 2018 (the “Employment Contract”) with a joining date set out to be 15 April 2018.
4. The Claimant resigned and served her last working day on 21 April 2019.
5. On 4 December 2019, the Claimant filed a claim in the DIFC Courts’ Small Claims Tribunal
6. On 21 January 2020, a Consultation was listed before SCT Judge Delvin Sumo with the Claimant in attendance. The Defendant failed to appear although served notice of the claim.
7. On 22 January 2020, a Default Order was issued against the Defendant, however the Defendant filed an Appeal Notice on 30 January 2020, stating that it was not aware of the Consultation date. The Order was set aside on 4 February 2020.
8. The parties met for a second Consultation with SCT Judge Delvin Sumo on 11 February 2020 but were unable to reach a settlement.
9. On 5 March 2020, a hearing was listed before me, at which only the Claimant attended, and the Defendant was absent although served notice of the Hearing. I therefore ordered that this matter be determined on the papers, in light of the Defendant’s habit of absence from previously listed court
The Claim
10. The Claimant’s case is that she was employed with the Defendant as a ‘Hostess’ from 15 April 2018. The Claimant resigned and served her last working day on 21 April 2019, and submits that she did not receive her end of service
11. The Claimant seeks payment in the sum of AED 3,360 applicable to the 21 days in April 2019 in which she worked for the Defendant, the sum of AED 1,540 for 7 days of accrued but untaken annual leave, one month pay applicable to her notice period in the sum of AED 4,800, as well as penalties accruing on a daily basis in accordance with Article 18 of the DIFC Employment Law.
12. The Claimant does not make a claim for her end-of-service gratuity in the Claim Form, nor did she make a claim for this entitlement during the course of the Hearing.
The Defence
13. The Defendant failed to attend the hearing although provided notice of the hearing date. With the exception of the Appeal Notice dated 30 January 2020, the Defendant has not made any form of submissions in this Claim, and has not put forward any defence.
14. In reviewing the case file for any submissions made by the Defendant, it appears that the Appeal Notice dated 30 January 2020 contained a scanned image of a document that appears to be a cancellation form for the cancellation of the Claimant’s visa. The form is set out to the effect that the Claimant’s cancellation would be carried out with pending dues, however a written inscription contains wording to the effect that the Claimant had received her dues, accompanied with a signature. The Defendant relied on this document in applying to set aside a default order made against it, and appeared at a Consultation after the application to set aside was granted.
Discussion
15. The DIFC Courts and the SCT have jurisdiction
16. This dispute is governed by the DIFC Employment Law in conjunction with the relevant Employment Contract. It is prudent to note that the DIFC Law No. 3 of 2012 is the applicable law in this matter, seeing as the Claimant resigned in April 2019, i.e. prior to the issuing of the DIFC Law No. 2 of 2019.
17. In review of the file and in considering the Defendant’s multiple recorded absence in these proceedings, I have had considerable difficulty in identifying whether the document submitted by the Defendant in support of the Appeal Notice dated 30 January 2020 can constitute a formal defence to the Claim. The Claimant, in her claim form, has submitted that she was forced to sign the cancellation document in order to proceed with the cancellation of her visa.
18. Furthermore, it is questionable that such a form carrying two contradictory statements by the Claimant would be taken into consideration by the authority that carries out visa cancellation. This fact, in addition to the fact that the Defendant did not appear to provide proof of payment of the Claimant’s dues or to submit proof that the Claimant had signed the form of her own volition, leads me to conclude that the Claimant has not received her dues and therefore should be entitled to them.
19. In light of the above finding, I find that the Claimant be entitled to the sum of AED 9,700 for her 21 days’ salary, 7 days of accrued but untaken annual leave and one month’s notice.
20. In regards to the Claimant’s claim for penalties pursuant to Article 18 of the DIFC Employment Law, I set out the relevant article which reads as follows:
“18. Payment where the employment is terminated
(1) An employer shall pay all wages and any other amount owing to an employee within fourteen (14) days after the employer or employee terminates the employment.
(2) If an employer fails to pay wages or any other amount owing to an employee in accordance with Article 18(1), the employer shall pay the employee a penalty equivalent to the last daily wage for each day the employer is in arrears.”
21. In accordance with the DIFC Courts precedent set by the judgment of Justice Roger Giles in Asif Hakim Adil v Frontline Development Partners Limited [2014] DIFC CFI 015 and the judgment of H.E. Justice Ali Al Madhani in Pierre-Eric Daniel Bernard Lys v Elesco Limited [2014] DIFC CFI 012, the Claimant is entitled to Article 18 penalties running from 14 days after her official date of resignation until the date payment is made. Accordingly, the Defendant has been in arrears since 5 May 2019 (14 days following the Claimant’s last working day on 21 April 2019) and the penalty began to accrue at the daily rate of AED 160 from this date.
22. As of the date of this Judgment, the penalty is owed for 311 days from 5 May 2019 until 11 March 2020, totaling AED 49,760 (311 x 160), with the daily penalty of AED 160 continuing to accrue until the date of payment.
Conclusion
23. In light of the aforementioned, I find that the Defendant shall pay the Claimant the sum of AED 59,460.
24. The Defendant shall continue to pay the Claimant penalties under Article 18 of the DIFC Employment Law at a daily wage of AED 160 until the date of full payment.
25. The Defendant shall pay the Claimant the DIFC Court fee in the sum of AED 479.18.
Issued by:
Ayesha Bin Kalban
SCT Judge and Deputy Registrar
Date of issue: 11 March 2020
At: 1pm