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You are here: BAILII >> Databases >> The Dubai International Financial Centre >> Nelson v Nigel [2024] DIFC SCT 043 (01 April 2024) URL: http://www.bailii.org/ae/cases/DIFC/2024/DSCT_043.html Cite as: [2024] DIFC SCT 043, [2024] DIFC SCT 43 |
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Nelson v Nigel [2024] DIFC SCT 043
April 01, 2024 SCT - JUDGMENTS AND ORDERS
Claim No. SCT 043/2024
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
In the name of His Highness Sheikh Mohammed Bin Rashid Al Maktoum,
Ruler of DubaiIN THE SMALL CLAIMS TRIBUNAL OF DIFC COURTS
BEFORE H.E. JUSTICE NASSIR AL NASSERBETWEEN
NELSON
Claimant
and
NIGEL
Defendant
Hearing : 27 March 2024 Judgment : 1 April 2024 JUDGMENT OF H.E JUSTICE NASSIR AL NASSER
UPON this Claim being filed on 26 January 2024
AND UPON a hearing having been held before H.E Justice Nassir Al Nassir on 27 March 2024, 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 147,461.32.
2. The Defendant shall pay the Claimant the Court fee in the sum ofAED 5,061.36
Issued by:
Hayley Norton
SCT Judge and Assistant Registrar
Date of issue: 1 April 2024
At: 1pmTHE REASONS
The Parties
1. The Claimant is Nelson (the “Claimant”), an individual filing a claim against the Defendant regarding his employment at the Defendant company.
2. The Defendant is Nigel (the “Defendant”), a company registered and located 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 1 August 2019 (the “Employment Agreement”).
4. On 26 January 2024, the Claimant filed his claim with the DIFC Courts’ Small Claims Tribunal (the “SCT”) seeking his end of service entitlements and penalties under Article 19 of the DIFC Employment Law in the sum of AED 350,683.56.
5. On 2 February 2024, the Defendant filed its acknowledgement of service with the intention to defend all of the claim.
6. On 20 February 2024, the Claimant amended his claim and reduced the claim value to the sum of AED 245,076.56 claiming only Article 19 penalties.
7. On 20 February 2024, a consultation was held before SCT Judge Delvin Sumo, however the parties failed to amicably settle the claim.
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 27 March 2024 (the “Hearing”). The Claimant and the Defendant’s representative attended.
The Claim
9. The Claimant commenced employment with the Defendant on 1 August 2019 with a monthly salary of AED 45,000. On 7 July 2023 the Claimant was terminated, and his last working day was on 6 September 2023.
10. The Claimant filed a claim claiming his end of service entitlements in the sum of AED 105,607 and late payment penalties under Article 19 of the DIFC Employment Law in the sum of AED 245,076.56 (“Penalties”).
11. On 2 February 2024, the Defendant settled the Claimant’s end of service entitlements. On 20 February 2024, the Claimant amended his claim only seeking payment of penalties.
12. The Defendant submits by way of an email dated 6 September 2023, the Claimant stated as follows:
“Thank you again for agreeing to 4 months of salary instead of 2 months, and retaining both my medical and visa until the end of December 2023.
If at all possible, could we please delay issuing my end of service till the end of year to coincide with the cancellation of my visa and medical?”
13. The Claimant submits that as of 18 September 2023, via WhatsApp and emails, he has been communicating with the Defendant to finalise his end of service entitlements. However, there were differences between the Claimant’s calculation on the basis that he and Mr. Niles agreed payment of 4 months’ salary in July 2023 and the calculation provided by Mr. Neil .
14. On 2 November 2023, the Claimant signed the End of Service letter accepting the calculation made by Mr. Neil.
15. On 10 November 2023, the Claimant sent a formal email to the Defendant in relation to his end of service entitlements. Since then, the Claimant was not paid until 2 February 2024.
Finding
16. Article 19 of the DIFC Employment Law provides the following:
“Payments following termination
(1) An Employer shall pay to an Employee, within fourteen (14) days after the Termination Date:
(a) all Remuneration, excluding, where applicable, any Additional Payments deferred in accordance with Article 18(2);
(b) where applicable, any Gratuity Payment that accrued prior to the Qualifying Scheme Commencement Date under Article 66(1) not transferred to a Qualifying Scheme under Article 66(6);
(c) a Daily Wage for each day of accrued Vacation Leave not taken; and
(d) all outstanding amounts due in respect of the Employee under Article 66(7) not yet paid to a Qualifying Scheme.
(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.”
17. Having reviewed the above, I find that, pursuant to Article 19(1), the Defendant should have paid the Claimant his end of service entitlements on 20 September 2023 (being 14 days after the last working day 6 September 2023). However, on 18 September 2023, the Claimant formally requested for his end of service entitlements to be expedited.
18. The Claimant was provided his end of service entitlements by Mr. Neil at that stage but was arguing that he and Mr. Niles agreed verbally to be paid 4 months’ salary.
19. I find that the Claimant has failed to provide any evidence of his verbal agreement with Mr. Niles . In addition, Mr. Niles has not confirmed such agreement either in writing or by informing Mr. Neil .
20. In addition, I find that the period which the Claimant and Mr. Neil were in negotiations regarding the end of service final calculations shall not be considered as a delay as there is no evidence of the Claimant’s allegation that he is entitled to 4 months’ salary, which was the crux of the negotiations at the end of September and October 2023.
21. On 2 November 2023, the Claimant signed the End of Service Letter reflecting the calculations presented by Mr. Neil for September and October 2023.
22. Therefore, in accordance with Article 19(1) of the DIFC Employment Law, I shall consider 14 days from 2 November 2023, namely, 16 November 2023 as the date by which the Defendant should have paid the Claimant his end of service entitlements. After which, the Defendant is liable to pay the Claimant penalties in accordance with Article 19(2) of the DIFC Employment Law.
23. The Claimant is entitled to a daily wage for 71 days from 17 November 2023 to 26 January 2024, being the date the Claimant filed this claim before the Court.
24. The daily wage shall be calculated as following: AED 45,000 x 12 months/260 days = 2,076.92 x 71 days = AED 147,461.32 as the penalties the Claimant is entitled to be paid.
Conclusion
25. In light of the aforementioned, I find that the Defendant shall pay the Claimant the total sum ofAED 147,461.32.
26. The Defendant shall pay the Claimant the Court fee in the sum ofAED 5,061.36