Claim No: SCT 233/2023
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
BEFORE SCT JUDGE MAITHA ALSHEHHI
BETWEEN
MUSTAK
Claimant
and
MUBRAG
Defendant
| Hearing : | 5 December 2023 |
|---|---|
| Judgment : | 11 December 2023 |
JUDGMENT OF SCT JUDGE MAITHA ALSHEHHI
UPON the claim having been filed on 20 June 2023
AND UPON the Defendant’s defence dated 5 September 2023
AND UPON the Order of SCT Judge Hayley Norton dated 19 October 2023 confirming that the DIFC Courts has jurisdiction to hear and determine this claim
AND UPON a hearing having been listed before SCT Judge Maitha AlShehhi on 5 December 2023, with the Claimant’s representative and the Defendant’s representative in attendance (the “Hearing”)
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 amount ofAED 150,000.
2. The Defendant shall pay the Claimant the DIFC Courts’ filing fee in the amount ofAED 2,999.99.
Issued by:
Hayley Norton
SCT Judge and Assistant Registrar
Date of issue: 11 December 2023
At: 2pm
THE REASONS
Parties
1. The Claimant is Kaouther Mustak (the “Claimant”), an individual filing a claim regarding her employment at the Defendant company.
2. The Defendant is Mubrag (DIFC) (the “Defendant”), a company registered in the DIFC, Dubai, the UAE.
The Claim
3. The Claimant submits that, pursuant to the offer letter 1 October dated 2012 (the “Offer Letter), she worked in the position of Public Relations Officer for the Defendant and its different subsidiaries and branches from October 2012 until her termination in December 2022.
4. The Claimant submits that the termination letter dated 29 December 2022 provided her with two days of notice period and her last working day was 31 December 2022 (the “Termination Letter”).
5. The Claimant is seeking her end of service entitlements in the amount of AED 150,000 following her alleged abusive termination from the Defendant company.
6. At the Hearing, the Claimant’s representative confirmed that it is requesting the Defendant to pay the gratuity payment only.
7. The Claimant submits that the Defendant refused to pay the end of service entitlements on the premise that the Claimant was never an employee of the Defendant’s DIFC company which prompted the Claimant to file a case with the Dubai Courts. The Dubai Courts issued a ruling on 31 May 2023 that the DIFC Courts has territorial jurisdiction over this claim.
8. The Claimant submits that the matter of jurisdiction has already been dealt with in the Order of SCT Judge and Assistant Registrar Hayley Norton dated 19 October 2023 (the “19 October Order”) and reiterates that the DIFC Courts has jurisdiction to hear and determine this claim.
9. The Claimant concedes that she has been paid her salary regularly pursuant to the Offer Letter and was also furnished with health insurance, DIFC staff access card and PRO pass which are issued by the DIFC authorities.
The Defence
10. The Defendant rejects the Claimant’s claim in full.
11. The Defendant submits that the Claimant is not an employee of the Defendant company in the DIFC, and that she works for the different branches as a freelancer and not an employee. Therefore, she is not entitled to receive any end of service entitlement.
12. In support of this, the Defendant submitted a document which suggests that the Defendant company does not have any employees enrolled with the DIFC branch.
13. The Defendant submits that the Claimant does not have an employment contract, work permit nor labour card from the Defendant company in the DIFC. Also, she does not have an office space nor does she come on a daily basis and therefore she cannot be an employee.
14. The Defendant concedes that the Claimant has been provided with health insurance because management has sympathised with her due to her medical condition.
15. At the Hearing, the Defendant confirmed that it has been paying the Claimant her salaries, however, as a freelancer only. The Defendant also further submits that the salaries are received from different branches as well.
16. The Defendant is of the opinion that given the Claimant is a UAE national, she must have an employment contract and not an Offer Letter to be registered with the General Pension and Social Security Authority (“GPSSA”) to be eligible for any benefits upon termination.
Applicable law
17. This dispute is governed by the DIFC Law No. 4 of 2021 Employment Law Amendment Law (the “DIFC Employment Law”) in conjunction with the Offer Letter.
Discussion
18. On the basis that an employment relationship has already been established, the claim at hand pertains to whether the Claimant is eligible to receive her gratuity payment following her termination.
19. At the Hearing, the Defendant was still seeking to argue that the DIFC Courts lacks jurisdiction. However, by virtue of the 19 October Order, it is concluded that an employment relationship existed between the Claimant and the Defendant and the DIFC Courts has territorial jurisdiction to hear and determine the claim. Therefore, I do not propose on going through this in more detail.
20. The Offer Letter states that the Claimant is eligible for health insurance and was therefore provided with insurance coverage dated 16 June 2021. As per the DIFC Employment Law, an employer is required to maintain health insurance in respect of its employees. As such, I reject the Defendant’s assertation that it was only provided out of sympathy.
21. There is nothing to suggest that the Claimant was terminated for cause and consequently the Defendant should not have terminated her immediately and is therefore in breach of the DIFC Employment Law for failing to provide minimum notice period.
22. The DIFC Employment Law gives an employee the right to receive gratuity payment following termination and, in this case, the Claimant did not receive any benefit upon her termination.
23. Given that the Claimant is a UAE national, Article 65 of the DIFC Employment Law applies which reads as below:
“Pension for UAE and GCC nationals
(1) Where an Employee is a UAE or a GCC national, the Employer shall ensure that the Employee is registered with the GPSSA and shall make the necessary pension contributions in accordance with Federal Law.
(2) An Employee registered with the GPSSA pursuant to Article 65(1) shall not be eligible to receive a Gratuity Payment on the termination of their employment with their Employer.”
24. The employer is responsible for registering the company with the GPSSA and making the relevant payments and contributions for the employer’s/company’s contribution to their respective pension fund. Therefore, the Defendant is in breach of the DIFC Employment Law and Federal laws.
25. Given that the Defendant failed to register the Claimant with the GPSSA, I shall award the Claimant an amount equivalent to what she is entitled for had she been registered.
26. On the basis that the Defendant is a private sector company then its contribution is 12.5% of the salary (2.5% to be paid by the government) while the Claimant’s contribution would be 5% of the salary. As such, the total contribution is 17.5% of the salary.
27. This is calculated as follows:
15,000 x 5/100 = AED 750 employee’s contribution per month;
15,000 x 10/100 = AED 1,500 employer’s contribution per month; and
15,000 x 2.5/100 = AED 375 government’s contribution per month.
Total contribution per month is AED 2,625.
28. The Claimant’s first working day was 1 October 2012 and last working day was 31 December 2022, meaning that she has worked for the Defendant for 10 years and two months.
AED 1,500 per month x 122 months = AED 183,000.
29. Further to the above, the Court can only consider the financial limit sought within the Claim Form which, in this instance, is in the amount of AED 150,000. Therefore, I find that the Defendant is liable to pay the Claimant the amount of AED 150,000.
Findings
30. In light of the aforementioned, I hereby order that the Defendant shall pay the Claimant the amount of AED 150,000 which represents her pension contributions.
31. The Defendant shall pay the Claimant the DIFC Courts’ filing fee in the amount of AED 2,999.99.