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You are here: BAILII >> Databases >> The Dubai International Financial Centre >> Nemi v Nessim [2024] DIFC SCT 030 (03 May 2024) URL: http://www.bailii.org/ae/cases/DIFC/2024/DSCT_030.html Cite as: [2024] DIFC SCT 30, [2024] DIFC SCT 030

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Nemi v Nessim [2024] DIFC SCT 030

May 03, 2024 SCT - JUDGMENTS AND ORDERS

Claim No: SCT 030/2024

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

NEMI

Claimant

and

NESSIM

Defendant

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Hearing :	29 April 2024
Judgment :	3 May 2024

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JUDGMENT OF SCT JUDGE MAITHA ALSHEHHI

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UPON the claim having been filed on 17 January 2024 and amended on 26 January 2024 (the “Claim”)

AND UPON the Defendant’s defence dated 25 January 2024 (the “Defence”)

AND UPON the Claimant’s reply to the Defence dated 14 February 2024

AND UPON the Order with Reasons of SCT Judge Maitha AlShehhi dated 5 March 2024 that the DIFC Courts have jurisdiction to hear and determine this Claim

AND UPON the Defendant’s further submissions dated 25 April 2024

AND UPON a hearing having been listed before SCT Judge Maitha AlShehhi on 29 April 2024 with the Claimant 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 Claimant’s claims are dismissed.

2. Each party shall bear its own cost.

Issued by:
Hayley Norton
SCT Judge and Assistant Registrar
Date of issue: 3 May 2024
At: 9am

THE REASONS

Parties

1. The Claimant is Nemi(the “Claimant”), an individual filing a claim regarding his employment at the Defendant company.

2. The Defendant is Nessim (the “Defendant”), a company registered in the DIFC, Dubai, the UAE.

The Claim

3. The Claimant is seeking his end of service entitlements following his resignation from the Defendant company on 6 April 2023.

4. As per the offer letter dated 11 May 2022, the Claimant’s joining date was 1 June 2022 in the position of Manager – Market Development (Middle East, and Africa) (the “Offer Letter”).

5. The Claimant submits that he served his notice period of two months with his last working day falling on 31 May 2023.

6. In line with the Offer Letter, the Claimant is of the view that he is entitled to the amount of AED 27,993.60 which comprises his gratuity payment in the amount of AED 11,193.6, payment in lieu of accrued but untaken annual leave in the amount of AED 12,800 and an airfare ticket allowance for himself and his family in the amount of AED 4,000.

7. Due to the Defendant’s failure to pay the outstanding amount on time, the Claimant is requesting the Court to impose penalties for late payment in accordance with Article 19 of the DIFC Employment Law.

8. The Claimant states that he is eligible for payment of 26 days of accrued but untaken annual leave and submits that the Defendant’s Human Resources system (“HRMS”) is faulty as it does not reflect the correct days, as he alleges that he did not utilise any of his leave days during his notice period. To support this, the Claimant relies on WhatsApp conversations between himself and his line manager to demonstrate that he was indeed working during the days he was marked absent on the HRMS.

9. The Claimant contends that although his employment visa was issued on 22 June 2022, his first official day is still considered to be 1 June 2022 in accordance with the Offer Letter. Therefore, as he completed one year of employment, he asserts that he is entitled to receive his gratuity.

10. In respect of the airfare allowance, the Claimant argues that the payment received from the Defendant for the relocation of his family to Dubai is a different benefit than the airfare ticket allowance mentioned in the Offer Letter. As such, he is entitled to it.

The Defence

11. The Defendant denies the Claimant’s Claim in full and submits that it is unreasonable for such a request to arise seven months after departing the company.

12. In the Defendant’s Defence dated 25 January 2024, it requested the Court to dismiss the Claim as it is barred by limitation pursuant to Article 10 of the DIFC Employment Law.

13. The Defendant takes the view that the Claimant is not entitled to receive his gratuity payment on the basis that his last day was 30 May 2023, and he did not complete one year of employment as his employment visa was issued on 22 June 2022 and his employment was conditional upon its issuance as per the Offer Letter:

“Your employment offer is subject to your obtaining and maintaining a valid work permit and such other permission, license or registration as may from time to time be necessary to enable you to carry out your duties and continue your employment.”

14. The Defendant adds that the Claimant is not entitled to payment in lieu of 26 days of leave as he utilised some of his annual leave days during his notice period as evidenced in the company’s HRMS system which tracks the employees’ attendance as opposed to WhatsApp which is an unreliable source of information and does not capture any formal attendance.

15. With regards to the Claimant’s claim for airfare tickets, the Defendant states that 2 months prior to the Claimant’s resignation date, it had already paid the expenses of bringing the Claimant’s family to Dubai from India. Therefore, it asserts that the Claimant cannot claim the airfare ticket once more as it is an annual benefit which he availed in that year before his resignation.

16. Furthermore, the Defendant contends that the Claimant failed to make any formal request for the airfare ticket benefit on the HRMS system as it is the company’s policy to re-imburse such benefit once a request is submitted which is a known policy to the Claimant.

17. The Defendant maintains its position that all of the sums were paid out to the Claimant, and he is not entitled to receive any further payment in line with the terms of the Offer Letter and the DIFC Employment Law.

Applicable Law

18. This dispute is governed by DIFC Employment Law No. 4 of 2021 (the “DIFC Employment Law”) in conjunction with the relevant Offer Letter.

Discussion

19. Before determining whether the Claimant is entitled to receive his end of service benefits, the Court must first consider whether this Claim can be adjudicated or not.

Is the Claim time barred by virtue of Article 10 of the DIFC Employment Law?

20. Termination Date is defined in the DIFC Employment Law as follows:

“(a) in relation to an Employment Contract terminated by notice under Article 62(2), the date on which the notice period expires”.

21. The parties are in dispute on the termination date and whether it falls on 30 May 2023 or 31 May 2023. Although the Defendant’s relieving letter states 30 May 2023, I find the Claimant’s last working day to be 31 May 2023 (the “Termination Date”) as per the Defendant’s email dated 20 December 2023 which reads as follows:

“Hi Nemi

You were released from Nessim on 31st May 2023. It is unexpected to receive your request for additional dues after seven months since your departure. Our records confirm that upon your exit, you received your full and final settlement along with a relieving letter, and there were no outstanding dues from our side.

Thanks”

22. Taking into account the Termination Date, Article 10 of the DIFC Employment Law sets out the limitation period for which an employee can bring their claim before the Court, and is clear in its wording:

“10. Limitation Period

Subject to Article 61(2), a Court shall not consider a claim under this Law unless it is brought to the Court within six (6) months of the relevant Employee's Termination Date.”

23. In the Claimant’s submissions, he requested the Court to rely on Article 61(2) of the DIFC Employment Law to extend the six-month period which reads as follows:

“(2) A Court shall not consider a claim under this Part 9 unless it is brought to the Court before the end of:

(a) the period of six (6) months beginning with the later of the date on which this Law comes into force and the date of the act, or failure to do something, to which the complaint relates; or

(b) where a complainant satisfies the Court that there are circumstances which justify disapplying Article 61(2)(a), such other period as the Court considers reasonable.”

24. I am of the view that Article 61(2) of the DIFC Employment Law is not applicable as Part 9 pertains to non-discrimination acts which the Small Claims Tribunal does not have jurisdiction to deal with as well as the fact that these acts are not the subject of this Claim as this Claim pertains to payment of pending dues.

25. Under Article 10 of the DIFC Employment Law, the Claimant was required to bring any claim within 6 months of 31 May 2023 (i.e. 31 November 2023). However, the Claimant filed his Claim on 17 January 2024. As such, the Claimant's Claim is 1 month and 17 days out of time.

26. Although the Claimant submits that he was following up with the Defendant regarding the payment of his final settlement while trusting the Defendant to release the amount, he alleges that he could not have filed the Claim earlier as he was busy accompanying his ill mother during her ongoing medical treatment.

27. While the situation is unfortunate and I sympathise with the Claimant, the fact remains that the Claimant’s actions do not supersede the limitation period set out in Article 10 of the DIFC Employment Law.

28. Considering the above-mentioned, I find that the Claimant’s claims are time-barred having exceeded the 6 months’ limitation period from the Claimant’s Termination Date in line with Article 10 of the DIFC Employment Law.

29. Therefore, the Court is unable to determine the Claimant’s eligibility for his end of service entitlement.

30. It follows that the Claimant’s claims be dismissed.

Findings

31. The Claimant’s claims are time barred and therefore shall be dismissed.

32. Each party shall bear its own cost.