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You are here: BAILII >> Databases >> The Dubai International Financial Centre >> Noah v Norval [2024] DIFC SCT 173 (02 July 2024) URL: http://www.bailii.org/ae/cases/DIFC/2024/DSCT_173.html Cite as: [2024] DIFC SCT 173 |
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Noah v Norval [2024] DIFC SCT 173
July 02, 2024 SCT - JUDGMENTS AND ORDERS
Claim No. SCT 173/2024
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
BETWEEN
NOAH
Claimant
and
NORVAL
Defendant
Hearing : 26 June 2024 Judgment : 2 July 2024 JUDGMENT OF H.E. JUSTICE MAHA AL MHEIRI
UPON this Claim being filed on 2 May 2024
AND UPON a second hearing having been listed before H.E. Justice Maha Al Mheiri on 26 June 2024, with the Claimant absent and the Defendant’s representative attending (the “Hearing”)
AND UPON reading the submissions and evidence filed and recorded on the Court file
IT IS HEREBY ORDERED THAT:
1. The Defendant shall pay the Claimant the sum of AED 863.98.
2. The Defendant shall pay the Claimant’s airfare .
3. The Defendant shall Cancel the Claimant’s visa.
4. The Defendant shall pay the Claimant the Court fee in the sum of AED 367.50.
Issued by:
Delvin Sumo
SCT Judge and Assistant Registrar
Date of issue: 2 July 2024
At: 11amTHE REASONS
The Parties
1. The Claimant is Noah (the “Claimant”), an individual filing a claim regarding his end of service entitlement at the Defendant company.
2. The Defendant is Norval (the “Defendant”), a restaurant located in 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 3 November 2023 (the “Employment Contract”). The Claimant was hired in the position of Head Waiter with a monthly salary of AED 3,600, the Claimant commenced working on 7 December 2023.
4. On 1 April 2024, the Claimant resigned from his position with 1 month’s notice. On 21 April 2024, the Defendant discovered that the Claimant took tips from the tip box without prior permission, as a result the Claimant was terminated with immediate effect.
5. On 2 May 2024, the Claimant filed a claim in the DIFC Courts’ Small Claims Tribunal (the “SCT”) claiming various sums for:
(a) 21 days remuneration for the month of April to the amount of AED 2,520.
(b) Payment in lieu of untaken annual leave.
(c) End of Service gratuity.
(d) Outstanding tips for the month of April 2024.
(e) Airfare for the Claimant .
(f) Cancelation of visa.
6. The parties met for a Consultation with SCT Judge Delvin Sumo on 29 May 2024 but were unable to reach a settlement. In line with the rules and procedures of the SCT, this matter was referred to me for determination, pursuant to a Second Hearing held on 26 June 2024 with the Claimant absent and the Defendant’s representative attending.
7. At the Hearing, the Defendant confirmed that the company paid the Claimant the 21 days salary in April 2024, and agreed to settle the Claimant’s Airfare ticket and cancel his visa.
Discussion
8. This dispute is governed by DIFC Employment Law No. 4 of 2021 (the “DIFC Employment Law”) in conjunction with the relevant Employment Contract.
Payment in lieu of untaken annual leave
9. The Claimant claims 12 days of untaken annual leave. The Defendant submits that the Claimant is not entitled to any annual leave as he is under probation period.
10. I disagree with the Defendant’s submission; during the probation period the Claimant cannot avail annual leave, but the accrual of annual leave is carried out gradually throughout the year, and that upon the termination of an employment relationship, any amounts owed would be pro-rated against the amount of time passed during the course of that year. Clause 13 of the Claimant’s Employment Contract states:
“13. Annual Leave Entitlement: In addition to United Arab Emirates public holidays (as declared for the private sector) the Employee will be entitled to 30 (thirty) calendar days of annual leave”
11. The Claimant commenced working on 7 December 2023 and his last working day was 21 April 2024. As such, I find that the Claimant shall be paid the amount of AED 863.98 (AED 3,600x12/260 = 166.15 x 5.2 days = AED 863.98).
Outstanding tips for the month of April 2024.
12. Upon review of the Employment Contract, I find it clear that the Claimant has no contractual entitlement to be paid the tips and service charge, as such the Claimant’s claim is dismissed.
End of Service gratuity
13. Article 19 of the DIFC Employment Law stipulates the following:
“(1) An Employer shall pay to an Employee, within fourteen (14) days after the Termination Date:
a. all Remuneration…
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)”
14. Article 66 of the DIFC Employment Law states, where relevant, that:
“(1) An Employee who is not required to be registered with the GPSSA under Article 65(`), and who completes continuous employment of at least one (1) year with their employer, before or after the Qualifying Scheme Commencement Date is entitled to a Gratuity Payment for any period of service prior to the Qualifying Scheme Commencement Date on the termination of their employment. …
(2) An Employee’s Gratuity Payment shall be calculated as follows:
(a) an amount equal to twenty one (21) days of the Employee’s Basic Wage for each year of the first five (5) years of service prior to the Qualifying Scheme Commencement Date; and
(b) an amount equal to thirty (30) days for the Employee’s Basic Wage for each additional year of service prior to the Qualifying Scheme Commencement Date. ….
…
(7) From the Qualifying Scheme Commencement Date an Employer shall, on a monthly basis, pay to a Qualifying Scheme, for the benefit of each Employee who is not an Exempted Employee, an amount equal to as least the Core Benefits, which shall be calculated as follows:
(a) five point eight three percent (5.83%) of an Employee’s Monthly Basic Wage for the first (5) years of an Employee’s service, inclusive of any period of employment of Secondment served to prior to the Qualifying Scheme Commencement Date; and
(b) eight point three three percent (8.33%) of an Employee’s Monthly Basic Wage for each additional year of service…”
15. The abovementioned clauses provide that an employee is required to work a minimum period of 1 year for him to be eligible to receive his gratuity payment in accordance with the DIFC Employment Law. As such the Claimant’s claim for his gratuity payment shall be dismissed.
16. The Claimant seeks to recover the fee that he has paid to the Court for the filing of this Claim. I am of the view that, as the Claimant has been unsuccessful on some his claims, he should be entitled to recover a portion of the fee in respect of the claims for which he has been successful. This will amount to AED 367.50.
Conclusion
17. In light of the aforementioned, I find that the Defendant shall pay the Claimant the sum of AED 863.98 for untaken annual leave, and AED 367.50 as to costs. The total amount owed to the Claimant is therefore AED 1,231.48
18. The Defendant shall be awarded the sum of a one-way/return air ticket , arriving at the Defendant’s chosen international airport.
19. The Defendant will not be entitled to, nor will he be eligible to request, any amount compensating for tips and/or service charge accrued during his employment, or end of service gratuity payments.
