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You are here: BAILII >> Databases >> The Dubai International Financial Centre >> Naimah v Nabil [2024] DIFC SCT 296 (24 October 2024) URL: http://www.bailii.org/ae/cases/DIFC/2024/DSCT_296.html Cite as: [2024] DIFC SCT 296 |
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Naimah v Nabil [2024] DIFC SCT 296
October 24, 2024 SCT - JUDGMENTS AND ORDERS
Claim No: SCT 296/2024
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 OF DIFC COURTS
BEFORE H.E. JUSTICE NASSIR AL NASSERBETWEEN
NAIMAH
Claimant
and
NABIL
Defendant
Hearing : 17 October 2024 Judgment : 24 October 2024 JUDGMENT OF H.E JUSTICE NASSIR AL NASSER
UPON this Claim being filed on 23 July 2024 (the “Claim”)
AND UPON a hearing having been held before H.E Justice Nassir Al Nassir on 17 October 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 Defendant shall pay the Claimant the sum ofAED 200,500plus interest at the rate of 9% per annum from the date of the judgment until the date of full payment.
2. The Defendant shall pay the Claimant the DIFC Court filing fees in the sum ofAED 4,010.
Issued by:
Hayley Norton
SCT Judge and Assistant Registrar
Date of issue: 24 October 2024
At: 1pm
THE REASONS
The Parties
1. The Claimant is Naimah (the “Claimant”), an individual filing a claim against the Defendant regarding her employment at the Defendant’s company.
2. The Defendant is Nabil (the “Defendant”), a company registered and 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 23 June 2021 (the “Contract”).
4. On 23 July 2024, the Claimant filed her claim with the DIFC Courts’ Small Claims Tribunal (the “SCT”) claiming commission due to her for the last quarter of 2023, estimated at 1% of the net profit of the company, equivalent to AED 401,000, with interest from the due date at the rate of 5% per annum as well as legal costs.
5. On 21 August 2024, the Defendant filed an Acknowledgment of Service with the intention to defend the claim.
6. In line with the rules and procedures of the SCT, this matter was referred to me for determination, pursuant to the Hearing held on 17 October 2024. The Claimant and the Defendant’s representative attended.
The Claim
7. The Claimant submits that the parties initially agreed that the Claimant’s monthly salary would be AED 20,000, but subsequently settled at AED 17,000 as of October 2023 On 5 July 2023, the parties agreed on additional commission at the rate of 1% of the net profit.
8. The Claimant submits that she resigned, and her last working day was 13 November 2023. As a result, the Claimant asked the Defendant to pay the commission due to her for the last quarter of 2023, estimated at the sum of AED 401,000 according to the agreed 1% of the net profit for the month of October 2023, and 13 days of November 2023. This was in continuation of the commissions she previously received for the first, second and third quarters of 2023.
9. The Claimant submits that she has contacted the Defendant and they promised her that her commissions would be approved soon. She then received a screenshot of an email from the Defendant’s owner stating that he will pay her the owed commission in the second week of January 2024. However, the Claimant submits that he did not pay.
10. The Claimant asserts that after many attempts, the Defendant responded explaining that she is not entitled to commissions due to deterioration in her performance over during the few months before her resignation. The Claimant submits that this contradicts the recommendation certificate praising the Claimant’s outstanding performance.
11. Therefore, the Claimant filed a claim, claiming the following:
(a) An order directing the Defendant to pay the sum of AED 401,000 which is 1% of the net profits from 1 October 2023 to 13 November 2023, plus interest at the rate of 5% per annum, from the due date.
(b) The Defendant to pay the court fees and legal costs.
(c) Any further relief from the courts.
Defence
12. The Defendant submits that the Claimant has alleged that the amount of AED 401,000 claimed as commission by the Claimant for the last quarter of 2023, calculated at a rate of 1% of net profits was agreed upon between the Claimant and the Defendant. However, the Claimant has failed to evidence the alleged agreement confirming that the Claimant is contractually entitled to commissions at a rate of 1% of the net profit. Accordingly, there is no documented evidence provided by the Claimant supporting the Claimant’s entitlement to the relief sought.
13. The Defendant submits that any commission payments made to the Claimant, including the 0.5% previously paid, were made solely on a discretionary basis by the Defendant’s management team in recognition of the Claimant’s performance as an employee within the Defendant’s company and the Defendant’s overall profitability. These payments do not constitute a contractual obligation and were not guaranteed for any future periods.
14. The Defendant also provided “Employee Real Estate Bonus Scheme” Agreement (the “Agreement”) which is signed by the Claimant. The Agreement provides that the bonus is discretionary upon the company’s sole assessment.
15. Therefore, the Defendant submits that the Claimant’s claim shall be dismissed.
Findings
16. This dispute is governed by DIFC Law No. 4 of 2021 (Employment Law Amendment Law) (hereafter the “DIFC Employment Law”) in conjunction with the Contract.
17. The Employment Contract does not reflect the bonus scheme or refer to a pay out of any bonuses. The only agreement before the Court is the Agreement presented by the Defendant as Employee Real Estate Bonus Scheme that is signed by the parties. Therefore, any argument that is not supported by evidence shall not be considered by the Courts as the evidence presented suggests otherwise.
18. The Agreement provides that the bonus is discretionary by the company and is not a mandatory bonus although it might have been paid out previously. The Agreement also provides that the Claimant is entitled to 0.5% net profit as bonus, if the company approves.
19. The Claimant provided a WhatsApp communication between the Claimant and the Defendant’s Asset Manager, Nakir, which provides that an approval from the Chairman of the company is required to pay bonuses. The message continues to say that the Claimant’s bonus was approved by the Chairman, and it is a matter of time until it is transferred. However, the Whatsapp conversation does not reflect the 1% claimed by the Claimant.
20. On 14 December 2023, the Whatsapp conversation provides that the Chairman has said that he will pay the Claimant on the second week of January 2024, however, the exact number of the payment was not mentioned.
21. Therefore, I find that the Claimant is entitled to a bonus as it was approved by the Chairman, however, not at the percentage claimed by the Claimant.
22. The evidence before me is that the Claimant is entitled to 0.5% of the total net profit as a bonus. The Claimant claims a bonus for October 2023 to 13 November 2023 being her last working day in the sum of AED 401,000. However, due to the evidence provided, the Claimant is entitled to 0.5% and not 1%. I find that the Claimant is entitled to the sum of AED 200,500, plus interest at the rate of 9% per annum until the date of full payment in accordance with Practice Direction No. 4 of 2017.
23. The SCT does not award legal costs as each party should represent himself. However, I find that the Claimant is entitled to the Court fees in the sum of AED 4,010.
Conclusion
24. In the light of the above, I find that the Claimant is entitled to the sum of AED 200,500 plus interest on judgment at the rate of 9% per annum until the date of full payment in accordance with Practice Direction No. 4 of 2017.
25. The Claimant is also entitled to the court fees in the sum of AED 4,010.
