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You are here: BAILII >> Databases >> The Dubai International Financial Centre >> Nivan v Nysi [2024] DIFC SCT 406 (10 January 2024) URL: http://www.bailii.org/ae/cases/DIFC/2024/DSCT_406.html Cite as: [2024] DIFC SCT 406

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Nivan v Nysi [2023] DIFC SCT 406

January 10, 2024 SCT - JUDGMENTS AND ORDERS

Claim No. SCT 406/2023

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 OF DIFC COURTS
BEFORE H.E. JUSTICE NASSIR AL NASSER

BETWEEN

NIVAN

Claimant

and

NYSI

Defendant

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Hearing :	2 January 2024
Judgment :	10 January 2024

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JUDGMENT OF H.E JUSTICE NASSIR AL NASSER

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UPON this Claim being filed on 13 October 2023;

AND UPON a hearing having been held before H.E Justice Nassir Al Nasser on 2 January 2024, with the Claimant in attendance and the Defendant absent;

AND UPON reviewing the documents and evidence filed and recorded on the Court file;

AND PURSUANT TORule 53.61 of the Rules of the DIFC Courts (“RDC”);

IT IS HEREBY ORDERED THAT:

1. The Defendant shall pay the Claimant the total sum ofAED 217,766.40.

2. The Defendant shall pay the Claimant the Court fee in the sum ofAED 4,355.32.

Issued by:
Hayley Norton
SCT Judge and Assistant Registrar
Date of issue: 10 January 2024
At: 8am

THE REASONS

The Parties

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

2. The Defendant is Nysi (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 Offer Letter dated 1 July 2022 (the “Agreement”).

4. On 13 October 2023, the Claimant filed a claim with the DIFC Courts’ Small Claims Tribunal (the “SCT”) seeking the payment of unpaid salaries in the sum of AED 219,088.78.

5. The Defendant failed to acknowledge the claim or file a defence.

6. On 1 December 2023, a consultation was held before SCT Judge Hayley Norton, at which the Claimant and the Defendant’s representative attended, however, the parties failed to settle the Claim.

7. In line with the rules and procedures of the SCT, this matter was referred to me for determination, pursuant to a hearing held on 2 January 2024 (the “Hearing”). The Claimant attended and the Defendant was absent although served.

The Claim

8. The Claimant commenced employment on 1 July 2022 with a monthly salary of AED 50,000. As per the Agreement, the Claimant’s salary increased on 1 July 2023 to AED 80,000.

9. On 13 October 2023, the Claimant filed a claim seeking payment of his salaries for July, August and September 2023 in the sum of AED 190,000, plus the gratuity payment of AED 60,666.71. The Claimant submits that he has deducted the sum of AED 31,000 from this amount as he has sold furniture in the office to offset against his claimed sum. Therefore, the remaining balance in dispute is AED 219,666.71.

The Defence

10. The Defendant failed to attend the hearing nor did it submit any defence.

Discussion

11. This dispute is governed by DIFC Law No. 4 of 2021 (Employment Law Amendment Law) (hereafter the “DIFC Employment Law”) in conjunction with the relevant Agreement.

Salaries

12. The Claimant submits that he is entitled to salaries in the sum of AED 190,000 for July, August and September 2023.

13. The Claimant submits that he deducted the value of the furniture from the office against the sums owed for his unpaid salary.

14. The Defendant failed to provide any evidence to demonstrate that the Claimant received his full salaries and that no deductions had been made. The Defendant failed to provide any written submissions or supporting evidence.

15. Article 16(c) and (e) of the DIFC Employment Law states the following:

“Payroll Records

(1) An Employer shall keep record of the following information:

(c) the Employee’s remuneration (gross and net, where applicable), and the applicable pay period;

(e) each deduction made from the Employee’s remuneration and the reason for it;”

16. In light of my findings above, I find that the Claimant is entitled to his salaries in the total sum of AED 190,000.

End of Service Gratuity and Contributions to Qualifying Scheme

17. 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…”

18. The Claimant’s employment with the Defendant was for the period of 1 year and 2 months. As such, the Claimant would be entitled to contributions for the period between 1 July 2022 to 30 September 2023, being his last working day.

Between 1 July 2022 to 30 June 2023:

The Claimant’s monthly basic wage is AED 72,000 x 5.83% being the minimum contribution amount defined by the Employment Law = AED 4,197.60 per month x 1 year = AED 50,371.20.

2 months from the period of 1 July 2023 to 30 September 2023 = AED 4,197.60 x 2 months = AED 8,395.20.

19. Therefore, in accordance with the above, the Claimant’s entitlement in regards to contributions that should have been made by the Defendant to a qualifying scheme is AED 58,766.40.

20. The Claimant submits that he has deducted the sum of AED 31,000 from his claim as this amount has already been offset by virtue of the office furniture that he took in his possession. Therefore, the Claimant is entitled to the total sum of AED 217,766.40.

Conclusion

21. In light of the aforementioned, I find that the Defendant shall pay the Claimant the total sum ofAED 217,766.40.

22. The Defendant shall pay the Claimant the Court fee in the sum ofAED 4,355.32.