Langer v Laqueta [2022] DIFC SCT 042 (18 April 2022)

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URL: http://www.bailii.org/ae/cases/DIFC/2022/DCT_042.html
Cite as: [2022] DIFC SCT 042

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Langer v Laqueta [2022] DIFC SCT 042

April 18, 2022 SCT - JUDGMENTS AND ORDERS

Claim No. SCT 042/2022

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 MAHA AL MHEIRI

BETWEEN

LANGER

Claimant

and

LAQUETA

Defendant


Hearing :29 March 2022
Further Submissions :7 April 2022
Judgment :18 April 2022

JUDGMENT OF H.E JUSTICE MAHA AL MHEIRI


UPON this Claim being filed on 9 February 2022

UPON a Hearing having been held before H.E. Justice Maha Al Mheiri on 29 March 2022, with the Claimant and the Defendant’s representative in attendance

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 total sum of AED 22,443.69.

2. The Defendant shall settle the overstay fines imposed on the Claimant directly to the relevant Government department.

3. The Defendant shall pay the Claimant the Court fee in the sum of AED 448.87.

Issued by:
Ayesha Bin Kalban
SCT Judge and Registrar
Date of issue: 18 April 2022
At: 4pm

THE REASONS

The Parties

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

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

Background and the Preceding History

3. The Defendant and an entity named Lanza (“Lanza”) outsourced the Claimant as a part-time employee working for the Defendant, working 4 days a week in exchange for a salary in the amount of AED 5,750 to be paid by the Defendant every month to Lanza, from the period of August 2019 to December 2019.

4. On 23 December 2019, the Claimant signed a clearance letter from Lanza setting out that he received all his financial dues and that he no longer works with Lanza.

5. On January 2020, the Claimant started to work for the Defendant as a waiter. The Claimant’s employment visa was delayed in issuance due to the global outbreak of the of the Covid-19 pandemic, whereby multiple entities were required to take preventative measures by closing down its businesses. The Claimant therefore did not work for the months of April 2020 to May 2020.

6. The Claimant went back to work in June 2020, and continued working for the Defendant up until 22 January 2022, where the Claimant received a WhatsApp message requesting that the Claimant stay at home until further direction. The Claimant did not receive any further directions and did not report back to work.

7. On 9 February 2022, the Claimant filed a claim in the DIFC Courts’ Small Claims Tribunal (the “SCT”) claiming various sums set out as follows:

(a) Pending salary payment from January 2020 to January 2022 in the amount of AED 15,600;

(b) Overstay charges due to the Defendant’s failure to finalise his visa in the sum of AED 47,000;

(c) Payment in lieu of accrued but untaken annual leave for 60 days in the amount of AED 6,000;

(d) Payment in lieu of public holidays from 29 July 2019 to January 2022 in the amount of AED 3,600; and

(e) Payment of damages for alleged unfair dismissal in the amount of AED 9,000

8. On 16 March 2022, a consultation was held before SCT Judge Maitha Al Shehhi, however the parties were unable to reach a settlement.

9. In line with the rules and procedures of the SCT, this matter was referred to me for determination, pursuant to a Hearing held on 29 March 2022.

10. After the hearing I requested the Defendant to provide the contract between it and Lanza and all the payment slips for the Claimant. These documents were submitted on 7 April 2022.

The Claim

11. The underlying dispute arises over the employment of the Claimant by the Defendant. The Claimant was hired in January 2020 as a ‘Waitress’ with a monthly salary of AED 3,000 consisting of the following:

(a) Basic Allowance in the sum of AED 1,500;

(b) Accommodation allowance in the sum of AED 750; and

(c) transportation allowance in the sum of AED 750.

12. The Claimant submits that the Defendant failed to finalise his employment contract which therefore delayed the issuance of his visa and thus the incurring of overstay charges. The Defendant also failed to pay the Claimant his full salary, and sometimes would make partial payments of cash throughout the month while providing the Claimant with payment slips to sign.

13. In his submissions, the Claimant provided a breakdown of the amounts that were paid to him by the Defendant and the pending amounts allegedly owed. During his employment period from January 2020 to January 2022, excluding April to May 2020, the Claimant contends that he should have been paid the amount of AED 69,000. The Defendant paid him AED 53,400, leaving a balance of AED 15,600.

14. The Claimant has also requested vacation leave and public holidays for the same period. The Claimant also submits that when he was prevented from coming to work he was not provided with any reasons for his dismissal, as he claims that the Defendant dismissed him unfairly and without any prior notice or warning.

The Defence

15. During the course of the hearing, the Defendant denied being responsible for the overstay charges as it claims that the was working as a part time employee until January 2022.

16. The Defendant also submits that since the Claimant was a part-time employee within the Defendant, there is no employment relationship that would result in the Defendant being liable to pay the Claimant in lieu of annual leave and public holidays.

17. Therefore, the Defendant submits that the Claimant is only entitled to AED 12,402 which consists of unpaid salaries, which the Defendant admits are owing to the Claimant.

Discussion

18. This dispute is governed by DIFC Law No. 2 of 2019, as amended by DIFC Law No. 4 of 2020 (the “DIFC Employment Law”) in conjunction with the relevant Employment Contract.

19. I shall set out each of the Claimant’s claims below and provide my determination as to whether the Claimant is entitled to these claims.

Employment Contract

20. The Defendant argues that the Clamant was a part-time employee and is not qualified to receive any benefits of an employee other than his monthly salary as he is not under the Defendant’s visa nor was he an employee of the Defendant.

21. After review of the submissions provided by both parties the Court acknowledges that the Claimant was a part-time employee for the year of 2019 with Lanza, in 2020 the Claimant was no longer Lanza’s employee and has been working for the Defendant continuously from January 2020 to January 2022.

22. It is the Defendant’s obligation to sort out the employment contract and visa for any employee working for their company, and in the situation that it fails to meet its obligation as an employer, it must bear the consequences.

23. As the Defendant failed to obtain an employment visa for the Claimant, the Defendant shall settle the overstay charges imposed on the Claimant directly to the relevant government department.

24. The Court shall also consider the offer letter dated 1 June 2021, signed by the Claimant with the Defendant’s Stamp to be the Claimant’s Employment Contract (“Employment Contract “) in conjunction with the DIFC Employment Law.

Salaries

25. The Claimant claims that he is entitled to salaries from January 2020 to January 2022 in the sum of AED 15,600.

26. The Defendant in response argues that the Claimant is only entitled to the sum of AED 12,402 as a final settlement of his employment.

27. The Defendant has provided salary slips from 2021 and 2022. The salary slips were not consistent and there were gaps between payments. I have reviewed the slips and calculated the payments, and have found that the Defendant only paid the Claimant the sum of AED 14,000.

28. Article 16(c) 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;”

29. I will rely on the Claimant’s submissions in relation to the pending salary amounts, from January 2020 to January 2022, and find that the Claimant is entitled to AED 69,000. As per the Claimant’s calculations, the Defendant only paid AED 53,400. The remaining amount is therefore AED 15,600.

30. As the Claimant worked only until 21 January 2022, as per the WhatsApp message received by the Defendant, the Claimant is not entitled to be paid for the whole month of January and the 10 days that he did not work will be deducted from the final amount.

(AED 3,000 x 12/260 = 138.46 x 10 = AED 1,384.6).

AED 15,600 – 1,384.6 = AED 14,215.4

31. I find that the Defendant failed to maintain a consistent record of the salary payments made to the Claimant. Therefore, I find that the Claimant is entitled to his unpaid salaries in the sum of AED 14,215.4.

Payment in lieu of untaken annual leave

32. The Claimant claims an amount of AED 6,000 as the amount accrued against his untaken 60 days of annual leave accrued for the year 2020 until 22 January 2022. The Claimant claims this pursuant to Clause 2 of the Employment Contract, which reads as follows:

“30 days paid annual leave and an Air Ticket to country of citizenship every two years.”

33. Article 27 of the DIFC Employment Law sets out that:

“Vacation Leave

(a) Subject to Article 30, an Employee who has been employed for at least ninety (90) days is entitled to paid Vacation Leave of twenty (20) Work Days in each Vacation Leave Year.

(b) An Employee is entitled to be paid their Daily Wage during Vacation Leave.

(c) An Employee is entitled to carry forward up to five (5) Work Days of accrued but untaken Vacation Leave into the next Vacation Leave Year for a maximum period of twelve (12) months after which any unused Vacation Leave shall expire.

(d) Vacation Leave is exclusive of Public Holidays to which an Employee is entitled.

(e) Unless otherwise agreed in writing by an Employee, and subject to Article 28(1), an Employee cannot receive payment in lieu of Vacation Leave.

(f) Unless otherwise agreed by an Employer, Vacation Leave cannot be converted to Sick Leave if an Employee is sick during any period of Vacation Leave.

Compensation in lieu of Vacation Leave

(1) Where an Employee's employment is terminated, the Employer shall pay the Employee an amount in lieu of Vacation Leave accrued but not taken up to and including the Termination Date calculated in accordance with Article 28(3).

(2) In the event that the Employee has taken more Vacation Leave than has accrued at the Termination Date, the Employer shall be entitled to deduct an amount calculated in accordance with Article 28(3) from any payments due to the Employee on the Termination Date.

(3) Compensation in lieu of Vacation Leave, or any amount owed by the Employee in respect of excess Vacation Leave taken, shall be calculated using the Employee's Daily Wage at the Termination Date.”

34. I agree with the Claimant’s submission that he is entitled to payment in lieu of accrued and untaken annual leave days, however, I disagree with the Claimant’s calculation for the number of days that he can carry forward to 2022. The Claimant is only entitled to carry forward 10 days from 2021. As found above, the Claimant’s last day with the Defendant is 22 January 2022, therefore, any annual leave that he has accrued will be calculated until that day.

35. As such, the Claimant is entitled to payment in lieu of 10 days for the year 2021, and 1.76 days in 2022. As such, I find that the Claimant shall be paid the amount of AED 2,746.18 (AED 3,000 x 12/260 = 138.46 x 11.76 = AED 1,628.29).

- 30 days per year / 12 months = 2.5 days per month

- 2.5 / 30 days = 0.08 x 22 days in June = 1.76

36. The Defendant failed to provide a record of the Claimant’s taken leave and the remaining balance of accrued days. Therefore, I find that the Claimant is entitled to his claim of AED 1,628.29 in relation to annual leave.

Public Holidays

37. I turn to the Claimant’s claim for payment in lieu of accrued but untaken public holidays where the Claimant claims the sum of AED 3,600.

38. Article 16(g) of the DIFC Employment Law states the following:

“Payroll Records

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

(f) the dates of Public Holidays taken by the Employee and the Daily wage paid by the Employer in respect thereof”

39. The Defendant failed to provide the records of the public holidays taken by Claimant. Therefore, I find that the Claimant is entitled to the sum of AED 3,600 in relation to untaken public holiday.

Unfair Dismissal

40. The Claimant claims the sum of AED 9,000 as three months’ compensation for unfair dismissal and submits that he was dismissed via WhatsApp message on 22 January 2022.

41. The Defendant submits that the Claimant was terminated from the Defendant’s company due his attendance and attitude at the workplace. There is no evidence provided by the Claimant to demonstrate that he was dismissed unfairly. Even if there was evidence to prove such a claim, there is no remedy under the DIFC Employment Law to provide compensation to an employee who was unfairly dismissed.

42. As per Article 62(1) of the DIFC Employment Law

“62. Minimum notice periods

(1) An Employer or an Employee may terminate an Employee’s employment without cause in accordance with this Article.

(2) Subject to Articles 62(3), 62(4), 62(6) and 63, the written notice required to be given by an Employer or Employee to terminate the Employee’s employment shall not be less than:

(a) seven (7) days, if the period of continuous employment of the Employee is less than three (3) months, including any period of Secondment;

(b) thirty (30) days, if the period of continuous employment of the Employee is in excess of three (3) months but less than five (5) years, including any period of Secondment; or

(c) ninety (90) days, if the period of continuous employment of the Employee is in excess of five (5) years, including any period of Secondment.”

43.“An Employer or an Employee may terminate and Employee’s employment without cause in accordance with this Article”. The only condition for such a termination is that the employer shall provide the employee with a notice period.

44. As the Claimant was terminated without any evidence or provided with written cause of termination, the Court is of the view that the criteria set out above has been met and the Claimant shall be entitled to 1 month notice in accordance with the DIFC Employment Law and the notice period that is applicable if an employee continues working for 2 continuous years.

45. Therefore, I find that the Claimant is entitled to AED 3,000 for payment in lieu of a one-month notice period.

Conclusion

46. In light of the aforementioned, I find that the Defendant shall pay the Claimant the total sum of AED 22,443.69.

47. I am of the view that, as the Claimant has been successful in some of his claims, he is entitled to recover some of the court fee applicable to the filing of this case. The Defendant shall therefore pay to the Claimant the amount of AED 448.87for the Court fee.

48. The Defendant shall settle the overstay fines imposed on the Claimant directly to the relevant government department.


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