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Adolf v Abia [2010] DIFC SCT 006

Adolf v Abia [2010] DIFC SCT 006

December 30, 2010

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THE JUDICIAL AUTHORITY OF THE DUBAI INTERNATIONAL FINANCIAL CENTRE

In the name of His Highness Sheikh Mohammad Bin Rashid Al Maktoum, Ruler of Dubai

IN THE SMALL CLAIMS TRIBUNAL

BETWEEN

ADOLF

Claimant

v

ABIA

Defendant


JUDGMENT OF SCT JUDGE SHAMLAN AL-SAWALEHI


UPON hearing the Claimant and the Defendant’s representative on November 2010 and reviewing all documents and evidence attached and submitted to this Court.This claim having been called for hearing before the Small Claims Tribunal Judge Shamlan Al-Sawalehi

IT IS ORDERED THAT:

1. The Defendant pay to the Claimant the sum of AED 52,526.00.
2. The Defendant pay to the Claimant the sum of AED 800.00 being half of the DIFC Courts’ fee.

Parties and Representation

1. The Claimant, Adolf, is a former employee of the Defendant.
2. The Defendant, Abia, is a company incorporated in the DIFC and represented by a shareholder/owner of the Defendant.

Background and Reasons

3. The Claimant lodged a Claim Form seeking AED 80,052.91 in unpaid salary, outstanding commission for the year of 2010, money owned in respect of leave payment, airline ticket, less part payment and the DIFC Courts’ fees being AED 800.00.
4. As supporting documents, the Claimant attached the following:
(a) A copy of the Employment Agreement signed between the Claimant and the Defendant plus Appendix (1) attached with it (the “Employment Agreement”).
(b) A copy of the Revised Terms and Conditions Letter issued by the Defendant dated 14 November 2008.
(c) A copy of the computation of outstanding dues.
(d) Copies of pay slips issued by Defendant.
(e) Copies of email communications with the Defendant.
5. The Defendant denies all of this claim and has requested that the claim be dismissed for the following reasons:
(a) The Claimant is not an employee of the Defendant as he did not fulfil all mandatory requirements based on the DIFC Rules & Regulations and as stipulated in the Employment Agreement as he did not transfer his sponsorship to the Defendant during the probation period.
(b) Despite the fact that the Claimant has never been under the Defendant’s sponsorship, the Claimant has benefitted from all benefits like any other employee and has always received a “salary” from an accounting perspective.
(c) The Claimant was advised that the Defendant would no longer distribute any commissions for the year 2010 because of financial hardship and that it has the right to do so as stipulated in the “Employment Agreement”.
(d) The Claimant was advised about the fact that the Defendant is in liquidation and no longer active since the 21 March 2010.
6. The parties to this case took part in a consultation meeting but no settlement was reached.
7. A SCT hearing was held on 23 November 2010. The Claimant attended by phone call and the Defendant’s representative attended at the Court.
8. The Claimant responded to the Defendant’s arguments by relying on the Employment Agreement as well as all pay slips issued by the Defendant and indicated that his email access and accounts were revoked by the Defendant on 23 September 2010 without legal notice. He also argued that the first time he heard that the Defendant is in liquidation was during consultation of this claim.
9. The Claimant failed to prove to this Court that:
(a) The Defendant is bound by an Employment Agreement or any other documents to pay the outstanding commission for the year 2010.
(b) The Claimant has worked for the Defendant for the entire month of September.
10. The Defendant failed to prove to this Court that:
(a) “Abia” is in liquidation and has no legal liability to the Claimant since 21 March 2010.
(b) The Claimant’s Employment Agreement was terminated before 5 September 2010.
(c) The Claimant is not entitled to a Termination Notice as he has not breached the Terms and Conditions of his Employment Agreement or any act of gross negligence or misconduct.
(d) The Claimant is not entitled to a payment in lieu of vacation days earned.
11. This Court examined all the submitted documents and delivered statements by the parties and found that the Claimant was a full time employee with the Defendant since February 2008 and his Employment Agreement ended by the Defendant’s email on September 2010 without a notice period. Therefore, the Claimant is entitled to all employees’ benefits as set out in his Employment Agreement as well as in DIFC Employment Law No.4 of 2005 as follows:
(a) The Claimant is entitled to a payment in lieu of vacation leave days for thirty (30) days as he stated during the final hearing which is in the sum of AED 13,000.00.
(b) The Claimant is entitled to a payment in lieu of Termination Notice of One (1) month of the Claimant’s last salary which is in the sum of AED 13,000.00.
(c) The Claimant is entitled to a payment in lieu of wages of Five (5) days of the month of September which is in the sum of AED 2,166.00.
(d) The Claimant is entitled to a payment in lieu of an airline return ticket to his country (India) in economy class which is in the sum of AED 1,500.00.
(e) The Claimant is entitled to gratuity payment of Twenty One (21) days which is in the sum of AED 22,860.00.

 

H.E. Justice Omar Almuhairi
Judge
Date of Issue: 30 December 2010
At: 1pm

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