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Callan v Callie [2012] DIFC SCT 008

Callan v Callie [2012] DIFC SCT 008

September 2, 2012

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THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

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

IN THE SMALL CLAIMS TRIBUNAL OF DIFC COURTS

BEFORE SCT JUDGE SHAMLAN AL SAWALEHI

Between

CALLAN

Claimant

v

CALLIE

Defendant


JUDGMENT OF SCT JUDGE SHAMLAN AL SAWALEHI


UPON hearing the Claimant and the Defendant

AND UPON reading the submissions and evidence filed and recorded on the Court file

IT IS ORDERED THAT:

1. The Defendant pay the Claimant the sum of AED 2,690.
2. All other claims are dismissed.

THE REASONS

Parties

1. The Claimant Mr Callan is a former employee of the Defendant.
2. The Defendant is Callie, in the DIFC.
Background and Preceding History

1. The Claimant was employed by the Defendant in Dubai on 2 January 2012 as Administration Assistant until his Employment Contract was terminated on 4 March 2012. On 13 March 2012 the Claimant was offered the sum of AED 2,690 as a final settlement by the Defendant.

2. The Claimant requested that the Defendant pay him what he believed he was entitled to under his Employment Contract and DIFC Employment Law. The Defendant rejected the Claimant’s request, which consequently led the Claimant to file this application before the Court claiming relief for the following:
(a) The expenses for his accommodation and medical treatment in Saudi Arabia during the period of 19 February 2012 to 2 March 2012;
(b) His travel expenses to Saudi Arabia;
(c) Compensation in lieu of allegedly unauthorised deductions from his salary;
(d) Compensation in lieu of the airfare from his home town (in India) to Dubai and the airfare back to India;
(e) Compensation for unfair dismissal.
3. No settlement was reached by the parties at the end of the consultation and, consequently, the case was sent for adjudication. On 20 June 2012 I heard both parties’ submissions.

Particulars and Defence

4. On 19 March 2012 the Claimant submitted written Particulars of Claim with supporting documents and evidence that included airfare, medical and accommodation bills. On 3 May 2012 the Defendant submitted a written Defence with supporting documents that included the Employment Contract, copies of “Warning for Absence” emails and final settlement of the Claimant’s dues.
5. In his Particulars of Claim the Claimant argued that, after his appointment he had been obliged to visit Saudi Arabia as part of the job during the period of 19 February 2012 to 2 March 2012. The Defendant had provided him with the flight expenses, but the expenses for his accommodation in Saudi Arabia had been deducted from his accommodation allowance. After returning to Dubai on 2 March 2012, he had asked the Defendant’s Accounts Officer Mr S to pay him back the expenses for his accommodation in Saudi Arabia as it was difficult for him to afford accommodation both in Dubai and Saudi Arabia, but the Defendant he did not agree. As a result of that, the Claimant had informed the Defendant that he would return to work only after the expenses in question had been settled and he did not go to the office the next working day. The Defendant had subsequently sent him an email to the effect that the company had assumed that he had resigned from his job and had already deducted his visa expenses for Dubai from his salary. The Claimant further argued that he had been unfairly terminated, for which he sought compensation, in addition to his Employment Contract benefits.
6. In its Defence, the Defendant argued that the Claimant had been specifically hired to work in Saudi Arabia, as per the terms of his Employment Contract, but that he had been initially brought to Dubai to work temporarily. He had then been relocated, as previously agreed, to Saudi Arabia and had been provided with the cost of two nights’ stay, plus transport expenses and AED 419 as an advance salary. Consequently, Saudi Arabia had become his work place from that time, and it was for him to take care of his accommodation there and cancel his Dubai accommodation. The Claimant had started working in Saudi Arabia, but his manager had not been happy with his performance, and as a result of which the Claimant had been asked to return to Dubai and report to the Defendant’s office the next day whilst still under his probation period. The Claimant had decided not to report to the Defendant’s office and had not attended work for two consecutive days; neither had he responded to the Defendant’s calls nor informed the company why he was not attending work. The Defendant had, therefore, been under the impression that the Claimant had resigned by not attending the office without prior approval, and mentioning several times before that he would resign. The Defendant had sent him an intimation to this effect on 4 March 2012. The Defendant further argued that as per the terms of the Employment Contract, it was permissible to deduct visa expenses in the event that the contract had been terminated by the employee. Moreover, there was no provision in the contract for the reimbursement of the airfare from an employee’s home country to his place of work.

Finding

7. I have examined the Claimant’s Employment Contract and I am of the view that the Claimant’s Employment Contract was terminated by the Claimant himself by not reporting to his employer’s office in Dubai on several occasions without providing any valid or reasonable reasons. Therefore, it was open to the Defendant to execute certain provisions of the Employment Contract, namely the following:

(a) Article 7.3 (regarding entitlement to allowances): “If the employee is not under a local hire contract, an allowance on account of a one way economy class air ticket from the place he is working to his home country on termination of the employment, unless the employee resigns …”. On the basis of this provision the Defendant can refuse to pay the Claimant compensation in lieu of airfare either from Dubai to his home town (in India) or from India to Dubai.
(b) Article 13.3: “in case of termination by employee during the validity of residence visa after the date of issuance, the employee has to undertake the residence visa charges/fees himself…”. In the light of this provision the Defendant can deduct the Claimant’s visa expenses for Dubai from the latter’s final settlement.

Compensation

8. In respect of compensation for the Claimant’s accommodation, medical and travel expenses, I have examined all documents submitted by both parties and I am in agreement with the final settlement provided by the Defendant on 13 March 2012. Therefore the Claimant is only entitled to the sum of AED 2,690 under his Employment Contract and DIFC Employment Law.
9. As regards compensation for unfair dismissal, I refer to the case of Kteily Ghassan Elias v Julius Baer (Middle East) Ltd [2006-29] DIFC.C.L.R.9, in which the Chief Justice Michael Hwang held the following: “The DIFC presently has no statutory law on unfair dismissal, and this consideration does not therefore apply to the way in which the implied terms of mutual trust and confidence can develop in this jurisdiction. While I am aware that the DIFC Employment Law (No.4 of 2005) contains a residual power for the Director of Employment Standards to issue regulations under Article. 63(1)(g) in respect of “the maximum compensation for discrimination or unfair dismissal”, this says no more than that laws relating to unfair dismissal may be introduced at some stage in the DIFC , which would be the case even if Article. 63(1)(g) did not exist.”

 

Issued by:
Mark Beer
Registrar
Date of Issue: September 2012

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