Claim No: CFI 038/2012
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
In the name of His Highness Sheikh Mohammad Bin Rashid Al Maktoum, Ruler of Dubai
IN THE COURT OF FIRST INSTANCE
ON APPEAL FROM THE SMALL CLAIMS TRIBUNAL
BEFORE JUSTICE SIR JOHN CHADWICK
|ROYAL INVESTMENT BANK LIMITED
||17 January 2013
||Bushra Ahmed (KBH Kaanuun) for the Appellant
Anna Fomina (Ince & Co Middle East LLP) for the Respondent
||17 January 2013
JUDGMENT OF JUSTICE SIR JOHN CHADWICK
1. This is an Appeal from a Judgment in the Small Claims Tribunal delivered by Judge Shamlan Al Sawalehi on 28 August 2012 in proceedings brought by Mr Friso Buker against Royal Investment Bank Limited (“the Bank”).
2. The proceedings were commenced by a Claim Form issued on 26 June 2012. The amount claimed was USD 42,000 in respect of outstanding contractual salary payments and payments in lieu of notice. The basis of the claim was that Mr Buker was entitled to be paid under an Employment Contract dated 8 February 2012. The Bank is a company organised within the DIFC. It is a regulated company for the purposes of carrying on financial services business.
3. The Employment Contract dated 8 February 2012 was made between the Bank, described there as the employer or the company, and Mr Buker, described there as the employee. It recites that:
“The employer is desirous of employing the employee for the position of Strategic Marketing Manager at Royal Investment Bank Limited in respect of its business in the DIFC, United Arab Emirates, and the employee is desirous of being employed, subject to the following terms and conditions.”
The first of the operative clauses, under the heading “Employment”, is in these terms:
1.1 The employer shall employ the employee and the employee shall serve the employer in the capacity of Strategic Marketing Manager at the employer’s DIFC office.
1.2 The employee will commence employment with the employer on 8 February 2012 [which was the date of the agreement] and this agreement shall continue for a period of an unlimited term unless earlier terminated pursuant to clause 7 hereof and the applicable law, or extended by mutual agreement between the parties.
1.3 The employee shall report to the Director of Investor Relations (Alternative Investments).”
Clause 2 sets out the duties of the employee in his capacity as strategic marketing manager. Clause 3 sets out a number of conditions precedent. Clause 4 sets out the obligations of the employee, including his normal working hours. It provides, as does clause 2.1, that:
“The employee shall be seconded to Bridgehead Administration Limited for one day a week to carry out administrative work.”
Clause 5 contains provisions as to remuneration. Under the heading “Basic salary” clause 5.1 is in these terms:
“5.1 In consideration for the employee working for the employer and observing and performing his duties, covenants and obligations herein contained, the employee shall be paid an annual salary of USD 72,000, the basic salary, payable in 12 equal monthly instalments at the beginning of each month.
5.2 The remuneration payable to the employee under clause 5 may, at the employer’s sole discretion, be reviewed on an annual basis and an increment may be applied to such remuneration according to the merits and contribution of the employee to the employer.
5.3 The employee will be reimbursed for expenses properly incurred on behalf of the employer subject to compliance with the guidelines clearly defined in the employer’s expenses policy and provided that expenses are submitted within 30 days of such expenditure.”
Clause 6 sets out a number of benefits to which the employee is to be entitled; including benefits under the company’s bonus scheme, a return economy class air ticket to the United Kingdom once a year, medical and disability cover and, at the end of a year, a gratuity in accordance with DIFC Employment Law number 4 of 2005. It provides for annual leave and sick pay. Clause 7 contains provisions relating to confidential information. Clause 8 contains a provision intended to safeguard intellectual property rights. Clause 12 deals with termination. It provides that:
“12. The contract may be terminated in any of the following ways —
12.1 Each party shall have the right to terminate this contract provided that three months’ written notice is given to the other party.
12.2 The employer may dismiss the employee without notice of end of service benefits for any gross misconduct of for the following misbehaviour [and then there are set out a number of paragraphs that constitute misbehaviour for that purpose].”
Clause 13 is an “entire agreement” clause:
“13.1 This agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereon.
13.2 No alteration, modification or interpretation hereof shall be binding unless it is in writing and signed by both parties hereto, save for any alteration of the annual salary entitlement of the employment, which shall be made by way of written notification to the annual increment to the employee.”
Clause 14 provides that:
“Any dispute of claim arising under the agreement shall be governed by the DIFC laws and regulations and the employee submits to the exclusive jurisdiction of the DIFC courts.”
On its face, the employment contract between the Bank and Mr Buker is in a conventional from and contains provisions such as would be expected in an employment contract in this field.
4. Mr Buker’s claim is that he commenced the employment on 8 February 2012; and that he carried out the functions required of him as Strategic Marketing Director under the employment contract from that date until 10 June 2012. On 10 June 2012, he was told by the Bank’s Director of Investor Relations — to whom, as the contract provided, he reported — that his contract of employment had been terminated, that he was not to return to work in the Bank’s offices and that he must leave those premises immediately.
5. It is in those circumstances that he claims the sum of USD 42,000: that sum comprises USD 24,000 in respect of his salary — at the rate of USD 6,000 a month from 8 February to 8 June 2012 — and USD 18,000 for the three months’ notice period that he was entitled to have under the termination provisions of the contract.
6. The Bank’s Defence is that, notwithstanding the provisions of that employment contract, it was never under an obligation either to pay salary to Mr Buker or to pay him in lieu of notice. It is said that, on a proper understanding of the circumstances, Mr Buker never became an employee of the Bank.
7. Judge Shamlan Al Sawalehi, sitting in the Small Claims Tribunal, having set out those facts, said this, at paragraph 9 of his judgment:
“In its Defence, the Defendant admitted that there had been a formal signed Employment Contract between the Claimant and the Defendant. However, the Defendant argued that it had not been under any legal obligation to pay the Claimant any employment benefits as the Claimant’s Employment Contract had been signed only as a formality and for a regulatory purpose. The Defendant further argued that the Claimant had been aware of and had actively participated in the negotiations leading up to that arrangement as prior to the Claimant’s Employment Contract a Collaboration Agreement had been signed between the Defendant and Bridgehead Administration Limited (BAL). As per the terms of that agreement, BAL was to take full responsibility for all costs incurred in relation to BAL’s team. Furthermore, it was an implied term of the Employment Contract that all payment obligations of the Defendant under the Employment Contract with the Claimant were to be paid by Bridgehead Administration Limited (BAL).”
8. The judge went on to state that he had reviewed clause 4.4 of the Collaboration Agreement. He set out the first sentence of that clause:
“BAL shall administer the co-operation between RIBL and BAL as set out in this agreement and shall refund RIBL all costs incurred by BAL’s team in relation to employment expenses.”
And he said this:
“I am of the view that the above clause is an express term, which provides that RIBL has a responsibility and an obligation to pay any costs of its outsourcing arrangement with BAL, including the employment expenses of BAL’s team, following which BAL is required to refund and pay back any such costs to RIBL.”
At paragraph 12 of his judgment he concluded:
“Notwithstanding, I have found that the evidence submitted by the Defendant is neither sufficient nor reasonable to establish that the Claimant was not an employee of the Defendant and that he was rather an employee of Bridgehead Administration Limited. In the light of the foregoing, the Claimant should be paid the money due under his Employment Contract by the Defendant in the circumstances in which he had worked in BAL’s team, as had been agreed upon in the terms of clause 4.4.”
So he awarded compensation in the sum of AED 88,149 for the unpaid salary and AED 66,112 as payment in lieu for the three-month notice period.
9. Permission to appeal from that judgment and order was granted by His Excellency Justice Omar Al Muhairi on 8 October 2012.
10. The appeal has been advanced in this court on the basis of four main contentions: (1) that the Small Claims Tribunal misinterpreted clause 4.4 of the Collaboration Agreement; (2) that the written terms of the Employment Agreement were not determinative, given the circumstances in which the parties entered into that agreement; (3) that it is necessary to imply a term into the Employment Agreement that the employee’s right to payment from the Bank is conditional upon the Bank having been funded in respect of that payment by Bridgehead Administration Limited (“BAL”); and (4) that the SCT was wrong to find that the Claimant’s employment terminated on 8 June 2012.
11. The first and underlying issue is whether, and in what circumstances, the court should go behind the very clear terms of the Employment Agreement. As I have explained, the Employment Agreement provides for the employee to be paid an annual salary by the employer; and provides for three months’ notice to be given by the employer if it wishes to terminate the contract (unless there is some reason for summary termination, which has not been alleged in this case).
12. The basis upon which it is said that the clear terms of the employment contract are not determinative is that, under the law in the DIFC (applying principles developed in the law as it has evolved in the United Kingdom), it is necessary to ask, in employment cases, whether the true relationship into which the parties intended to enter is reflected in the terms of the document which they signed. Two cases were cited to the Court in this context.
13. First, the decision of the Court of Appeal of England and Wales in Protectacoat Firthglow Ltd v Szilagyi  EWCA Civ 98. The principal issue in that case was whether the employment judge had been right to hold that a partnership agreement made between Mr Szilagyi and a Mr Squires and a service agreement between Protectacoat Firthglow and the partnership were sham. The employment judge, without having heard any evidence from Mr Squires, held that those documents were sham; and that the true relationship under which Mr Szilagyi carried out work for Protectacoat Firthglow was that of employer and employee.
14. There are a number of features which distinguish that case and the case now before this Court. First, that in Protectacoat
it was the employee who was seeking to allege that the agreements were sham. Second, there was a finding of sham by the employment judge. And third, that the issue arose in the context of the employee seeking to enforce employment rights under the relevant legislation. The Court of Appeal, on the facts in that case, held that the employment judge had been entitled to find the documents a sham. Lady Justice Smith, delivering the judgment of the Court, said this, at paragraph 57:
“In a case involving a written contract, the tribunal will ordinarily regard the documents as the starting point and will ask itself what legal rights and obligations the written agreement creates. But it may then have to ask whether the parties ever realistically intended or envisaged that its terms, particularly the essential terms, would be carried out as written. By the essential terms, I mean those terms which are central to the nature of the relationship, namely mutuality of obligation . . .”
The court found that, on the facts in that case, there was no real partnership between Mr Szilagyi and Mr Squires; and that the employment judge had been entitled to reach the conclusion that the arrangement was a sham.
15. The second case to which the Court was referred was the recent decision in the Supreme Court of the United Kingdom in Autoclenz Ltd v Belcher & Ors  UKSC 41, also reported at  4 All ER 745. In that case the respondents were individuals who provided car cleaning services to the customers of Autoclenz. They had entered into written contracts and other documents with Autoclenz in which they were described as subcontractors rather than employees. The issue was whether, notwithstanding the description of them as subcontractors in the written documents, they were workers within regulation 2(1) of the United Kingdom National Minimum Wage Regulations 1999 (SI 1999/584) and the Working Time Regulations 1998; and so were entitled to be paid a minimum wage and receive statutory paid leave.
16. The Supreme Court, in a judgment delivered by Lord Clarke, held that the documents which had been signed did form part of the contract between the parties; and that, if the documents contained the whole of the relationship between them, it would be difficult, if not impossible, to bring that relationship within the relevant definitions in the regulations. Lord Clarke referred, at paragraph 23 of his judgment, to the well-known definition of “sham” in the judgment of Lord Justice Diplock in Snook v London and West Riding Investments Ltd
 2 QB 786,  1 All ER 518:
“I apprehend that, if [‘sham’] has any meaning in law, it means acts done or documents executed by the parties to the ‘sham’ which are intended by them to give to third parties or to the court the appearance of creating between the parties legal rights and obligations different from the actual legal rights and obligations (if any) which the parties intend to create. But one thing, I think, is clear in legal principle, morality and the authorities . . . that for acts or documents to be a ‘sham’, with whatever legal consequences follow from this, all the parties thereto must have a common intention that the acts or documents are not to create the legal rights and obligations which they give the appearance of creating.”
Lord Clarke went on to say this:
“I would accept the submission made on behalf of the Claimants that, although the case is authority for the proposition that, if two parties conspire to misrepresent their true contract to a third party, the court is free to disregard the false arrangement, it is not authority for the proposition that this form of misrepresentation is the only circumstance in which the court may disregard a written term which is not part of the true agreement.”
He then went on to analyse a number of decisions in the Court of Appeal of England and Wales, including the decision in Protectacoat v Szilagyi to which I have already referred.
17. Although, at first, Ms Ahmed suggested that the Employment Agreement in the present case was “sham” in the sense defined by Lord Justice Diplock in Snook, she later withdrew that submission: appreciating, perhaps, that in order to maintain the submission she would have to accept that her clients, a DIFC-regulated body, had conspired to produce a document that would be presented to the regulatory authority in order to misrepresent what was now said to be the true position. But, nevertheless, she submitted that — without alleging “sham” — it was still possible to reach the conclusion that the provision in the Employment Agreement for payment of salary by the Bank, as the employer, to the Mr Buker, as the employee, did not represent the true intentions of both parties; and so could be disregarded. In support of that submission, she relied primarily on the circumstances in which the parties entered into the Employment Agreement.
18. It is common ground that the Employment Agreement was entered into in the context of a joint venture between BAL and the Bank. BAL was an unregulated company engaged in the provision of contract management services in connection with hedge funds. Because it was an unregulated company, it could not market its services within the DIFC. It was in those circumstances that BAL resolved to enter into an arrangement with the Bank, which, as I have said, was regulated for the purposes of carrying on financial services within the DIFC; and so could market within the DIFC the services which BAL wished to offer. But the Bank, which had a financial services business of its own, did not have the staff or expertise itself to perform the services that BAL wished to offer. So it was necessary, if those services were to be marketed by the Bank, they should actually be provided by members of BAL’s staff. The solution adopted was that those staff members should become employees of the Bank so that they could have the sponsorship necessary for an employment visa.
19. The relations between the Bank and BAL were set out in an agreement, described as a Collaboration Agreement, dated 7 February 2012: that is to say, dated the day before the date of the Employment Agreement. Clause 1 of the Collaboration Agreement contains the following recitals:
“1. General scope of the parties’ duties.
1.1 RIBL intends to establish a portfolio of fund managers through its licence in the DIFC mainly in relation to hedge funds (the product).
1.2 RIBL intends to introduce the product to its MENA client base in order to market the product.
1.3 RIBL intends to engage BAL to provide staff to execute administrative services on behalf of RIBL.”
The term of the agreement was to be two years unless otherwise terminated. The obligations of the Bank under the Collaboration Agreement were set out at clause 3:
“3.1 RIBL shall provide employment and work visas for designated BAL staff, together the BAL team. RIBL shall permit members of the BAL team to carry on administrative work solely for BAL one day per week. RIBL agrees to make available to the BAL team appropriate workspace and equipment at RIBL’s offices for the performance of the BAL team’s duties. Equipment consists of desks, chairs and telephones.”
. . .
“3.5 RIBL represents, warrants and undertakes to BAL that it has all the necessary licences, consent and approvals, including but not limited to RIBL’s Dubai Financial Services Authority licence, to permit the parties, including the BAL team, to carry on the activities contemplated by this agreement and maintain such licences in full force and effect.”
20. Clause 4 of the Collaboration Agreement set out the obligations of BAL. BAL was to administer “the RIBL team” client contracts. In particular, clause 4.4 provided that:
“4.4 BAL shall administer the co-operation between RIBL and BAL as set out in this agreement and shall refund RIBL all costs incurred by the BAL team relating to employment expense, travel and marketing of product, medical and health insurance fees, visa fees, use of telephones, salaries to BAL team, any bonuses paid to BAL team, including any gratuity paid to BAL team. As per this collaboration agreement, BAL should take full responsibility for the monthly salary, expenses, bonus and gratuities payable to Lars Pampel, Friso Buker and Youssef Fawaz (BAL). RIBL are not responsible to any BAL individual for any of the aforementioned responsibilities. The BAL team shall each be provided with individual employment contract for the purposes of HR completeness and visa purposes. Please note that RIBL shall not be subject to any claim made by any BAL team for salary, expenses, bonus and gratuity.”
The individual employment contracts, with which the BAL team was to be provided, plainly included the Employment Agreement that was entered into between RIBL and Mr Buker on the following day. Equally plainly, Mr Buker and Mr Pampel were regarded as part of the BAL team for the purposes of clause 4.4.
21. The short question of construction, in so far as it is relevant to have regard to clause 4.4 of the Collaboration Agreement in deciding what was the relationship between the Bank and Mr Buker under the Employment Contract, is whether clause 4.4 contemplates, as the judge thought, that RIBL would pay the salaries of the members of the BAL team under their employment contracts against refund by BAL; or whether, as the Bank now contends, those salaries were to be paid by BAL without any responsibility for them on the part of the Bank.
22. The form of clause 4.4, — and in particular the opening words: “BAL shall refund salaries to the BAL team” — suggests strongly that, at least originally, the intention was that the salaries would be paid by the Bank against an obligation by BAL to refund to the Bank the amounts so paid. Unless that was the intention, the provision for refund of salaries to the BAL team, including bonuses and gratuities, has no purpose. There would be no occasion for a refund, because the payments would have been made by BAL itself and not by the Bank. But, plainly, clause 4.4 of the Collaboration Agreement does contemplate that, as between BAL and the Bank, the responsibility for paying those salaries rests on BAL.
23. Mr Buker was not a party to the Collaboration Agreement. So, even if that agreement provided, in terms, that the salaries of the BAL team would be paid direct by BAL to the members of that team — which it does not do — Mr Buker’s right to look to the Bank, under the Employment Agreement, for payment of his salary would not, without more, be affected. It is said, however, that Mr Buker was responsible for negotiating the Collaboration Agreement; and that, accordingly, it must have been his understanding and intention that he could not look to the Bank for payment of his salary, but could only look to BAL.
24. I was taken to a number of emails leading up to the execution of the Collaboration Agreement. But those emails, although showing that Mr Buker was involved in the negotiation of that document, do not establish the extent of his involvement. In particular, the emails do not show that he saw, or knew of, the terms of clause 4.4 in the form in which it appeared in the agreement as executed. For my part, I find it difficult, after reading clause 4.4 in the agreement as executed, to reject the possibility — indeed, I would say, the probability, that the last sentence — “Please note that RIBL shall not be subject to any claim made by any BAL team for salary, expenses, bonus and gratuity” — was introduced into the text at a late stage in the drafting process. I say that because that final sentence does not sit easily with the first sentence in that clause — which provides for the refund of salaries paid by the Bank to BAL team members. In those circumstances it is relevant to know if Mr Buker was aware of the clause in its final form.
25. Whether or not Mr Buker was aware of clause 4.4 of the Collaboration Agreement in its final form was not determined — or, I think, raised — at the trial in the STC. But, even if satisfied that he did know of the terms of the clause in the agreement as executed, I would be inclined to the view that, on its true construction, the effect of clause 4.4 is to leave the primary responsibility as between the Bank and the employee under the employment contract with the Bank; but to provide that the Bank as entitled to a full indemnity and refund from BAL in relation to that obligation. I am not persuaded that clause 4.4 can properly be read so as to require that the individual employment contracts which are to be made between the Bank and BAL team members will not impose any liability on the Bank for the payment of salary for which those contracts themselves provide.
26. There is no dispute that, on the day following the execution of the Collaboration Agreement, the Bank and Mr Buker entered into an Employment Agreement, which did, in terms, purport to impose such liability on the Bank. The need for employment contracts was plainly driven by the need to obtain employment visas for the individuals who would be working for the Bank as part of the BAL team. If that object was to be achieved without misleading the regulatory authorities — and I have seen nothing to suggest that Mr Buker intended that the regulatory authorities should be misled — it was necessary that the members of the BAL team should be employees of the Bank. In those circumstances I reject the submission that it was the common intention of the Bank and Mr Buker that clause 4.4 of the Collaboration Agreement had the effect that the provision for payment of salary in the Employment Agreement was to have no legal effect.
27. Nor do I find anything in the subsequent events that suggests that Mr Buker himself had any intention that the only obligations owed to him should be owed by BAL. It is impossible to draw any conclusions from salary payments made; because no salary payments were made by either the Bank or by BAL. But, in an email of 8 May 2012, Mr Buker was plainly asserting to Mr Pampel that he was entitled to salary from the Bank. He wrote:
“Are you offering to pay me the sum of USD 4,000 in exchange for a legally-binding document, which states that I will not take legal action for any outstanding salaries from either Royal Investment Bank Limited (to which I am contractually entitled to USD 18,000 as of today) or Bridgehead Administration Limited, which includes both you as CEO and founder as well as Frank Scheunert, the main investor.”
That email was written in the context of an offer — or what appears to have been an offer — made by Mr Pampel, or perhaps by Mr Scheunert, or by both of them to pay Mr Buker USD 4,000 on account, as it were, in order to persuade him not to take any steps to enforce his rights against the Bank. The motive which prompted that offer, plainly, was to avoid a situation in which the Bank would decide to take action against BAL to recover monies that it had to pay to Mr Buker: action that might lead to BAL’s insolvency. That appears from Mr Pampel’s reply on 8 May 2012:
“Nobody wants to deny you what is rightfully yours, it is just we have to find a way that satisfies you without killing the company. One solution that springs to mind is paying you the USD 4,000 at your immediate need and then paying another sum after 30 days and so on.”
That reply acknowledges that the money to which Mr Buker was entitled would, ultimately, have to be paid by BAL: whether BAL was obliged to pay Mr Buker direct or whether it was obliged to refund the Bank for payments that the Bank was obliged to make. But it is of significance that it contains no suggestion by Mr Pampel that Mr Buker was not correct to assert that there were outstanding salary payments due to him from the Bank, to which he was contractually entitled under the Employment Agreement. Had Mr Pampel taken the view which is now advanced on behalf of the Bank, he could have been expected him to reply to the effect that: “You have no contractual entitlement to be paid by the Bank; you can only look to BAL for payment”. But he did not do that.
28. So, there is nothing in the material that has been put before the Court which supports the contention that Mr Buker executed the Employment Agreement with the intention that the obligations which that agreement purported to impose on the Bank — including, in particular, the obligations to make monthly payments of salary and to give three months’ notice of termination of employment — were not obligations with which the Bank was expected to comply. What he plainly did appreciate — and this would have been clear from his involvement in the negotiation of the Collaboration Agreement — was that payments made to him by the Bank by way of salary, or in lieu of notice — would have to be repaid to the Bank by BAL. So it was understandable that he should expect to negotiate with BAL; because, if he could reach an accommodation with BAL, his concerns as to non-payment would be met.
29. For those reasons, I am not persuaded that the terms of the Employment Agreement as to the payment of salary by the Bank and the giving of three months’ notice of termination did not represent the true intention of Mr Buker (whether or not also the true intention of the Bank) at the time when that agreement was executed and thereafter; so there is no basis upon which those contractual terms can be disregarded.
30. As a fallback, it is submitted on behalf of the Bank that there should be implied into the Employment Contract a term to the effect that the Bank’s obligation to pay salary is conditional upon BAL having put the Bank in funds for that purpose. In my view, it is impossible to imply a term to that effect: first, because it is not a necessary term in order to make commercial efficacy of the Employment Contract; and, second, because it is contradicted by the provisions in clause 4.4 of the Collaboration Agreement, which provides for the refund of monies paid. “Refund” is apt to describe the repayment of monies that the Bank has paid: “refund” is not apt to describe a prepayment by way of funding monies yet to be paid. For that reason, I take the view that the implied term argument cannot be sustained.
31. By way of final submission it was said on behalf of the Bank that the judge erred in finding that the employment terminated on 8 June 2012; and that he should have found that the employment terminated earlier, at some date (unspecified) in May 2012. Mr Buker had asserted in his pleading that his contract of employment did terminate on 8 June 2012. The basis for that assertion was that he had received from Mr Pampel — to whom he reported at the Bank — an email on 10 June 2012 telling him not to come into the office on that day or thereafter. That email plainly constituted a summary dismissal.
32. There is no email or other document, or evidence of written or oral instruction, to support the contention in paragraph 22 of a further Defence filed on behalf of the Bank on 8 August 2012 that the employment terminated early in May 2012; nor is that assertion consistent with the statement in Mr Pampel’s email of 10 June 2012 that the employment had terminated on 30 or 31 May 2012. The judge is criticised for finding that the employment terminated on 10 June 2012, rather than at an earlier date in May; but on the material before him there was no other conclusion that he could reach.
33. For those reasons, I would dismiss this appeal. It is without merit. I confirm the payment order that Mr Buker obtained from the Small Claims Tribunal. Payment is to be made within seven days of today; and is to include interest (the amount of which is to be notified to the Bank before 4pm.
Date: 12 March 2013