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Daewon v Dacia [2013] DIFC SCT 013

Daewon v Dacia [2013] DIFC SCT 013

April 16, 2013

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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

DAEWON

Claimant

v

DACIA

Defendant

Hearing: 25 March 2013

Judgment: 15 April 2013


JUDGMENT OF 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 pays the Claimant the sum of AED 4,683.
2. The Defendant pays the Claimant’s Courts’ fee of this claim.

The reasons:

Parties

1. The Claimant is Daewon
2. The Defendant is Dacia

Background and the preceding history

1. The Claimant alleged that he had been employed by the Defendant from 27 March 2011 until 28 January 2013.
2. The Claimant requested that the Defendant pay him which he was entitled to under his Employment Contract. The Defendant had refused to pay the Claimant, which led the Claimant to file this case before the Court.
3. No settlement was reached by the parties at the end of the consultation and, consequently, the case was sent for adjudication. On 25 March 2013 I heard both parties’ submissions.

Particulars and Defence

4. In his Particulars of Claim, the Claimant argued that he had resigned from his position at the Defendant’s Restaurant on 9 January 2013, and that the Defendant had accepted his resignation but, during the notice period, the Defendant sent him a termination letter for gross misconduct. The Claimant’s final settlement had not included all his end of employment benefits such as gratuity payment and unpaid tips.
5. The Claimant further argued that the Defendant had forced him to sign the DIFCA Employment Cancellation Request Form (“the Cancellation Form”) and waived his end of employment contract benefits.
6. The Claimant alleged that the Defendant had delayed his visa cancellation. Therefore, he had to sign the Cancellation Form, which stated that the Claimant had received all of his employment benefits, in order to release his passport and move forward with his new employer.
7. In its defence, the Defendant argued that, during the noticed period, the Claimant’s conduct and performance was misbehavior, and that all of his employment dues had been received and settled by the Claimant on 29 January 2013, except the end of service because he violated the company policies and handbook due to gross misconduct.
8. The Defendant further argued that the Claimant is not entitled for tips for the month of January, because his performance and conduct was not up to the required standard. He had received the first warning on 4 September 2012, and a final written warning was issued to the Claimant. The Claimant did not receive cash tips for that month for the same reason.

Finding

9. I have reviewed the Cancellation Form that was signed by the Claimant on 29 January 2013, which reads as follows:
“I, the undersigned do hereby certify that I have received all my dues in respect of my salary and leave from company and verify that I have no rights to make any claims after this date.”
10. I am of the view that the Claimant’s statement in the above cited Cancellation Form and his conduct of signing a receipt of such dues in cash (the sum of AED 1,761.00) from the Defendant, (which includes January 2013 total salary, in lieu of holiday balance and Air Ticket) speaks for itself and has limited evidence that he had settled and received his end of contract benefits of cited items on that statement only, following which the Defendant is required to pay any further dues that was not settled or received by the Claimant if the Claimant could support such further dues by reasonable evidence.
11. It would be very difficult to accept the Defendant’s argument that he was forced to sign the Cancellation Form just because it is a Government requirement for visa cancellation, and that such document neither confirms the fact that no further claims or dues are to be issued before the Defendant by the Claimant, nor such signature has no legal effect, as the Claimant had the chance to either sign the Cancellation Form or refuse to do so and file an employment claim with full remedy sought by him.
12. Furthermore, it is very obvious on the face of the Cancellation Form that the Claimant’s gratuity payment had not been settled on 29 January 2013 or after that date until filing this claim. I am not in agreement with the Defendant’s argument on the alleged misconduct of the Claimant as I believe such allegations are neither sufficient nor reasonable to establish the termination for cause as its required by Article 59A of Employment Amendment law No.3 of 2012 of DIFC Law No.4 of 2005, which reads as follows:
“An employer or an employee may terminate an employee’s employment for cause in circumstances where the conduct of one party warrants termination and where a reasonable employer or employee would have terminated the employment”
13. In these circumstances the alleged conduct of the Claimant during his notice period (he had walked off the floor during service on the 28 January 2013) does not warrant termination. Therefore, the Claimant is entitled to his end of service calculated as follows:
14. 21 days for the first year, 17.5 days for the additional 10 months and 1.75 day for the remaining 12 days for the period from 27 March 2011 to 9 February 2013, namely the sum of AED 4,683 in addition to Courts’ fee of this claim.
15. Having said that, I find that the evidence submitted by the Claimant regarding the cash tips for the month of January is neither sufficient nor reasonable to establish that the Defendant is contractually or legally liable to pay any extra amount beyond that which has been offered by the Defendant in its Final Settlement letter and what is decided in this Order at paragraph 13.

 

Shamlan Al Sawalehi
Small Claims Tribunal Judge
Date of Issue: 16 April 2013
At: 4pm

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