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Dabria v Daire [2013] DIFC SCT 021

Dabria v Daire [2013] DIFC SCT 021

April 21, 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

DABRIA

Claimant

and

DAIRE

Defendant

Hearing: 20 March 2013

Judgment: 17 April 2013


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 shall pay the Claimant the sum of AED 8,683.
2. The Defendant shall pay the Claimant the court fees of this claim.

The reasons:

Parties

1. The Claimant is Dabria
2. The Defendant is Daire

Background and the preceding history

1. The Claimant alleged that he had been employed by the Defendant from 8 November 2010 until 7 February 2013.
2. The Claimant requested that the Defendant pay him that which he was entitled to under his Employment Contract. The Defendant had refused to pay the Claimant, which had 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 20 March 2013 I heard both parties’ submissions.

Particulars and defence

4. In his Particulars of Claim, the Claimant argued that his Employment Contract had been terminated on 7 February 2013 but he had not received his dues and benefits within 14 days following the end of his Employment Contract, in accordance with Article 18. (1) of the Employment Amendment Law No.3 of 2012 of DIFC Law No.4 of 2005.
5. The Claimant had specified his claims for unpaid salary for two months (July 2012 and January 2013), two weeks of December 2012, 7 days of February 2013, and one month’s notice.
6. In its defence and during the hearing, the Defendant accepted that the Claimant may have the right to claim for 15 days’ unpaid salary for the month of December 2012, and it admitted that the Claimant’s salary for January 2013 and the one month’s notice had not been paid.
7. The Defendant further argued that the Claimant’s contract had been terminated following written and verbal warnings concerning excessive tardiness and patterned absenteeism that had been considered to be misconduct. Therefore, the Claimant was not entitled to a gratuity payment and one month’s notice.

Finding

8. I have found that the evidence submitted by the Defendant in support of its argument on the alleged misconduct on the part of the Claimant is neither sufficient nor reasonable to establish termination for cause, as is 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”
9. In these circumstances, the alleged conduct of the Claimant did not warrant termination by a reasonable employer. Therefore, the Claimant is entitled to his gratuity payment and one month’s notice calculated as follows:
In regard to gratuity payment, it is 42 days for the two years and 3.5 days for the additional two months for the period from 8 November 2010 to 7 February 2013, in total the sum of AED 4,683 in addition to the court fees for this claim.
10. As regards the notice period, it is one month’s salary to be paid, namely the sum of AED 4,000.
11. Furthermore, I have found that the evidence submitted by the Claimant is neither sufficient nor reasonable to establish that the Defendant is contractually or legally liable to pay any extra amount beyond what has been decided in paragraphs 9 and 10 of this Order.

 

Shamlan Al Sawalehi
Small Claims Tribunal Judge
Date of Issue: 21 April 2013
At: 11am

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