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Danita v Danh [2013] DIFC SCT 037

Danita v Danh [2013] DIFC SCT 037

August 6, 2013

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Claim No:

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

DANITA

Claimant

v

DANH

Defendant

Hearing: 28 July 2013

Judgment: 05 August 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 shall pay the Claimant the sum of AED 29,695.00.
2. The Defendant shall pay the Claimant the court fees in relation to this claim.

The reasons:

Parties

1. The Claimant is Danita
2. The Defendant is Danh

Background and the preceding history

1. The Claimant alleged that he had been employed by the Defendant from 15 December 2012 until 27 June 2013.
2. The Claimant requested that the Defendant pay him that to which he was entitled 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 28 July 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 without reason and that his final settlement had not included his entire end of employment benefits such as unpaid salaries, 30 days’ notice and return Ticket.
5. In its defence, the Defendant argued that the Claimant had joined the Company on 18 February 2013, which was the date his visa was stamped, and that the Salon had not been operating before that date.
6. The Defendant further argued that the Claimant’s total benefits amounted to AED 6,475 only, a certain amount had been deducted from his final settlement, as the contract gave the Defendant the right to deduct visa expenses and overstay fines from the amount should employment be terminated in less than a year from its commencement. In addition, an amount had been deducted due to the Claimant’s mistakes that had caused losses to the Salon’s business.

Finding

7. I have examined the Claimant’s Contract and I have noticed a statement under the signature of the Defendant’s representative which states that “Joining date is January 20th 2013”. Therefore, all the Claimant’s Contract benefits shall be calculated starting from that date until the date his Contract ended, following which the Defendant shall pay the Claimant the remaining unpaid 12 days of January 2013.
8. I am of the view that the Claimant is entitled to his total end of service calculated as follows:
9. 12 days’ wages for January 2013, unpaid Salary for February 2013, unpaid days wages for May 2013, 30 days’ notice, namely the sum of AED 29,695.00 in addition to the Court fees for this claim.
10. Then I have reviewed the Claimant’s Contract which reads at the paragraph entitled “Other Terms and Conditions” as follows:
“Should you resign from the first year of employment, you will be required to reimburse the Danh for all costs and expenses which have been incurred relating to your recruitment.”
11. It is very obvious on the face of the above-cited term that the employee might contractually be under an obligation to pay back all costs and expenses including visa costs, if he terminates his employment contract on his own initiative, which never happened in this case as the Claimant’s Contract was terminated by the employer, therefore all deductions made by the Defendant that related to this reason should be deemed invalid.
12. Moreover, I have found that the evidence submitted by the Defendant regarding alleged losses to the Salon’s business is neither sufficient nor reasonable to establish that such losses had in fact been sustained.
13. Having said that, I find that the evidence submitted by the Claimant regarding any other compensation 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 decided in this Order at paragraph nine above.

 

Shamlan Al Sawalehi
Small Claims Tribunal Judge
Date of Issue: 06 August 2013
At: 12 pm.

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