Skip to Content

Enola v Enok [2014] DIFC SCT 056

Enola v Enok [2014] DIFC SCT 056

October 2, 2014

image_pdfimage_print

Claim No. XXXX

 

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

 

In the name of His Highness Sheikh Mohammed Bin Rashid Al Maktoum,

Ruler of Dubai

 

IN THE SMALL CLAIMS TRIBUNAL OF DIFC COURTS

BEFORE H.E. JUSTICE SHAMLAN AL SAWALEHI

 

BETWEEN

 

       ENOLA        

Claimant

and

 

ENOK

Defendant

Hearing:            1 September 2014

Parties:             Elzbieta, litigant in person

Defendant is represented by XXXX

Judgment:        October 2014


 JUDGMENT OF H.E. JUSTICE SHAMLAN AL SAWALEHI


Parties

1. The Claimant is Enola, a previous employee of the Defendant.

2. The Defendant is Enok, located in the DIFC.

Factual Background

3. From 4 March 2007 until 17 July 2014, the Claimant entered into an employment agreement with the Defendant which was terminated by the Defendant on 17 July 2014.

4. On 24 July 2014, the Claimant filed a claim with the DIFC requesting her end of service benefits in the total amount of AED 191,766.00.

5. On 5 August 2014, a consultation was attended by both the Claimant and the Defendant before Judicial Officer Maha Al Mehairi, but no settlement was reached. A hearing was scheduled for 9 September 2014 before H.E. Justice Shamlan Al Sawalehi.

The Hearing

6. On 9 September 2014, the hearing was held before H.E. Justice Shamlan Al Sawalehi, attended by both the Claimant and the Defendant. Both Claimant and Defendant were instructed by H.E. Justice Shamlan Al Sawalehi to decide if they wanted to settle the claim out of court before proceeding with the hearing, but both parties declined to settle the claim and requested the Judge’s ruling.

7. According to the party’s submissions and presentations at the hearing, the Defendant confirms that the Claimant is entitled to the amount of AED 4,158.67 only, and refused to pay the Claimant the gratuity payment, alleging that she had been terminated for gross misconduct, as she had threatened to tarnish the company’s name among candidates and clients.

8. The Defendant confirms that the final calculation of amounts owing to the Claimant is AED 34,158.67, being an amount of unpaid salary for 29 days and untaken leave of 9.5 days. However, the Defendant argued that the Company had advanced an interest-free loan of AED 30,000.00 to the Claimant, which was to be deducted from monies owing to the Claimant.

9. The Claimant confirms the advanced loan, but she denied allegations of misconduct on her part and asserted that she had a conversation with a company staff member called “Amy” about her concerns as to whether and when she could inform candidates that she was leaving the company upon termination of her employment contract due to the company’s closure and not due to termination.

Court’s Finding

10. The Defendant’s arguments about denying the Claimant her gratuity are invalid, as the Defendant has failed to submit clear evidence to prove that the Claimant had been terminated for cause in circumstances where the conduct of one party warranted termination and where a reasonable employer would have terminated the employment as defined in Article 59 (A) of the DIFC Employment Law No. 4 of 2005.

11. The written witness statement of xxxx which was submitted by the Defendant to support its argument in this regard cannot be considered “stand alone evidence”, because she is one of the Defendant’s employees and to that extent I do not rely on its facts, nor I am considering to take into account her statement for lack of independence.

12. Therefore, Article 59(5) and (59) of the DIFC Employment Law No. 4 of 2005, do not apply in this case and the Claimant is entitled to her gratuity as calculated below.

13. On the other hand, the DIFC Employment Law No. 4 of 2005, Article 62 (1) and (2), emphasise that employees who complete continuous employment of one year or more are entitled to a gratuity payment at the termination of employment, calculated as twenty one days’ basic wage for each year of the first five years of service. And thirty (30) day’s basic wage for each additional year of service.

14. However in this case, the two parties of this dispute do not have the same view as to whether or not the Claimant’s salary is divided into basic salary and allowances. To support its argument , the Defendant submits an internal circular dated 28 July 2013 to clarify the split between basic salary and allowances within the Claimant’s salary as 70:30 percent ratio respectively , which stated at the end that:

“Agreement has been reached in writing with all three of the above mentioned members of staff, (including the Claimant), on or before 28 July 2013”.

15. I have examined the appendices submitted by the Defendant and noticed that the Claimant had accepted by email dated 28 July 2013 the new company policy that split her salary into “base salary” and “salary including all allowances” at 70/30 percent ratio.

16. Furthermore, I have reviewed the email sent from the company to its employees copied to the Claimant on 12 December 2011, which awarded her the sum of AED 500 monthly so that she could take out whatever healthcare plan best suited her needs on the basis of individual cover not corporate cover. Such extra payment should be counted as extra allowance and not part of the Claimant’s gross salary.

17. Therefore, I am considering in this judgment that the Claimant’s basic wage per day was AED 630 which is calculated as 70 % of the Claimant’s gross salary (AED 27,000) divided into 365 days in a year, since 4 March 2007 until 29 July 2014 the last working day, which would entitle the Claimant to the sum of AED 1, 112, 58 as total gratuity calculated as follows:

a)    Gratuity for 5 years ( 630 * 105 days ( 21*5) ) = AED 66,150

b)    Gratuity for extra 2 years ( 630* 60 days ( 30* 2) ) = AED 37,800

c)    Gratuity for extra 4 months (630 * 120 days * 0.08 (30 % 365) =  AED 6,048

d)    Gratuity for remaining 25 days of July 2014 ( 630 * 25 * 0.08 ( 30 % 365)   ) = AED 1,260

18. As to regards any other complaints made in this case, the Court views that there are no legal grounds to base those claims upon, and that they are not supported by reasonable evidence, and consequently should be dismissed.

19. Then I found that the total amount that the Claimant is entitled to is the sum of AED 1,468,46 calculated as follows :

a)    Unpaid salary for the month of July = AED 27,000

b)    Unpaid leave for 9.5 days = AED 8,588

c)    Unpaid total gratuity = AED 1, 112, 58

20. Having said that, according to the DIFC Employment Law there are four circumstances that may authorise an employer to deduct from an employee’s wages. Section 19 (b) and (c)  of the DIFC Employment Law No. 4 of 2005 states that an employer shall not deduct from an employee’s wages or accept payment from an employee, unless:

a)    the employee has previously agreed in writing to the deduction or payment;

b)   the deduction or payment is a reimbursement for an over payment of wages or expenses …”

 21. In this case, the Claimant has not denied the fact that she received an advance interest-free loan from the Defendant, therefore the deduction of AED 30,000.00 from the Claimant’s total benefits towards that loan is legally authorized and accepted by the Court.

22. Having accepted the Defendant’s deduction, the total amount payable to the Claimant is the sum of AED 1, 168, 46.

23. For the reasons mentioned above, it is hereby ordered that the Defendant pay the Claimant the sum of AED 1, 168, 46 in addition to the Courts fee.

 

 

Issued by:

Maha Al Mehairi

Judicial Officer

Date: 2 October 2014

At: 3pm

X

Privacy Policy

The Dubai International Financial Centre and all its affiliates are committed to preserve the confidentiality, integrity and availability of client data and personal information.

Dubai International Financial Centre and all its affiliates employees, vendors, contract workers, shall follow Information Security Management System in all the processes and technology.

  1. DIFC Courts's Top Management is committed to secure information of all our interested parties.
  2. Information security controls the policies, processes, and measures that are implemented by DIFC Courts in order to mitigate risks to an acceptable level, and to maximize opportunities in order to achieve its information security objectives.
  3. DIFC Courts and all its affiliates shall adopt a systematic approach to risk assessment and risk treatment.
  4. DIFC Courts is committed to provide information security awareness among team members and evaluate the competency of all its employees.
  5. DIFC Courts and all its affiliates shall protect personal information held by them in all its form.
  6. DIFC Courts and all its affiliates shall comply with all regulatory, legal and contractual requirements.
  7. DIFC Courts and all its affiliates shall provide a comprehensive Business Continuity Plan encompassing the locations within the scope of the ISMS.
  8. Information shall be made available to authorised persons as and when required.
  9. DIFC Courts’s Top Management is committed towards continual improvement in information security in all our processes through regular review of our information security management system.
X

Disclaimer

The content of the DIFC Courts website is provided for information purposes only and should be disregarded when making decisions on inheritance and any other matters. Whilst every reasonable effort is made to make the information and commentary accurate and up to date, the DIFC Courts makes no warranties or representations to you as to the accuracy, authenticity or completeness of the content on this website, which is subject to change at any time without notice. The information and commentary does not, and is not intended to, constitute legal advice by the DIFC Courts or any person employed or connected with it or formerly so employed or connected, to any person on any matter, be it in relation to inheritance, succession planning or otherwise. You are strongly advised to obtain specific, personal advice from a suitably qualified lawyer in relation to your personal circumstances and your objectives. The DIFC Courts does not assume any liability and shall not be liable to you for any damages, including but not limited to, direct or indirect, special, incidental or consequential damages, losses or expenses arising in connection with this website, its administration and any content or lack thereof found on it. The information on this web site is not to be displayed except in full screen format. Although care has been taken to provide links to suitable material from this site, no guarantee can be given about the suitability, completeness or accuracy of any of the material that this site may be linked to or other material on the internet. The DIFC Courts cannot accept any responsibility for the content of material that may be encountered therein.