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Faridoon v Faustina [2015] DIFC SCT 018

Faridoon v Faustina [2015] DIFC SCT 018

March 12, 2015

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Claim No: SCT 018/2015

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

BEFORE H.E. JUSTICE SHAMLAN AL SAWALEHI

BETWEEN 

FARIDOON 

Claimant/Defendant in Counterclaim 

and 

FAUSTINA 

Defendant/Claimant in Counterclaim

Hearing: 3 March 2015

Judgment: 12 March 2015


JUDGMENT OF H.E. JUSTICE 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 HEREBY ORDERED THAT:

1.Faridoon shall pay Faustina the sum of AED 439, and the Courts fee.

THE REASONS

Parties

2. Faridoonis the representative of Feisal, a DIFC entity.

3. Faustina is a former employee of Feisal.

Background and the Preceding History

4. Faustina was employed by Feisal as a therapist from 17 August 2014 until her Employment Contract was self-terminated on 9 February 2015.

5. Feisal accepted Faustina’s resignation, but requested her to continue working for Feisal until 9 April 2015.

6. Faustina refused to continue working, and requested Feisal to pay her what she believes she was entitled to under her “Terms and Conditions of Employment” signed on 14 July 2014 and the DIFC Employment Law, which consequently, led Feisal to file this claim before the Court , followed by a Counterclaim filed by Faustina.

7. No settlement was reached by the parties at the end of the consultation and, consequently, the case was sent for adjudication. On 3 March 2015 I heard both parties’ submissions.

Particulars and Defence

8. Feisal argued that Faustina’s “Terms and Conditions of Employment” provide that 2 months’ notice must be given upon her resignation, and Faustina did not make herself available to commence the notice period’s term and continue working for the company. They further argued that Faustina was not entitled for any end of employment benefits, because the employment relationship ended during the probationary period and in accordance with Clause 18.2 of the “Terms and Conditions of Employment”.

9. Faustina argued that her “Terms and Conditions of Employment” gave her the right to resign without any need to inform the Company by giving notice , as that happened during the 6 months’ probation period . She further argued that she was entitled to end of employment benefits, although her employment relationship ended during the probationary period.

Finding

10. The question this case concerns what sort of rights and obligations are applicable to a DIFC employee whose employment contract has been terminated during the probationary period?

11. Before I answer that question, I have considered the following Articles and Clauses, as follows:

12. DIFC Employment Law No. 4 of 2005, as amended , states at Article 59 that:

“(1) An employer or an employee may terminate an employee’s employment in a accordance with this Article.

(2) Subject to Article 59(4) and (5),the notice required to be given by an employer or employee to terminate a person’s employment, where the person has been continuously employed for one (1) month or more, shall not be less than:

(b) (30) days if the period of continuous employment is less than (3) months or more but less than five (5) years

(3) This Article shall not prevent an employer and employee from agreeing to a longer or shorter of notice nor shall it prevent either party from waiving notice or from accepting a payment in lieu of notice.”

13. The “Terms and Conditions of Employment” state at Clause 18.1 that:

“After the completion of your probation period, either party may terminate this employment by giving 60 days’ notice in writing or payment in lieu of notice”.

14. The “Terms and Conditions of Employment” state at Clause 8 that:

“8.1:  This offer is subject to you completing a 6 month probationary period satisfactorily.

8.2:  During the probation period your service may be terminated by the Feisal without notice or end- of- service gratuity.”

15. Then, I have noticed that the contract actual performance date was 17 August 2014, So the 6 months’ probationary period should lapse 6 months later, which is on 17 February 2015, accordingly that means Faustina had submitted her resignation within the probation period set out at Clause 8.1, and therefore was under no obligation to give (60) days prior notice as set out under Clause 18.1 of the “Terms and Conditions of Employment”.

16. Now, to answer the key question in this case, I am of the view that DIFC Employment Law does not suggest any legal relationship between compensation for termination notice or for end of service gratuity and the fact that the employee has been terminated during the probationary period , therefore I am of the view that a DIFC employee, whose employment contract has been terminated during the probationary period , should be entitled to all employee benefits as set out in their employment agreement, as well as in DIFC Employment Law No.4 of 2005, as amended .

17. Then, I have found that Areli has failed to support her argument that her notice period was waived entirely, as by applying the general rules on the rights of employer and employee to minimum notice, in my view compensation for (30) days’ notice had to be given to Feisal in lieu of notice, in spite of the fact that the employment contract was terminated during the probationary period. Therefore, I have found that Feisal has the right to claim a payment for 30 days’ notice.

18. Then, I have reviewed very carefully the “Terms and Conditions of Employment” that were signed on 14 July 2014, as I am not persuaded that I should apply Clause 18.2, and waive the employee’s right to gratuity payment at termination of her employment during the probation period, as DIFC Employment Law does not suggest that an employer has the right to do so.

19. Contrary to Clause 18.2, DIFC Employment Law does not allow any waiver to what the Law describes as “the Minimum requirements” that defiantly includes gratuity payment, and a provision in an agreement to waive any of those requirements has no effect, except where expressly permitted under that Law, which is not the case under the section which deals with end of service gratuity Article 62 of the DIFC Employment Law, in accordance with Article 10(1) of that Law.

20. Then, I have found that the termination took effect prior to the end of one full year of employment, as Faustina has worked since 17 August 2014 until 9 February 2015, that means she has worked for (5) months and (22) days, a total of (172 days) at the rate of (14) calculated as (172 * 30 / 365), and her daily wage calculated as (AED 2,900 gross salary * 12 = 34,800. / 365), in the sum of AED 95.3 per day, and her basic wage calculated as (AED 2,500 * 12 = 30,000 / 365), in the sum of AED 82 per day.

21. Therefore, Faustina is entitled to compensation for end of service gratuity payment, calculated per year on a proportionate basis (14* 82), in accordance with Article 62(3) of the DIFC Employment Law, in the sum of AED 1,148.

22. In addition to that, Faustina is entitled to compensation in lieu of vacation leave for (30) days in accordance with her employment agreement point 11(1) , calculated on a pro rata basis ( 95.3 * 14) in accordance with Article 27(1) of the DIFC Employment Law, in the sum of AED 1,334 .

23. Furthermore, Faustina is entitled to payment in lieu of unpaid salary for 9 days of February 2015, in the sum of AED

24. Lastly, I have to bring the employer’s attention to the point that an employer in the DIFC shall not request, charge or receive, directly or indirectly, from an employee a payment for employing or obtaining employment, in accordance with Article 20 of the DIFC Employment Law.

25. In accordance with paragraph 15 of this judgment, Feisal’s total compensation is the sum of AED 2,900, and Faustina’s total compensation is the sum of AED 3,339.

26. For those reasons, I have found that Faustina is entitled to the sum of AED 439 in addition to the courts fees, and I dismiss any other claims advanced by both parties for lack of supporting evidence.

Issued by:

Maha Al Mehairi

Judicial Officer

Date of issue: 12 March 2015

At: 2pm

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