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Fusun v Funske [2015] DIFC SCT 081

Fusun v Funske [2015] DIFC SCT 081

June 22, 2015

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Claim No: SCT  081/2015

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 OF DIFC COURTS

BEFORE H.E. JUSTICE SHAMLAN AL SAWALEHI

Between 

FUSUN 

Claimant 

v 

FUNSKE 

Defendant 

Hearing: 10 June 2015

Judgment: 22 June 2015


 JUDGMENT OF H.E. JUSTICE SHAMLAN AL SAWALEHI


UPON hearing the Claimant and the Defendant at the hearing on 10 June 2015

AND UPON reading the submissions and evidence filed and recorded on the Court file

IT IS HEREBY ORDERED THAT:

1. The Claimant’s Claim is dismissed

2. The Defendant’s Counterclaims are dismissed

REASONS

3. The Claimant alleged that he had employed the Defendant from 13 July 2009 until 12 April 2015, when his employment contract was terminated.

4. The Claimant requested from the Defendant to accept all the benefits due at the end of his Employment Contract and asked him to sign the work permit cancellation form. The Defendant had refused to accept, which had led the Claimant to file this case before the Court. The Defendant subsequently filed counterclaims.

5. No settlement was reached by the parties at the end of the consultation and, consequently, the case was sent for adjudication. On 10 June 2015 I heard both parties’ submissions.

6. In the Claimant’s Particulars of Claim, the Claimant argued that he paid the Defendant all his dues at the end of his Employment Contract, namely the sum of AED 159,653 and the Defendant had accepted that payment from the Claimant without any objection, therefore the Defendant had to sign the cancellation with Government Services.

7. In his defence, the Defendant had admitted that he had received the sum of AED 159,653 only to mitigate his losses, but argued that this payment did not reflect his full entitlement upon the termination of employment. The Defendant further argued that he was unfairly dismissed and claimed compensation for national holidays, penalty payment for failure to pay gratuity within 14 days and unpaid working hours.

8. The Claimant denied all counterclaims and asserted that working hours and arrangement for working during National holidays were very flexible at the company, he insisted that the Defendant has no unpaid leave or days and that he has received all of his benefits according to the modified employment agreement signed by the Defendant on 1 April 2014.

9. I have examined both parties’ submissions and I have found that the amount paid in full to the Defendant on 7 May 2015 is reasonable and in accordance with DIFC Employment Law No.4 of 2005, as amended. Therefore, the Defendant is entitled to the sum of AED 159,653 only, which he had received before filing this Claim.

10. As regards to compensation for unfair dismissal, I refer to the case of Kteily Ghassan Elias V Julius Baer ( Middle East ) Ltd [CFI 014/2009], in which the Chief Justice Michael Hwang held the following at paragraph 22 of his reasons for Judgment:

The DIFC presently has no statutory law on unfair dismissal, and this consideration does not therefore apply to the way in which the implied term of mutual trust and confidence can develop in this jurisdiction”

11. Furthermore, I have examined all the submissions and supporting evidence in this case, and I am of the view thatthe evidence submitted by the Defendant to support his Counterclaims is neither sufficient nor reasonable to furnish those claims.

12. Lastly, I have to bring the Claimant’s attention to the point that, the Small Claims Tribunal has jurisdiction to hear and determine claims that have sought financial remedy only, in accordance with Article 53.2 of Rules of the DIFC Courts.

13. Therefore, I dismiss both the Claimant’s and the Defendant’s Claims.

 

Issued by:

Nassir Al Nasser

Judicial Officer

Date: 22 June 2015

At: 2pm

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