Claim No. SCT 191/2015
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
BEFORE H.E. JUSTICE OMAR AL MUHAIRI
Hearing: 11 October 2015
Judgment: 22 October 2015
JUDGMENT OF H.E. JUSTICE OMAR AL MUHAIRI
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 15,400.00 divided as follows:
a. The salary from 1 August 2015 to 15 August 2015 in the sum of AED 3,500.00.
b. The one month notice from 15 August 2015 to 15 September 2015 in the sum of AED 7,000.00.
c. End of Service gratuity in the sum of AED 4,900.00.
2. The Claimant shall pay the Defendant the sum of AED 33 for the four excess days in annual leave.
3. The Defendant shall pay the Claimant’s Court Fees in the sum of AED 367.50.
1. The Claimant is Ferenc (“the Claimant”), an Employee of XXXX, Registered in the DIFC.
2. The Defendant is Feray (“the Defendant”), a company registered in the DIFC.
3. On 14 September 2014, the Claimant signed an Employment Contract with the Defendant as a PR, Marketing and Social Media Executive at a monthly allowance of AED 7,000 plus accommodation, transportation, medical insurance, air ticket (economy class to home country every year) and annual leave (30 calendar days per annum).
4. On 17 June 2015, the Claimant applied for 24 days annual leave from 20 August 2015 to 15 September 2015 which was accepted by the Defendant. However, on 13 August 2015, the Claimant submitted her resignation letter to the Defendant and informed them about her one month notice period which was to be concluded on 15 September 2015. The Defendant accepted the resignation.
5. The Claimant alleges that during her holiday her August salary was not paid. Thereafter she was informed that she would not be paid for the month August, would only receive half of her September salary and her end of service gratuity would not be paid because she did not serve the one month notice period and did not work for a complete year. Despite this, the Claimant submits that she diligently conducted her handover and returned all the items belonging to the Defendant that were in her ownership.
6. In response to this, the Defendant alleges that the Claimant’s resignation was received before completing one year of service and is therefore not eligible for gratuity. In addition, the Defendant submits that the Claimant took her leave on 20 August 2015 and did not complete the one month notice period.
7. Furthermore, the Defendant alleges that the Claimant availed 10 days of leave from 4 May 2015 to 15 May 2015 and due to the fact that it was her first year of employment, she is only eligible for leave on an accrual basis. The Defendant also alleges that the Claimant has not handed over the assignments assigned to her in a proper manner and that without informing or seeking permission from the Defendant, the Claimant deleted all her emails which subsequently caused damage to the business.
8. As such, the Claimant filed a claim with the Small Claims Tribunal in the DIFC Courts seeking her August salary in full, half of September’s salary and her end of service gratuity pay.
9. The parties failed to settle at the consultation meeting held before Judicial Officer Nassir Al Nasser. As a result, on 11 October 2015, both the Claimant and the Defendant’s representative appeared before me.
10. The first question is whether the Claimant completed one year of employment. As a general rule, the effective date of termination is the date the notice expires. The Claimant joined on 14 September 2014 and provided a letter of resignation on 13 August 2015 giving one month notice until 15 September 2015 which was approved by the Defendant. However, the Defendant argues that the Claimant did not serve the notice period and went on her annual leave.
11. On 17 June 2015, the Claimant requested to take her annual leave from 20 August 2015 to 15 September 2015, and at the time of her resignation on 13 August 2015 the Defendant was well aware of her annual leave but nevertheless granted the leave in any case. The Defendant did not provide any evidence to the Courts that indicated they communicated with the Claimant to hold off on the annual leave or agreed with the Claimant that she shall work for an additional one month after her annual leave. Therefore, the Defendant waived the notice and I am satisfied that the Claimant is entitled to her one month notice calculated as follows: 14 August 2015 to 15 September 2015 in the sum AED 7,000, pursuant to Article 59(3) of the DIFC Employment Law which provides that:
“This article shall not prevent an employer and employee from agreeing to a longer or shorter period of notice nor shall it prevent either party from waiving notice or from accepting a payment in lieu of notice”.
12. The Defendant further argues that the Claimant was in excess of her annual leave as per her employment contract, as the Claimant’s annual leave is 30 calendar days per annum. In response to this, the Claimant argues that the Defendant accepted the annual leave form and that the excess was due to her working during the public holidays. The Claimant went on leave for 10 days in May 2015 and applied for 24 days from 20 August 2015 to 15 September 2015 and although she submitted an attendance sheet (which was not ratified by the company) I am not satisfied with the evidence provided. Therefore, the Claimant is in excess of four days which she is not entitled to, calculated as follows: the daily wage of AED 233.33*4 days = AED 933.33.
13. As mentioned above in paragraph ten, the Claimant worked from 14 September 2014 to 15 September 2015. Therefore, the Claimant completed continuous employment of one year and is entitled to gratuity payment pursuant to Article 62(1) of the DIFC Employment Law. As such I am satisfied that the Claimant is entitled to gratuity payment calculated as follows: AED 7,000/30 days = AED 233.33 per day, 233.33*21 = AED 4,900 pursuant to Article 62(2)(a) of the DIFC Employment which provides that gratuity payment shall be paid as follows:
“Twenty one (21) days’ basic wage for each year of the first five (5) years of service.”
14. For the reasons stated above, the Defendant shall pay the Claimant the sum of AED 15,400.00 plus Court Fees and the Claimant shall pay the Defendant the sum of AED 933.33 for the four excess days in annual leave.
Nassir Al Nasser
Date of issue: 22 October 2015
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