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Gaspar v Gavrilla & Company [2016] DIFC SCT 011

Gaspar v Gavrilla & Company [2016] DIFC SCT 011

April 3, 2016

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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

GASPAR

   Claimant

and

GAVRILLA & COMPANY

                                                Defendant

 

Hearing:                        21 March 2016

Judgment:                    3 April 2016


JUDGMENT OF H.E. JUSTICE SHAMLAN AL SAWALEHI


The Parties

1.The Claimant is Gasper, a solicitor registered in England and Wales.

2. The Defendant is a branch of Gavrilla & Company, a limited liability partnership registered in the DIFC at xxxx.

Background

3. The Claim arises out of an offer of employment (the “Offer”) made via email by the Defendant on 4 December 2015 and accepted by the Claimant on 7 December 2015.

4. The Offer was made subject to the Defendant receiving two satisfactory references from former employers, one of which was required as being from the Claimant’s ‘last employer’. The Claimant provided references on 7 December but the Defendant discovered on or around 11 January 2016 that the Claimant’s actual last employer was orange company (“OC”) and this employment had not been disclosed to the Defendant, nor had any reference been provided from OC.

5. The Claimant was also required to complete a “New Fee Earner Questionnaire – Dubai” form which was returned to the Defendant on 23 December 2015. In Section 2 “Practising Certificate and Regulatory Issues – UK”, in answer to the question of whether the Claimant had ever had a civil judgment against him, he ticked the ‘No’ box, however the Defendant discovered on or around 11 January 2016 that the Claimant had a civil judgment against him at first instance and on appeal in the DIFC Court, regarding a rental dispute.

6. The parties had agreed a start date of 18 January 2016 but on 12 January 2016 it was communicated to the Defendant via a recruitment agent that he should not report for work.

7. The Claimant subsequently emailed the Defendant seeking to explain that his contract with OC was short term and why it may have been omitted from his CV; the Defendant replied on 14 January 2016 stating this was considered a misleading and material omission from the Claimant’s employment history and, therefore, his recruitment would not be proceeded with. 

The Claim

8. It is the Claimant’s case that there was a valid and binding employment contract (the “Contract”) which he relied upon and the Defendant breached by preventing the Claimant from reporting for work days before the agreed starting date. As a result, the Claimant seeks the following remedies from the Defendant:

(i) USD 480.32 as relocation costs including flights, hotels and ancillary expenses;

(ii) USD 40,838.55 as payment in lieu of a three month notice period;

(iii) USD 2828.24 as payment in lieu of leave during the notice period;

(iv) USD 10,209.64 being the loss of bonus entitlement for the notice period;

(v) USD 408.00 as payment in lieu of health insurance for the notice period;

(vi) USD 431.68 being the cost of renewal of the Claimant’s practicing certificate;

(vii) USD 453.76 as a daily wage from 28 January 2016 until full payment of the claim has been made;

(viii) Any further or alternative relief as the Court sees fit;

(ix) Any Court imposed damages with respect to the Claimant’s loss of opportunity caused by the breach; and

(x) Any Court imposed interest.

Defence and Counterclaim

9. The Defendant denies that there is a valid and effective Contract as the Offer was made conditional on the Claimant providing a reference from his ‘last employer’ and this had not been satisfied; the Defendant submits that the Contract would have come into effect only if this condition precedent had been complied with and as it was not, the Claimant is not entitled to any rights provided for under the Contract.

10. The Defendant disputes the Claim entirely and in relation to reimbursement of the cost of the Claimant’s Practising Certificate, the Defendant submits that their Human Resource Manager agreed to reimburse the cost but this constituted a separate contract between the Claimant and Defendant.

11. Alternatively, in the event that there is found to be a valid Contract, the Defendant submits that the employment was terminated for cause via email on 14 January 2016 as a result of the Claimant’s gross misconduct; which included dishonestly informing the Defendant of his last place of employment and dishonestly stating that he had no civil judgments against him.

12. It is the Defendant’s case that it was induced into the Contract as a result of misrepresentations of fact made by the Claimant and the consequent losses suffered make up the Counterclaim:

(i) AED 2,680 being the fee for transfer of employment;

(ii) AED 2,500 as the PSA deposit;

(iii) AED 3,458 as Management time; and

(iv) AED 1,617.28 being the Practicing Certificate fee.

History of Proceedings

13. The parties’ representatives met for consultation with Judicial Officer Maha Al Mehairi on 24 February 2016 but failed to reach a settlement.

14.On 3 March 2016 H.E. Justice Shamlan Al Sawalehi issued an Order dismissing the Claimant’s application for the Defendant’s further submissions dated 2 March 2016 to be struck off the record for being filed out of time.

15. On 21 March 2016 this case was heard before H.E. Justice Shamlan Al Sawalehi.

Discussion

The Claim

16. It is for the Claimant to prove on the balance of probabilities that there was a valid and binding Contract and that the Defendant breached the terms of that Contract, causing the Claimant harm. This Claim hinges on whether a valid Contract exists and therefore I turn my attention to the terms of the Offer made.

17. The Offer was contained in a letter dated 3 December 2015 which was emailed to the Claimant on 4 December 2015 and included the following statement:

“The offer is subject to the firm receiving two satisfactory references from former employers (one of which must be your last employer)”

18. I am satisfied that the Claimant did provide the Defendant with two references, however neither of these was from OC, who it transpired (and it is accepted by the Claimant) was the Claimant’s last employer, albeit under a short term contract.

19. The Claimant seeks to explain that he did not review the CV that was sent to the Defendant prior to the Offer being made and therefore cannot be responsible for any omission of OC from his employment history. Even if this argument is accepted by the Court, it does not mitigate the fact that the Claimant actively put forward references from periods of employment prior to his time with OC. Therefore, he has not complied with the requirement to provide one reference from his ‘last employer’ which I am satisfied was set out in the Offer as a condition precedent.

20. The material issue in this case concerns the conditions contained in the Offer and as the signed Contract does not contain mention of these conditions, the question arises as to whether they form part of the Contract or not and I shall consider both scenarios:

(i) If the conditions of the Offer form part of the Contract, it would be a conditional Contract and the fact that the Claimant failed to satisfy those conditions would result in it being unenforceable for him;

(ii) If the conditions do not form part of the Contract, it would be an unconditional Contract. However, the Defendant retains the right to terminate the Contract at any time without notice and cause, as this was done before the Contract was implemented and there was no continuous period of employment the Claimant would still not be entitled to any benefits or compensation under the Contract.

21. I am inclined to find that the first scenario applies here and a conditional Contract was formed. As the Claimant failed to comply with the conditions set out in the Offer, it follows that there can be no valid and binding Contract to be enforced by the Claimant and consequently, the Claim must fail. As examined above, even in the event that there was an unconditional Contract, the Defendant would be able to terminate the Contract before it commenced, resulting in the same outcome.

22. It is worth clarifying the position with regards to the cost of the Claimant’s Practicing Certificate. I am satisfied that the Claimant would have been entitled to be reimbursed by the Defendant if he has satisfied the conditions set out in the Offer, however, as he failed to fulfill the requirement of a reference from his ‘last employer’ he cannot recover this cost from the Defendant, particularly as the Defendant did not benefit from the Claimant acquiring it.

The Counterclaim

23. The Defendant’s Counterclaim is premised on the assumption there is a valid Contract, therefore, as I have found that the Contract was conditional and the conditions were not met, there is no valid Contract and the Counterclaim must also fail. In my opinion, the Counterclaim was not supported by sufficient supporting evidence to be successful, in any event.

FOR THE ABOVE MENTIONED REASONS IT IS ORDERED THAT:

24. The Claimant’s Claim against the Defendant is dismissed.

25. The Defendant’s Counterclaim against the Clamant is dismissed. 

Issued by:

Maha Al Mehairi

Judicial Officer

Date of Issue: 3 April 2016

At: 3pm

 

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