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Giang v Gigi [2016] DIFC SCT 052

Giang v Gigi [2016] DIFC SCT 052

May 22, 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

BEFORE SCT JUDGE NATASHA BAKIRCI

BETWEEN

GIANG 

   Claimant

and

 

GIGI

                                     Defendant

Hearing:          12 May 2016

Judgment:       22 May 2016


JUDGMENT OF SCT JUDGE NATASHA BAKIRCI


UPON this claim having been called on 2 May 2016 for consultation before SCT Officer Mahika Hart;

UPON the parties not having reached settlement;

UPON a hearing having been held before SCT Judge Natasha Bakirci on 12 May 2016, with the Claimant and the Defendant’s representative attending;

AND UPON reading the documents submitted in the Court file;

IT IS HEREBY ORDERED THAT:

1.The Defendant shall add the Claimant’s medical bills, in the sum of AED 6,460, to her end-of-service settlement.

2. The Claimant’s claim regarding sick leave in respect of the time she spent in Spain is dismissed.

3. The Defendant shall not deduct AED 3,000 for training against the Claimant’s end-of-service settlement.

4. The Defendant shall cancel the Claimant’s visa.

5. The Defendant shall reimburse the Claimant in the amount of AED 393.23 for Court fees.

THE REASONS

Parties

1.The Claimant, Giang is a Spanish national who was employed as a “Teacher Assistant” by the Defendant.

2. The Defendant, Gigi Nursery is a children’s daycare facility located in the DIFC.

Background

3. On 30 April 2015 the Claimant entered into an employment contract (‘the contract”) with the Defendant to “work for the Company as Teacher Assistant for a period of 2 years,” the commencement date of the contract was 25 May 2015. Section 5 of the contract provides the following as regards Medical Coverage – “5.1 The Employer will bear the cost of the medical treatment required by the Employee during the period of this Contract. 5.2 Subject to medical recommendation, the Employee will be entitled to fifteen (15) days sick leave on full pay plus thirty (30) days on half pay for each year of service. “

4. The case file includes another employment contract between the Claimant and the Defendant dated 6 April 2015, with a commencement date of 17 May 2015 where the Claimant undertakes to work for the Defendant as a babysitter for a period of 2 years, however the copy is not signed.

5. On 25 November 2015 the Claimant signed a document titled “Amendment to Employment Contract” (“amendment”) which provided the following, inter alia, “5. Medical Coverage – Suspended temporarily (until further notice);” “14. Sickness Absence – 14.2 . . . sick pay is discretionary and may be reduced or suspended or terminated at the Company’s discretion;” “14.3 – A doctor’s certificate must be produced for any absence and must cover the full absence period. Medical certificates are available from any doctor but must be attested by a government hospital.”

6. The contract states at Clause 13.5 that it shall be governed by the “Laws of the Emirate of Dubai and the United Arab Emirates and the courts in Dubai shall have a non-exclusive jurisdiction to hear and determine all disputes arising under this Contract, subject to the provisions of (resolution of Labor Disputes) of the Employment Regulations.” The contract also states that the “[e]mployee’s employment is at all times subject to the Dubai International Financial Centre Employment Law and Regulations . . . and any subsequent provisions, which may from time to time be issued by the Dubai International Financial Centre authority.” The purported amendment states that it is subject to and governed by the DIFC Employment Law.

The Claim

7. On 19 April 2016 the Claimant lodged a claim with the DIFC Courts Small Claims Tribunal (SCT) against the Defendant, in which she claimed: (i) her medical bills and sick leave during the course of her employment; and (ii) reimbursement of AED 3,000 (Emirati dirhams) which the Defendant sought to deduct from her end-of-service settlement for on the job training. The Claimant also requested that the Defendant cancel her visa. The total amount of the claim was $5,457 USD (US dollars).

8. The Claimant has included a letter dated 11 April 2016 from a Doctor, based at the Medical Center in Dubai explaining that she has been suffering from left knee pain and has been diagnosed with ITB strain and advised to do physiotherapy. Moreover, the letter makes reference to different medical reports provided by the Claimant from the Spanish National Health system.

9. Due to the cost of medical treatment in Dubai and to seek a second opinion, the Claimant moved to Spain from 22 December 2015 until 19 February 2016. During this period, the Defendant was informed via email about the medical treatment and the sick leave certificates that the Claimant had been receiving in Spain.

10. The Claimant returned to Dubai on 28 February 2016 and attested the Spanish sick leave certificates in the Dubai clinic where she had been receiving treatment before going to Spain. Due to her persistent health problems, the Claimant handed in her resignation letter on 22 March 2016.

11. The Claimant accepts that she took fire drill training which cost AED 553 but disputes the AED 3,000 which the Defendant seeks to deduct from her end-of-service settlement for unidentified training whilst on the job. The Claimant has refused thus far to sign any documents to cancel her visa, as in so doing she would not be entitled to claim anything from the Defendant.

The Defence

12. On 26 April 2016 the Defendant submitted a document titled “Application to Dispute the Jurisdiction” to the SCT, signed by the Managing Director. It is argued that the Claimant had signed an amendment on 25 November 2015 (see paragraph 5 above) in which she had accepted that her medical coverage be suspended temporarily until further notice. Therefore, the Defendant would not cover the Claimant’s medical bills.

13. As regards the Claimant’s sick leave, the Defendant contended that the Claimant had left work early 3 times due to medical reasons during the course of her employment, namely on 31 May 2015, 30 June 2015 and 6 December 2015. She had come late to work on 6 July 2015 due to medical reasons and had taken 16 sick days, namely on 1 until 2 July 2015, 18 to 19 October 2015 and 6 to 17 December 2015. Neither these periods of sick leave nor the lateness had been deducted from her salary.

14. The Claimant had then travelled to Spain to visit her family for the holidays and to have a second opinion regarding her medical matter, during which time she had kept the Defendant notified via emails and sick leave certificates issued in Spanish. After the Claimant had returned to Dubai she had asked the Defendant to pay for her leave from 22 December 2015 until 28 February 2016. The Claimant had been informed of company policy which required that her sick leave certificates be attested by a government hospital in Dubai in order for this leave to be recognised, however she had only provided a letter from a private clinic.

15. The Defendant further asserted that the Claimant was required to go through training in order to be able to follow their nursery’s approach to educating children.

16. On 10 May 2015 the Defendant submitted a letter to the SCT Registry which sought to rely on an announcement sent by the DIFC regarding Dubai Health Insurance Law No. 11. This announcement stated that: “As a part of the implementation of Health Insurance Law No. 11 of Dubai conducted by Dubai Health Authority (DHA), we would like to inform you that all DIFC sponsored employees must have a local insurance coverage from one of the authorised insurance companies before the deadlines specified by DHA. Important notes: Companies with 100 to 1,000 employees will have to comply before 30 July 2015, Companies with less than 100 employees will have to comply before 30 June 2016 . . .” The Defendant, as maintained by their representative at the hearing understood that to mean that they were under no obligation to provide health insurance to their employees before 30 June 2016.

Discussion

A. Medical bills

17. As regards the Claimant’s claim for the reimbursement of her medical bills, I would refer to Article 53 of the DIFC Employment Law, DIFC Law No. 4 of 2005, as amended by DIFC Employment Law Amendment Law, DIFC Law No. 3 of 2012 which provides as follows:

“53. Health insurance

An employer is required to obtain and maintain health insurance cover for its employees.”

18. It transpired from the hearing held before me on 12 May 2016 that the Defendant did not have a health insurance scheme in place for its employees, rather they would pay for employees’ medical bills as and when considered appropriate. Even assuming that the purported “amendment” signed by the Claimant was valid, the Defendant cannot renege on its obligation under Article 53 of the DIFC Employment Law to “obtain and maintain health insurance cover for its employees.” It follows that the Claimant is entitled to reimbursement of her medical bills during the course of her employment. During the hearing held on 12 May 2016 this was valued at AED 6,460 and such figure is supported by the Claimant’s submission of medical bills. Therefore, the Defendant should add AED 6,460 to the Claimant’s end-of-service settlement.

B. Sick Leave

18. The Claimant further claimed the payment of sick leave for her periods of absence whilst in Dubai and also whilst pursuing a second medical opinion in Spain.

Article 34 of the DIFC Employment Law provides the following as regards sick leave:

“34. Sick leave

(1) An employee is entitled to sick leave not exceeding a maximum of sixty (60) working days in aggregate in any twelve (12) month period.

(2) An employee who requests leave under this section shall personally, or have someone on the employee’s behalf:

(a) at least once every seven (7) days during a period of absence, notify the employer that the employee is unable to fulfil the duties reasonably expected in the employee’s position because of the employee’s sickness; and

(b) if required by the employer, provide a medical opinion that states that the employee cannot fulfil the duties reasonably expected in the employee’s position.

(3) Where an employee is absent because of sickness, the employer shall, if the conditions set out in Article 34(2) are satisfied, pay the employee sick pay for that day.

(4) An employer who would, apart from Article 34(2), be liable to pay sick pay to an employee, is entitled to withhold the sick pay if the employee failed to give notice to the employer as required under Article 34(2).”

Article 10 of the DIFC Employment Law, under Part 2 Hiring Employees, provides as follows:

“10. No waiver

(1) The requirements of this Law are minimum requirements and a provision in an agreement to waive any of those requirements, except where expressly permitted under this Law, has no effect….”

20. The central question here is whether the Defendant was entitled to enter into contractual terms with the Claimant as provided under paragraph 14.2 and 14.3 of the amendment dated 25 November 2015 (see paragraph 5 above).

21. I find that Article 10 of the DIFC Employment Law does not allow the Defendant, as an employer, to waive any of the minimum requirements that Law establishes. Consequently, the Defendant was precluded from reducing, suspending or terminating the Claimant’s sick pay as they attempted to do at paragraph 14.2 of the amendment, as it is not in fact discretionary as they suggest.

22. The next issue is whether it was open to the Defendant to require that medical certificates be “attested by a government hospital” as per 14.3 of the amendment.

23. The Defendant has accepted that the Claimant “kept the Company notified via emails and sick leave certificates issued in Spanish” during her stay in Spain. However, the Defendant asserts that they had informed the Claimant that “all sick leave certificates should be attested by a government hospital in Dubai.” Article 34(2)(b) of the DIFC Employment Law allows employers to require their employees to “provide a medical opinion that states that the employee cannot fulfil the duties reasonably expected in the employee’s position.”

24. The Claimant provided the Defendant with copies of a number of sick leave certificates issued by the clinics she had visited whilst in Spain, copies of which have been included in the case file. The last of such Spanish certificates is dated 11 February 2016 and recommends rest until 18 February 2016. A letter provided by Doctor at the Dubai Medical Center dated 11 April 2016 refers to these “different medical reports from the Spanish National Health system.” I do not find Doctor’sgeneral reference to those Spanish language medical reports to be sufficient to constitute a medical opinion “that states that the employee cannot fulfil the duties reasonably expected in the employee’s position,” as he does not explain the content of those letters or expressly state that the Claimant was not able to work during that period. The question that remains is whether the Spanish certificates recommending relative rest, “reposo relativo” were sufficient.

25. Article 34(4) of the DIFC Employment Law provides that “an employer who would, apart from Article 34(2), be liable to pay sick pay to an employee, is entitled to withhold sick pay if the employee failed to give notice to the employer as required under Article 34(2)”. It has not been made out clearly from the information presented in the case file or at the hearing that the Claimant complied with Article 34(2)(a) – to notify her employer that she was unable to fulfil her duties at least once every seven days, or Article 34(2)(b) – to provide a medical opinion that stated that she could not fulfil her duties, at least in a form or language that the employer could reasonably be expected to understand – leave aside the fact that it was not attested by a government hospital.

26. In my view, it follows that the Defendant is entitled to withhold sick pay to the Claimant in respect of the time she was in Spain.

C. Training

27. The Defendant sought to deduct AED 3,000 from the Claimant’s end-of-service settlement in respect of general on the job training. Article 19 of the DIFC Employment Law provides as follows:

“19. No unauthorised deductions

An employer shall not deduct from an employee’s wages or accept payment from an employee, unless:

(a) the deduction or payment is required or authorised under a statutory provision or the employee’s contract of employment;

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

(c) the deduction or payment is a reimbursement for an overpayment of wages or expenses; or

(d) the deduction or payment has been ordered by the Court.”

28. I have found no document or evidence in the case file setting out the parameters or duration of this supposed training, nor the Claimant’s responsibility to pay for it. Therefore, I do not find that the Claimant owes AED 3,000 for general training to the Defendant.

29. There is also reference in the file, further discussed at the hearing to AED 553 for fire drill training. The Claimant appears to accept in her SCT claim form that she should pay for this, stating in her particulars of claim that: “I did not assist to any training apart from the fire training that costs 553 AED and I need to pay for it.” I therefore find that the sum of AED 553 is correctly deducted against the Claimant in the proposed end-of-service settlement as this has not been disputed.

Findings

30. The Claimant is entitled to be reimbursed for her medical bills during the course of her employment in the sum of AED 6,460. The Defendant is not obliged to pay the Claimant for sick leave in respect of the period she was in Spain, as per my reading of Article 34(4) of the DIFC Employment Law. The Defendant is entitled to deduct AED 553 against the Claimant’s end-of-service settlement for fire drill training, but cannot deduct the additional AED 3,000 for on the job training. The Defendant should cancel the Claimant’s visa.

Issued by:

Mark Beer

Senior Registrar

Date of issue: 22 May 2016

At: 3 pm

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