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Grear v Greetj Restaurant LLC [2016] DIFC SCT 128

Grear v Greetj Restaurant LLC [2016] DIFC SCT 128

October 11, 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

 

GREAR 

   Claimant

and

GREETJE RESTAURANT LLC

   Defendant

 

 

Hearing:          7 September 2016

Judgment:       11 October 2016


JUDGMENT OF SCT JUDGE NATASHA BAKIRCI


UPON this claim having been called on 23 August 2016 for a Consultation before SCT Officer Mahika Hart;

UPON the parties not having reached settlement;

UPON a Hearing having been held before me on 7 September 2016, with the Claimant and the Defendant’s representative attending;

AND UPON reading the documents submitted in the Court file and hearing the parties’ arguments at the Hearing;

IT IS HEREBY ORDERED THAT:

1.The Defendant shall pay the Claimant a final settlement of AED 12,614.95 owed by the Defendant for unpaid salary.

2. The Defendant is not entitled to make any deductions against this final settlement.

3. The Defendant shall pay the Claimant AED 12,986.02 as penalties under Article 18(2) of the DIFC Employment Law and an additional AED 164.38 per day from the issuance of this Judgment until payment is made.

4. The Defendant is required to cancel the Claimant’s visa without delay, such procedure to be completed by no later than 25 October 2016.

5. The Defendant shall reimburse the Claimant’s Court fee in the amount of AED 722.91.

THE REASONS

Parties

6. The Claimant, Grear is an Italian national who was employed as a “Waitress” by the Defendant company.

7. The Defendant, Greetje Restaurant LLC, is a restaurant facility located in the DIFC.

Background

8. The Claimant began working for the Defendant on 10 February 2016 as per the employment contract between the parties commencing on that same date. The Claimant began working as a “Waitress” for AED 5,000 per month basic salary.

9. The Claimant continued to work at the Defendant company until she submitted her resignation on 23 June 2016, for termination on 10 July 2016 effectively giving 2 weeks’ notice. The Claimant then failed to attend work on 26 June 2016 until 10 July 2016 and there is dispute between the parties as to why, or if such absence had been approved in advance.

10. The Claimant did not receive her final payment or end of service benefits and as a result filed a Claim with the DIFC Courts Small Claims Tribunal (SCT). The Defendant alleges that she never came to them to collect her payment.

11. On 11 August 2016 the Claimant filed a Claim with the SCT seeking (i) unpaid salary for the months of February until July 2016, (ii) overtime payment, and (iii) damages. The total amount of the Claim was USD $10,031.98 (equivalent to AED 36,867.53). Initially, the Claimant filed her claim against her manager at the Defendant company but she amended her claim to be against Greetje Restaurant LLC after the Consultation, without any objection from the Defendant.

12. The Defendant responded on 17 August 2016 indicating its intent to defend against all of the claim. The Parties attended a Consultation on 23 August 2016 but were unable to reach a settlement. On 7 September 2016 I heard the parties’ arguments at a Hearing.

The Claim

13. The Claimant argued in her Claim Form that she was hired with a monthly salary of AED 5,000 but did not receive this full amount for the months of February until July 2016. She specifies that for the months of February and March she only received AED 1,500 instead of the full AED 5,000 and that for April and May she only received AED 3,500 instead of the full amount. Furthermore, she maintains that she has not received any salary for the months of June and July. The Claimant also claims AED 4,204 for unpaid overtime and AED 15,000 for unspecified damages against the Defendant.

14. The Claimant included with her Claim Form her employment contract of 10 February 2016, a letter she sent to her manager on 6 June 2016 regarding Ramadan hours, and her resignation letter of 23 June 2016.

The Defence

15. The Defendant provided their defence on 17 August 2016. First, they noted that the Claimant only started work on 10 February and thus should not be paid for the whole month of February. Similarly, the Defendant also contended that as the Claimant did not come to work in July, no payment was due for that month.

16. The Defendant argued that the Claimant had signed a release to be paid a lower salary in return for accommodation provided by the Defendant. Furthermore, the Claimant allegedly signed a second release agreeing to “unconditionally release, remise from all past claims, demands and payments” on 31 May 2016. The Defendant argued that based on this release, there is no payment owed to the Claimant for the time worked before 31 May 2016.

17. For the month of June, the Defendant admitted that the Claimant had not been paid but argued that she had only worked until 25 June 2016, not for the whole month. The Defendant alleged that the Claimant had absconded from work on 26 June 2016 without prior approval. Lastly, the Defendant claimed that it is entitled to retain AED 2,870 in respect of a visa fine paid on behalf of the Claimant.

18. After deducting the amounts for the visa fine, the Defendant argued that it owes the Claimant AED 163.42 as payment for June 2016 but is not willing to pay this amount as the “company has been damaged by the employee.”

Subsequent Submissions

19. After the Consultation, the Claimant supplemented her Claim with further evidence including an alleged work schedule listing the staff hours from 19 March 2016 until 10 July 2016.

20. The Defendant also sent a subsequent submission which mainly reiterated its arguments detailed above. In support of its previous arguments, the Defendant submitted evidence reflecting that many of their other employees have signed similar releases to the two submitted as regards the Claimant. The Defendant also submitted several new employment contracts signed with staff in June 2016 in support of the argument that these employees “waive[d] any past claim.”

21. The Defendant argued that the Claimant failed to give six weeks’ notice of her resignation as required by the employment contract. Furthermore, the Defendant denies that any vacation time was approved for the Claimant for the time from 26 June 2016 onwards. The Defendant claimed that the Claimant had not earned these vacation days as she had not worked for the company long enough.

22. With regard to the overtime claim, the Defendant argues that there was never any request from the Defendant for overtime work and no proof of this claim. The Defendant also denied the validity of the work schedule submitted by the Claimant but provided no alternative schedule or log of hours into the court file.

23. The Defendant alleged a further claim regarding the Claimant’s work as a “PRO” for the company. The appointed individual registered as a PRO with DIFC Government Services is an individual responsible for submitting and collecting documents for action from DIFC Government Services and other administrative work. The Defendant claimed that it appointed the Claimant as a PRO due to her language skills but that it had to hire an outside vendor to help with a transfer of shares because the Claimant was acting as the PRO but “was on strike.”\

24. The Defendant denied any claim for damages, maintaining that any such allegations were groundless.

Hearing

25. At the Hearing, the parties elaborated on their positions.

A. The Claimant’s Arguments

26. The Claimant contended that she had not been paid fully for Ramadan. She asserted that she had been approved vacation time from 26 June 2016 for 5 days but when she came back from holiday she was told she would not be paid so she did not come back to work and instead filed a claim with the SCT. She claimed that as she was within her probation period she was only required to give 7 days’ notice of resignation. While she did not claim vacation time in her Claim Form, she reiterated that she just wants to receive what is rightfully owed to her.

27. The Claimant also mentioned her desire to claim penalties against the Defendant as per Article 18 of the DIFC Employment Law.

28. As for the deductions she had allegedly agreed to by signature, she argued that such deductions were not provided for in her contract and that she understood them to be more of a receipt rather than an agreement to reduced salary. Furthermore, there is a language barrier and some uncertainty between the parties as to what exactly the releases mean.

29. Additionally, the Claimant argued that she wants her visa cancelled and that she was told by the manager that she would not have to pay any fines and therefore should not be responsible for them.

30. As regards the Defendant’s allegation that the Claimant failed to provide sufficient service as an appointed PRO and thus caused the Defendant to incur expenses when administering the transfer of company shares, she argued that any expense incurred by the company was justified as she was hired as a waitress and was not required to provide the services of a PRO.

31. Lastly, she argues that she did not want to accept the company’s provided accommodation and would have rather been paid the full salary.

B. The Defendant’s Arguments

32. The Defendant asserted that the Claimant was to be paid her full salary for Ramadan but that payment for June had not yet been made. Furthermore, the Defendant argued that the Claimant did not work any overtime or any additional hours during Ramadan.

33. The Defendant admitted that their initial employment contract was not as robust as it should have been and highlighted their new contract, although the Claimant had not signed one of these new contracts.

34. The Defendant reiterated that up until 31 May 2016, the Claimant had acknowledged being paid in full by signing a release. When asked to detail how much the Claimant was paid for February and March, the Defendant was not able to confirm the amounts and instead claimed that they did not know where the Claimant’s calculation came from. Although discussed several times during the Hearing, it was never made clear exactly how much the Claimant was paid in February and March, the Defendant just reiterated that the Claimant had claimed too much for February by failing to account for her start date of 10 February 2016.

35. While the Defendant agrees that June payment is owed, they reiterate their right to deduct visa charges, although the Defendant admits that nothing was signed saying that the Claimant would cover the visa charges.

36. The Defendant alleges that the Claimant was free to opt-out of the company accommodation but failed to do so. The Defendant also mentioned that no probation period was applicable to the Claimant but also that she had not accrued any vacation time.

37. Finally, the Defendant made an argument that the Claimant “declar[ed] all dues paid” in the DIFC Government Services Portal as she had access to the portal due to her appointment as the company’s PRO. The Claimant denied this and argued that her visa remains valid and therefore has not been cancelled with “all dues paid.”

Discussion

38. The DIFC Courts and the Small Claims Tribunal have jurisdiction over this case as it concerns employment within the DIFC and the amount in question is less than AED 500,000.

39. This dispute is governed by the DIFC Law No. 4 of 2005, as amended by DIFC Law No. 3 of 2012 (the DIFC Employment Law) in conjunction with the relevant employment contract and any related amendments.

40. The Claimant seeks salary payments for February until July of 2016, overtime payments, unspecified damages and Article 18 penalties. The Defendant alleges deduction of visa fines and expenses for PRO services that the Claimant failed to provide. The Defendant further argues that the Claimant had released any past overdue payments as of 31 May 2016. Lastly, the Defendant alleges that the Claimant failed to give adequate notice of resignation, did not work in July, absconded from work on 26 June 2016 and has over claimed for the month of February.

41. I will address each of the claimed items to determine the final amount owed to the Claimant, responding to the Defendant’s arguments in turn.

C. Outstanding Pay and Allowances

42. The Claimant alleged underpayment for February and March 2016 in the amount of AED 3,500 per month and underpayment for April and May in the amount of AED 1,500 per month.

43. The Defendant alleged that the Claimant signed two releases which preclude her from claiming these amounts. First, the Defendant submitted a release from 30 April 2016 stating that “I, the undersigned Grear hereby declare that I received my balance salary for the month of April with total amount 4000, subsequently they have been deducted from the salary 500 for the apartment bills. Thanks, Grear.” Second, the Defendant submitted a release dated 31 May 2016 which states “I, the undersigned Grear hereby declare that I received my balance salary for the month of May with total amount 4000, subsequently they have been deducted from the salary 525 for the apartment bills. Thanks, The Parties agree to unconditionally release, remise from all past claims, demands and payments Grear.”

44. The Claimant does not deny that she signed these releases, but alleged that they were not meant as acceptance of a lower salary but instead acceptance of accommodation and bills. The employment contract signed between the parties, which neither party contests, lists the Claimant’s salary as AED 5,000 per month with no mention of accommodation or apartment bills. The contract states that “the Company reserves the right, with appropriate consultation with you, to change your base.”

45. Article 19 of the DIFC Employment Law states that “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 . . .”

46. While the contract of employment reserves the Defendant’s right to change the Claimant’s salary “with appropriate consultation,” this provision in the employment contract is not sufficient to satisfy Article 19(a) for an authorised deduction under the terms of the employment contract.

47. Additionally, while the Defendant relies on the release signed by the Claimant on 31 May 2016 stating that “The Parties agree to unconditionally release, remise from all past claims, demands and payments” such agreement was made on 31 May 2016 and thus was not “previously agreed in writing” as required by Article 19(b) of the DIFC Employment Law. I make no comment as to whether the release clause, had it been signed previous to the deductions, would be sufficient to satisfy Article 19(b).

48. Therefore, as the Defendant has not met the qualifications of Article 19 of the DIFC Employment Law for making deductions against the Claimant’s pay, her salary as per the employment contract stands for the months of February until May 2016. The Defendant submitted no evidence to contradict the specific amounts claimed by the Claimant for these months and did not allege that she was paid any more than she claimed she received. When asked to clarify the amount paid for February and March, the Defendant’s representative did not give a clear answer and instead stated that he did not know where the calculation came from.

49. In fact, reliance on the release signed by the Claimant on 31 May 2016 provides support for the Claimant’s contention that she was not paid a full AED 5,000 for these months of work. Notwithstanding, the Claimant only began work on 10 February 2016 and her claim must be adjusted to account for the first 9 days of February.

50. As regards payment for June 2016, the parties are in agreement that the Claimant worked from 1 June to 25 June but has not yet been paid. As for payment for July 2016, the Claimant acknowledges that she did not work in July. Therefore, she is not owed any salary for this time. Thus, I find that the Claimant is owed the following amounts:

Days Worked Salary Due Salary Paid Remainder Owed
10 – 29 February AED 3,448.27

((AED 5,000/29 days) x 20 days worked)

AED 1,500 AED 1,948.28
1 – 31 March AED 5,000 AED 1,500 AED 3,500
1 – 30 April AED 5,000 AED 3,500 AED 1,500
1 – 31 May AED 5,000 AED 3,500 AED 1,500
1 – 25 June AED 4,166.67

((AED 5,000/30 days) x 25 days worked)

None AED 4,166.67
July None None None
Total: AED 12,614.95

 

D. Notice Period and Vacation Time

51. The Claimant did not make any claims as to the notice period, although she did make a claim for payment from 26 June until 10 July 2016. The Defendant responded stating that the Claimant failed to serve her required notice period and instead absconded from work.

52. It has been confirmed by both parties that the Claimant submitted her resignation on 23 June 2016 with an expected termination date of 10 July 2016. It is further agreed that the Claimant’s last day of work was 25 June 2016 after which time she did not work. The reason for this is contested, with the Claimant alleging that she was approved 5 days of vacation and then did not return to work upon the former manager telling her she would not be paid while the Defendant alleges that the Claimant absconded as of 26 June 2016.

53. The employment contract states that the Claimant is “obliged to give the Company 6 weeks’ notice to terminate your contract of employment.” While the Claimant made some objection that she was within a probation period, there is no evidence of a probation period with shorter notice period in the case file. However, although 6 weeks was required as per the contract, the Claimant’s resignation letter of 23 June 2016 with a termination date listed as 10 July 2016 was accepted by the Defendant as per the company stamp and the Defendant has not submitted any evidence that they objected to the Claimant’s proposed termination date.

54. As per Article 59(3) of the DIFC Employment Law, parties are free to agree to notice periods and may waive such notice periods or accept payment in lieu of notice. The Defendant effectively accepted the Claimant’s shortened notice period as per the Claimant’s resignation letter.

55. As for the Defendant’s claim that the Claimant absconded from work as of 26 June 2016, the Defendant did not report the Claimant as absconding or submit any evidence of this. As it is unclear whether the Claimant was approved for vacation time or whether the Claimant absconded from work, I find it appropriate that the Claimant shall not be paid for any time beyond 26 June 2016 but that the Defendant shall not be entitled to any damage for the Claimant’s failure to serve the required notice period.

56. Furthermore, as the Claimant has not made a claim for her unused vacation time in her Claim Form and did not articulate a claim for such amounts at the Hearing, I will not address payment in lieu of vacation time accrued in this judgment.

E. Overtime, Damages and Article 18

57. The Claimant claimed AED 4,204 for overtime worked but did not provide a breakdown for this calculation. The Claimant also provided a work log of time worked from 19 March 2016 through 10 July 2016 although the Defendant contends that this log is inaccurate.

58. Upon review of the log, it is not clear that the Claimant worked overtime in the amount of AED 4,204 or overtime at all. Upon review of the Claimant’s log, the Claimant, identified as “Laura” in the log, is not listed as working more than 54 hours in any given week. As the log does not account for breaks, it is not clear that the Claimant worked more than the maximum weekly working time of 48 hours in any 7-day period, as defined in Article 21 of the DIFC Employment Law. Therefore, the Claimant’s request for overtime payment is rejected.

59. In the Claim Form, the Claimant also claims AED 15,000 in unspecified damages. At the Hearing, the Claimant further clarified that she intended to claim for penalties under Article 18 of the DIFC Employment Law, which provides as follows:

“(1) An employer shall pay all wages and any other amount owing to an employee within fourteen (14) days after the employer or employee terminates the employment.

(2) If an employer fails to pay wages or any other amount owing to an employee in accordance with Article 18(1), the employer shall pay the employee a penalty equivalent to the last daily wage for each day the employer is in arrears.”

60. The Defendant admits in its submissions that at the very least, they owed the Claimant AED 163 for work done in June and they contend they are not willing to pay it as a result of damages incurred as a result of the Claimant’s actions. However the Defendant has made no counterclaim. The Defendant also alleged that the Claimant never came to pick up her entitlements and thus there was “no chance to pay” her. Instead, the Defendant argued, the Claimant filed a case without collecting her payment.

61. The Defendant has not shown any proof of their attempts to pay the Claimant what she was owed within 14 days of her termination. Under the DIFC Employment Law, it is the Defendant’s responsibility to show they have made the effort to pay the amounts owed within 14 days, otherwise the penalty may accrue.

62. Therefore, in accordance with the DIFC Courts precedent set by the judgment of Justice Roger Giles in Asif Hakim Adil v Frontline Development Partners Limited (CFI-015-2014, 3 April 2016) and the judgment of H.E. Justice Ali Al Madhani in Pierre-Eric Daniel Bernard Lys v Elseco Limited (CFI-012-2014, 14 July 2016), the Claimant is entitled to Article 18 penalties running from 14 days after her official date of termination until the date payment is made. While these two judgments are currently being appealed, the law of the DIFC Courts remains as stated therein. For the purposes of Article 18, the Claimant’s date of termination shall be 10 July 2016, as agreed between the parties, although both parties acknowledged that the Claimant’s last day of work was 25 June 2016.

63. Therefore, the penalty begins to run from 25 July 2016 in the amount of AED 164.38 per day ((AED 5,000 x 12) / 365 calendar days). Thus, as of the date of this Judgment, the penalty owed is 79 days from and including 25 July 2016 until 11 October 2016, totaling AED 12,986.02 with the daily penalty of AED 164.38 continuing to run starting 12 October 2016 until the day of payment.

F. Deductions against Final Settlement

64. The Defendant has sought to make two deductions against the Claimant’s final settlement for visa penalties (AED 2,870) and costs connected with hiring a vendor to perform PRO services (AED 3,365).

65. As mentioned above, deductions made against salary or entitlements must follow the provisions of Article 19 of the DIFC Employment Law. In summary, Article 19 states that employers shall not deduct anything from employee’s wages unless such deduction is authorised by law, the employee agreed to the deduction in advance in writing, the deduction is for overpayment or the deduction has been ordered by the Court.

66. Upon careful review of the case file, none of the above provisions of Article 19 apply to the two deductions claimed by the Defendant. Therefore, the deductions attempted to be applied by the Defendant in their submission against the Claimant’s final settlement are rejected as unsubstantiated.

G. Cancellation of Visa

67. The Claimant sought cancellation of her visa as she no longer worked for the Defendant and would like to obtain other employment. The Defendant has lodged no objection to cancelling the visa but has been reluctant to pursue cancellation until the claim between the parties is resolved.

68. As there is nothing to prevent visa cancellation while a claim is pending in the DIFC Courts, in fact the DIFC Government Services Office provides mechanisms to cancel visas in exactly such circumstances, there is no reason to delay this process.

69. Therefore, the parties are directed to cooperate to provide for the Claimant’s visa cancellation at the earliest possibility and certainly no later than 14 days from the issuance of this Judgment.

Findings

70. The Claimant is entitled to a final settlement of AED 12,614.95 owed by the Defendant for unpaid salary.

71. The Defendant is not entitled to make any deductions against this final settlement.

72. The Defendant is required to pay the Claimant AED 12,986.02 as penalties under Article 18(2) of the DIFC Employment Law and an additional AED 164.38 per day from the issuance of this Judgment until payment is made.

73. The Defendant is required to cancel the Claimant’s visa without delay, such procedure to be completed no later than 25 October 2016.

74. Finally, the Defendant is required to pay the Claimant’s Court fee in the amount of AED 722.91.

 

 

Issued by:

Natasha Bakirci

SCT Judge

Date of issue: 11 October 2016

At: 4 pm

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