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Ginny v Graeme Consulting Service DIFC [2016] DIFC SCT 184

Ginny v Graeme Consulting Service DIFC [2016] DIFC SCT 184

December 15, 2016

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Claim No. SCT 184/2016 

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

GINNY 

   Claimant

and

GRAEME CONSULTING SERVICE DIFC

                                     Defendant

Hearing:          5 December 2016

Judgment:       15 December 2016


JUDGMENT OF SCT JUDGE NATASHA BAKIRCI


UPON this Claim having been called on 14 November 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 5 December 2016, with the Claimant attending via phone and the Defendant’s representative attending in person;

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 AED 37,500 as salary for the months of April, May and half of June 2016.

2. The Claimant’s claim as to damages related to the delay and inability to process his employment visa is dismissed.

3. The Defendant shall submit to the DIFC Courts the remaining portion of the DIFC Courts’ Fee in the amount of AED 911.51.

THE REASONS

Parties

4. The Claimant, Ginny, is an Egyptian national allegedly employed by the Defendant company.

5. The Defendant, Graeme Consulting Service DIFC, is a consulting firm operating in the DIFC.

Background

6. The Claimant and Defendant entered into an Initial Employment Contract on 1 March 2016 which listed the Claimant’s employment as commencing on that same day. The Claimant’s Initial Employment Contract listed him in the position of “Business Consultant” and provided for a three-month probation period.

7. Once it became clear that the Claimant’s visa application was being delayed due to his failure to provide a valid Education Certificate, the parties entered into an Amended Employment Contract. The Amended Employment Contract also commenced on 1 March 2016 but lists the Claimant’s position as “Admin Assistant” and provides a six-month probation period. This Amended Employment Contract will be considered the valid contract between the parties, as both signed it and neither objected that it was the latest applicable contract governing the relationship between them.

8. The parties are in agreement that the Claimant’s employment with the Defendant company was in relation to a specific project that he was meant to pursue for the company and that thus, he was not treated the same as other general employees of the company.

9. The Amended Employment Contract states, in relevant part:

“2-5 The Employee shall be subject to six-month probation period and both parties are entitled, during such probation period, to forthwith terminate this Contract without prior notice and without any compensation or end of service gratuity. Upon the completion of this probationary period and unless the Company has used the right to terminate the Contract, the Employee shall be deemed to be employed with the Company for a definite period as from the Employment Date.

. . .

4-1 In consideration of the work of the Employee with the Employer, the Employee shall be paid a monthly total salary of AED 15,000 (Fifteen Thousand AED) to be paid at the end of each calendar month. The salary is calculated as Basic Salary of 10,000 AED (Ten thousand) and Housing allowance of 5000 AEED (Five thousands).

. . .

9.1 This Employment Contract shall be governed by the applicable laws in the DIFC.

9.2 Both of the Company and the Employee shall be subject to the exclusive jurisdiction of the DIFC courts in respect of any disputes arising out of or/and related to the work.”

10. The Claimant allegedly resigned from his position on 27 June 2016 due to failure to receive his salary and employment visa in a timely fashion. The Claimant did not make reference to a notice period and thus seems to have terminated the Amended Employment Contract pursuant to Clause 2-5.

11. On 31 October 2016, the Claimant filed a Claim Form in the DIFC Courts Small Claims Tribunal (SCT). The Defendant initially responded to the Claim Form on 8 November 2016 indicating its intent to defend against all of the claim. The parties attended a Consultation on 14 November 2016 but were unable to reach a settlement. On 5 December 2016, I heard the parties’ arguments at a Hearing.

The Claim

12. The Claim Form indicated that the Claimant was seeking compensation for three items. First, he claimed unpaid salary from 1 April 2016 until 27 June 2016. Second, he claimed “Compensation against breach of contract and not processing my visa application” in the amount of three months’ salary. Third, the Claimant claimed his DIFC Courts’ fees against the Defendant, saying that he has been attempting to collect his final salary since the end of June, thus he was forced to file a claim in the DIFC Courts.

13. The Claimant submitted a salary certificate issued by the Defendant on 21 April 2016 stating that he was a “Business Consultant” who “joined Graeme Consulting Services LLC on 1st March 2016.” The Claimant also submitted some email correspondence in Arabic and some other documentation regarding the visa application process.

14. After the Hearing on 5 December 2016, the Claimant submitted an additional narrative and supporting documents regarding his alleged work for the Defendant company specifically in June 2016. The Claimant contended that the requirements needed to process his visa application had not been clearly communicated to him by the Defendant. The Claimant alleged that the failure to obtain his employment visa for four months was evidence of bad intent on the part of the Defendant.

15. Further, the Claimant contended that his required job responsibilities did not necessitate him being in the office each day. In fact, he alleged that he was supposed to seek out new clients and attend meetings outside of the office in order to meet his job responsibilities. Additionally, the Claimant contended that the attendance machine did not work properly and the attendance sheet submitted by the Defendant does not reflect his full work.

16. Finally, the Claimant submitted emails reflecting his efforts and work for the Defendant company during the month of June.

The Defence

17. The Defendant provided its initial Defence on 8 November 2016, indicating its intention to defend against all the claims made in the Claim Form. In the submission, the Defendant generally alleged that the Claimant was on a unique contract which was meant to be a partnership and thus he was not treated like any other employee. He was only tasked “to ensure signing the contract” with a specific client and no other work was assigned to him.

18. However, the Defendant admits that the Claimant was due a monthly payment of AED 15,000 pursuant to the agreement between the Claimant and the Defendant company and that the Defendant company did endeavour to transfer the Claimant’s visa to their sponsorship.

19. The Defendant contended that the Claimant’s representations as to the specific project he was engaged to complete were “not genuine or at least not realistic” and thus, no further payments were made to the Claimant as the project was called off. The Defendant alleged that they may have been “deceived [by the Claimant] and there was no such project at all.”

20. As regards the Claimant’s employment visa, the Defendant alleged that the application is still pending with the DIFC Government Services Office (GSO) because the Claimant has failed to provide an Education Certificate as required by GSO to transfer and fully process his employment visa. The Defendant acknowledged that it tried, with the consent of the Claimant, to change the Claimant’s job title in order to avoid this requirement but as the Claimant is an Egyptian national, the Education Certificate is required for all job positions.

21. Finally, the Defendant alleged that after the Claimant resigned, the Defendant’s CEO was surprised as to his requests for salary and other compensation. The Defendant’s CEO claimed that he asked for meetings with the Claimant to settle the matter but the Claimant did not respond or attend such meetings. Ultimately, the Defendant asks the SCT to dismiss the entirety of the Claimant’s claims.

22. At the Hearing on 6 December 2016, the Defendant provided a copy of the Claimant’s Initial Employment Contract and some other documentation regarding the visa application. The Defendant also submitted a submission after the Hearing, in which it argued that the Claimant did not work for the Defendant company in June 2016 and should not be paid for such time. Further, the Defendant submitted a copy of the Amended Employment Contract and a copy of its office attendance log for the month of June as regards the Claimant’s attendance.

The Hearing

23. At the Hearing, the Claimant contended that he needed to receive his salary for March to June 2016 but had only received one month’s salary of AED 15,000. He also requested compensation for the Defendant’s failure to complete his visa process in the amount of three months’ salary as well as reimbursement of the DIFC Courts’ Fee. The Claimant clarified that he had to leave the country quickly due to his previous visa being cancelled but made no specific claim as to his evaluation of damages connected to his visa claim. In sum, the Claimant mainly reiterated the points in his Claim Form.

24. The Defendant’s representative contended that the Defendant company submitted the Claimant’s visa application promptly and the application was held up due to a missing Education Certificate, which the Claimant never provided.

25. The Claimant responded that the Defendant had advised him that there was a problem only two or three months after starting work. Then, the parties had tried to change the Claimant’s job title to apply again as to avoid the requirement for the Education Certificate. The Claimant alleged that this was only meant to be a visa transfer from another free zone to the DIFC and thus, it should have taken only 1 week to complete. The Claimant said the original Education Certificate, as required, was in Egypt and therefore it would take some time to obtain it.

26. The Defendant admitted that the Claimant had been paid for one month only. The Defendant contended that it had asked for multiple meetings with the Claimant to come to a final settlement but the Claimant did not attend. The Defendant felt that the Claimant did not deserve the full salary for April 2016 until June 2016. The Defendant pointed out that the Amended Employment Contract included a probation period for immediate termination.

27. In response to the question of whether the Claimant did, in fact, work for the Defendant company from April 2016 until June 2016, the Defendant stated that the Claimant’s work arrangement did not provide for active reporting and supervision. The Defendant acknowledged that the Claimant did work in April and May 2016 but alleged that he did not do any work for the Defendant company in June 2016. The Defendant thus conceded that the Claimant was owed two months’ salary and was willing to pay for work from March until May 2016 (for which the Claimant had already been paid one month), but the Defendant contested any payment owed for the month of June 2016.

28. The Claimant argued that he was making efforts every day in furtherance of the intended project. He asked how he could be expected to work without a salary or visa and reiterated that he had worked until the end of June. The Claimant asserted that he had evidence that he was working in June, including communications via email and the fingerprint records of access to the office.

29. The Defendant stated that there was nothing to be done regarding the visa as it was waiting for the Claimant to provide the necessary Education Certificate and thus, the matter was out of its hands. The Claimant did not elaborate on his claim for an additional three months of salary as damages for failure to obtain his visa.

30. It is noted that there was a brief discussion regarding settlement at the end of the Hearing, with the Defendant making an offer of two months of salary. The parties did not reach an agreement and nothing in that discussion will serve to prejudice my judgment.

31. The Defendant did not object to the Claimant’s late submission, made one day before the Hearing, and submitted additional documentation at the Hearing. Due to the late nature of these submissions, I decided to give the parties additional time to make further submissions after the Hearing, especially as regards the Claimant’s contested work in the month of June 2016.

Discussion

32. 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 does not exceed AED 500,000. Further, Clause 9.2 of the Amended Employment Contract states that any disputes shall be subject to the exclusive jurisdiction of the DIFC Courts.

33. 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 Amended Employment Contract.

34. The Claimant has made three claims related to this dispute:

a. He claims for three months of pending and unpaid salary in the amount of AED 45,000.

b. He claims for three months of additional salary as damages for the Defendant’s failure to provide him with an employment visa, in the amount of AED 45,000.

c. He also claims that the Defendant should be required to pay his DIFC Courts’ Fees in the amount of AED 1,823.02, of which he has already paid half to the DIFC Courts and is required to pay the remaining half upon completion of the case.

35. I will address each of these main issues, responding to the Defendant’s arguments in turn.

A. Pending and Unpaid Salary

36. While the Defendant initially contended that the Claimant was not a traditional employee of the Defendant company, the Defendant’s representative acknowledged at the Hearing that the Claimant is entitled to two months’ salary for April 2016 and May 2016. The Defendant’s representative reiterated the argument that the Claimant did not work for the Defendant company during June 2016 and therefore should not be paid for that time. Thus, it remains contested as to whether the Claimant is due his salary for the month of June 2016.

37. The Claimant maintains that he was working for the Defendant company up until his resignation on 27 June 2016 and has submitted email evidence of his correspondence and work done in the month of June. The Defendant has submitted a log of the Claimant’s attendance at the office in the month of June, showing his attendance for varying amounts of time on 8 days in June 2015. Further, both parties acknowledge that the Claimant was doing work unlike a typical employee and thus, he was required to hold off-site meetings and might not have been attending the office each day.

38. I find that the Claimant has met his burden of proof to show that he was working during the month of June by submitting a number of emails to this effect. The latest submitted email was sent on 14 June 2016. Further, the Defendant’s own submission regarding the Claimant’s attendance at work shows him coming to work on at least 8 days in June, with the last day of attendance being 15 June 2016. These submissions, combined with both parties’ acknowledgment that the Claimant may do off-site work, show that the Claimant was working for the Defendant company well into the month of June.

39. However, it is for the Claimant to prove that he was working beyond 15 June 2016. He has not met this burden of proof. While there is one message reflecting a potential meeting that the Claimant may have set up on 28 June 2016, his own submission is that he stopped working and resigned on 27 June 2016. There is nothing in the court file to suggest that the Claimant was working beyond 15 June 2016.

40. Therefore, I find that the Claimant is entitled to 2.5 months of payment for time worked from 1 April 2016 until 15 June 2016. This amounts to AED 37,500 owed by the Defendant to the Claimant.

B. Damages for Delayed Visa

41. The Claimant alleged that he should receive an additional three months’ salary for “Compensation against breach of contract and not processing my visa application.” The Claimant mentioned this claim at the Hearing but did not provide details of what these damages would cover. In his 10 December 2016 submission, the Claimant elaborated that he should receive “3 month salary against the damage that happened to me because of defendant actions and ignorance. As a legal consequences I had to cancel my visa and my dependent’s visas [sic].” The Claimant has provided no submissions to quantify his alleged damages.

42. It is the Claimant’s responsibility to prove his claim. As he is essentially claiming breach of contract for failure to obtain his employment visa in a timely fashion, he must show that the Defendant had a duty to obtain the visa, that the Defendant breached that duty and that such breach resulted in specific damages incurred by the Claimant.

43. While the Defendant essentially acknowledged its requirement and duty to obtain employment visas for its employees, it asserted that the inability to obtain the Claimant’s employment visa was due to the Claimant’s own failure to submit a valid Education Certificate. While the Claimant alleged in his submissions that a four-month delay reflects bad intent and that he did not receive notice of the requirement for the Education Certificate, he seemed quite aware of the requirement at the Hearing and contended that he could not obtain the Certificate as it was located in Egypt. Therefore, there is no proof of breach of the Defendant’s duty; in fact it seems that the Defendant behaved reasonably regarding its attempts to obtain the Claimant’s employment visa.

44. Furthermore, the Claimant has made no submission to quantify his damages and show the alleged loss caused by the Defendant’s failure to obtain his employment visa. Therefore, the Claimant has failed to meet his burden of proof to clearly articulate and prove his claims regarding damages for breach of contract due to the Defendant’s failure to obtain his employment visa. Thus, I find that the Claimant is not entitled to any damages for the Defendant’s failure to obtain his employment visa.

C. Court Fee

45. The Claimant contends that he had no choice but to come to the DIFC Courts to make his claim against the Defendant as it failed to pay him for a number of months. The Defendant countered that it made several attempts to have a meeting with the Claimant to provide for final settlement.

46. As the Defendant contended throughout that it did not owe the Claimant any salary for the month of June 2016 and as I have found above that it did in fact owe the Claimant AED 7,500 as salary for June 2016, I find it appropriate to reimburse the Claimant for at least part of his DIFC Courts’ Fees.

47. The Claimant claimed well beyond the AED 37,500 awarded to him and thus, his DIFC Courts’ Fee, which is calculated as 2% of the amount he claimed, was AED 1,823.02 (2% of the AED 91,151.02 initially claimed by the Claimant). As the Claimant was only awarded AED 37,500 instead of his full amount claimed, I find it appropriate to award him half of his DIFC Courts’ fee.

48. As the Claimant has only paid half of the DIFC Courts’ Fee at this time, due to a suspension granted to him by the SCT Registrar, the Defendant shall pay the remaining half of the DIFC Courts Fee, amounting to AED 911.51, into the DIFC Courts. The Claimant shall not be reimbursed for the portion of the Court Fee that he has already paid.

Findings

49. The Defendant shall pay the Claimant AED 37,500 as salary for the months of April, May and half of June 2016.

50. The Claimant’s claim as to damages related to the delay and inability to process his employment visa is dismissed.

51. The Defendant shall submit to the DIFC Courts the remaining portion of the DIFC Courts’ Fee in the amount of AED 911.51.

 

 

Issued by:

Natasha Bakirci

SCT Judge

Date of issue: 15 December 2016

At: 4 pm