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Hale v Haydee Salon [2017] DIFC SCT 238

Hale v Haydee Salon [2017] DIFC SCT 238

November 23, 2017

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Claim No. SCT 238/2017

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 MAHA AL MEHAIRI

BETWEEN

 

HALE

 

   Claimant

and

 

HAYDEE SALON

Defendant

 

Hearing:  4 October 2017

Further Submissions:  24 October 2017

Judgment:  31 October 2017


JUDGMENT OF SCT JUDGE MAHA AL MEHAIRI


UPON this claim having been called on 18 July 2017 for a Consultation before SCT Officer Lema Hatim;

AND UPON the parties not having reached settlement;

AND UPON a Hearing having been held before me on 4 October 2017, with the Claimant and the Defendant’s representatives 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 AED 2,600 as unpaid public holidays.
  2. The Claimant’s remaining claims are dismissed.
  3. The parties shall bear their own costs.

 

Issued by:

Natasha Bakirci

Assistant Registrar

Date of issue: 31 October 2017

At: 10am

 

THE REASONS

Parties

  1. The Claimant, Hale, is a Tunisian national who was employed as a hairdresser by the Defendant company.

 

  1. The Defendant, Haydee Salon, is a DIFC registered company operating a beauty and salon facility located in the DIFC.

Background

  1. The Claimant and Defendant entered into an Employment Contract in 2013. The Claimant signed an updated Employment Contract in 23 June 2016, in the contract the Claimant was working as a hairdresser for the Defendant for a salary of AED 6,000 per month. The Employment Contract states, in relevant part, that the Claimant shall be employed as a hairdresser for a total compensation of AED 6,000 per month to include a basic salary of AED 4,000 per month, and housing and transportation allowance of AED 2,000 per month. The Working Hours Clause of the Employment Contract details that “the Salon is open 7 days per week, your weekly day off will be appointed taking the business needs in to account. You will be required to work 11 hours a day.”
  2. Under Company Rules and Regulation of the Employment Contract, it reads as follows “Your employment with Haydee Group will require one month’s notice for you to terminate your employment”.
  3. On 12 July 2017, the Claimant served the Defendant with a Resignation Letter, notifying the Defendant that the last working day of the Claimant’s 1 month notice period is 12 August 2017. On 16 August 2017, the Defendant cancelled the Claimant’s visa with pending issues.
  4. On 11 September 2017, the Claimant filed a Claim Form in the DIFC Courts Small Claims Tribunal (SCT) seeking unpaid extra hours from 2013 up to 23 June 2016, untaken public holidays, and penalty under Article 18 of the DIFC Employment Law. The Claimant amended the Claim Form on 28 September 2017 to include untaken holy holidays.
  5. The Defendant responded to the Claim Form on 19 September 2017 indicating its intent to defend against the claim. The parties attended a Consultation on 27 September 2017 but were unable to reach a settlement. On 4 October 2017, I heard the parties’ arguments at the Hearing.

The Claimant’s Arguments at the Hearing

  1. The Claimant sought AED 64,000 as payment for unpaid overtime from 2013 up to 2016, and he claimed for the unpaid public holidays, he also requested for penalties under Article 18 of the DIFC Employment Law to be imposed upon the Defendant.
  2. In the Hearing, the Claimant did not submit anything to support his claim, the Claimant failed to submit his contract from 2013, he provided a list of national public holidays in the UAE for the years of 2013 to 2015 from an unknown source.
  3. Furthermore, the Claimant contended that he is entitled to a payment of AED 64,000 as extra hours, because in the DIFC Employment Law, employees should work 9 hours with a 1 hour break and the employees in the Defendant company were working 11 hours against what was in their employment contract of 2013.

The Defendant’s Arguments at the Hearing

  1. The Defendant conceded that the Claimant began working at the Defendant salon in 2013, but the Defendant does not have a copy of the Claimant’s previous employment contract to revise the content of that contract.
  2. The Defendant contested that the Claimant did not work extra hours from 2013 as the nature of the job required that they work the 11 hours shift. The Defendant also added that the Claimant had no problem working those hours from 2013 and never complained about them until he served his resignation letter in 2017.
  3. In regard to the public holidays, the Defendant confirmed that all employees working with the Defendant only received New Year’s Day, the two Islamic Eid holidays, Easter and Arafat off.
  4. The Defendant denied the Claim under Article 18 of the DIFC Employment Law, as they stated that there were no pending payments to be paid to the Claimant under his Employment Contract and under the Law.

 

 

Discussion

  1. 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.
  2. 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.
  3. The Claimant seeks payment for the extra hours worked from 2013 to 2016, the unpaid public holidays and penalty under Article 18 of the Employment Law. The Defendant denied all the Claimants Claims and states that there are no pending amounts to be paid to the Claimant under his Employment Contract.

Unpaid Extra Hours

  1. The DIFC Employment law states the following:

“Part 4 WORKING TIME AND LEAVE

21. Maximum weekly working time

An employee’s working time shall not exceed an average of forty-eight (48) hours for each seven (7) day period unless the employer has first obtained the employee’s consent in writing.

  1. As such, even if the Defendant does not have the Claimant’s written consent in writing in regard to the excess hours worked, there is no objection given by the Claimant in the period that he served under the old contract being from 2013 to 2016. In addition, the Claimant does not have any evidence that he served those extra hours either by providing the old Employment Contract or by presenting his hours in that period.
  2. The Claimant has also failed in providing any written evidence from the Defendant that he will be paid extra for the extra hours worked in that period.
  3. The Court finds that the burden of proof lies on the Claimant to prove his claims before the Court and since there was no sufficient evidence provided, the Court is satisfied that the Claimant’s claim for extra hours is dismissed. 

Unpaid Official Holidays

  1. The DIFC Employment Law states the following regarding unpaid official holidays:

“32. Entitlement to national holidays

(1) Every employee is entitled to the national holidays that are announced in the UAE for the public sector (if the employer is a public sector entity) or the private sector (if the employer is a private sector entity), falling on a
working day.

(2) An employee is entitled to be paid a daily wage for national holidays under Article 32 (1).

(3) Leave to which an employee is entitled under Article 32(1) may be replaced by:

(a) a day in lieu;

(b) a payment in lieu; or

(c) a pro-rated amount relating to the period of time worked,

where each of the employer and the employee so agree in writing.

  1. The DIFC Employment Law did not mention the days that are entitled to the private sector as it was silent on that matter and since the DIFC is part of Dubai and the UAE, and the DIFC law mentions that “Every employee is entitled to the national holidays that are announced in the United Arab Emirates” then the list that is mentioned as public holidays in the UAE Labour Law in the private sector is applied in the DIFC.
  2. Furthermore Article (74) of the UAE Labour Law provides a list of the official holidays for the private sector in the UAE being:

“Each worker shall be entitled to an official holiday with full pay on the following occasions:

(a)        New Year’s Day (Hegira): one day;

(b)        New Year’s Day (Christian): one day;

(c)        Feast of Lesser Bairam: two days;

(d)        Feast of Greater Bairam and Eve of Greater Bairam: three days;

(e)        Birthday of the Prophet: one day;

(f)         Nocturnal Journey and Ascension of the Prophet: one day;

(g)        National Day: one day

(h)        Martyr’s Day: one day”

  1. As such and since the Defendant has confirmed that they don’t have a record of the days that the employee has worked for the previous years, and there is no company policy that states the public holidays that are to be taken for the private sector or the Defendant’s company. The Court requested that the Claimant provide a list of holidays from a trusted source of the public holidays in the UAE and on which day it falls in, so to avoid awarding days to the Claimant where a public holiday falls on the weekend. The Claimant failed to provide the exact days of the official holidays from a trusted source and the days they fell on.
  2. The Court requested from the Registry staff to verify the days provided from the Claimant, and took out the days that were confirmed by the parties as taken, being the two Islamic Eids, Arafat Day, and New Year’s day and produced the table below.
2013 2014 2015
Prophet Mohammed’s Birthday/ 1 day Prophet Mohammed’s Birthday/ 1 day Prophet Mohammed’s Birthday / 1 day
Israa & Miaraj Night / 1 day Israa & Miaraj Night / 1 day Israa & Miaraj Night / 1 day
Hijri New Year’s Day/ 1 day Hijri New Year’s Day/ 1 day Hijri New Year’s Day/ 1 day
UAE National Day / 1 day UAE National Day / 1 day UAE National Day / 1 day
    Martyrs’ Day / 1 Day
  1. Accordingly, the Claimant is entitled to 13 days as unpaid public holidays. As the Claimant’s daily wage is AED 200, the Defendant shall pay the Claimant AED 2600 (AED 200 x 13).

Penalties under Article 18 of the DIFC Employment Law

28. As per the Outstanding amounts the Claimant confirmed that he sought the penalty under Article 18 of the DIFC Employment Law, it provides:

“(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.”

29. The Court finds that the Claimant did not provide any satisfactory evidence to prove his case before the Court and as a result that a penalty shall not be paid by the Defendant, as such the Court dismisses this claim.

Findings

  1. The Defendant shall pay the Claimant AED 2,600 as unpaid public holidays.
  2. The Claimant’s remaining claims are dismissed.
  3. The parties shall bear their own costs.

 

Issued by:

Natasha Bakirci

Assistant Registrar

Date of issue: 31 October 2017

At: 10am

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