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Imaad v Inaya and Imran Beauty Salon LLC [2017] DIFC SCT 365

Imaad v Inaya and Imran Beauty Salon LLC [2017] DIFC SCT 365

March 8, 2018

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Claim No. SCT 365/2017

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 OF DIFC COURTS

BEFORE SCT JUDGE NASSIR AL NASSER

 

BETWEEN

 

IMAAD

 Claimant 

and

 

INAYA AND IMRAN BEAUTY SALON LLC

Defendant

Hearing: 6 March 2018

Judgment: 8 March 2018


 JUDGMENT OF SCT JUDGE NASSIR AL NASSER


UPON this claim having been called for a hearing, the Claimant attended the hearing and the Defendant was absent although the Claim form was served;

AND UPON reading the submissions and evidence filed and recorded on the Court file

IT IS HEREBY ORDERED THAT:

1.The Defendant shall pay the Claimant the sum of AED 10,470.00 plus interest at the rate of 9% per annum.

2. All other claims are dismissed.

3. The Defendant shall pay the Claimant the Court Fee in the sum of AED 367.50.

 

Issued by:

Nassir Al Nasser

SCT Judge

Date of issue: 8 March 2018

At: 3pm

 

 

THE REASONS

The Parties

1.The Claimant is Imaad (herein “the Claimant”), an individual filing a claim against the Defendant regarding her employment at the Defendant company.

2. The Defendant is Inaya and Imran Beauty Salon LLC (herein “the Defendant”), a company registered in the DIFC located at Emirates Financial Tower, DIFC, Dubai.

 Background and the Preceding History

1. The underlying dispute arises over the employment of the Claimant by the Defendant in the position of “Manicurist” by an employment contract dated 7 December 2016 (the “Employment Contract”).

2. Pursuant to the Employment Contract, the Claimant’s total salary was AED 3,500 per month which consists of basic salary in the sum of AED 2,000, other allowances in the sum of AED 750 and accommodation in the sum of AED 750. The Claimant was also entitled to 30 days annual leave if her service at the company exceeded one year.

3. The Claimant alleges that she was terminated verbally in December 2017, she also alleges that she was not given two months’ salary for November and December 2017, overtime, end of service gratuity, reimbursement of deductions made in regard to her visa and medical insurance along with interest when the payment was due.

4. On 28 December 2017, the Claimant filed a claim in the DIFC Courts’ Small Claims Tribunal (the “SCT”) seeking the total sum of USD 5,000 equivalent to AED 18,375 which consists of her November and December 2017 salary, overtime, end of service gratuity, reimbursement of deductions made in regard to her visa and medical insurance along with interest when the payment was due.

5. The parties met for a Consultation with SCT Judge Natasha Bakirci on 29 January 2018 but were unable to reach a settlement.

6. The Claimant attended the hearing listed before me on 6 March 2018, the Defendant was absent although it was made aware of the date of the hearing.

The Claim

7. The Claimant’s case is that she was employed by the Defendant from 7 December 2016 pursuant to her Employment Contract, however, she alleges that she was working with the Defendant since November 2016. The Claimant also alleges that she was verbally terminated in December 2017 without being provided with her notice period or official termination documentation.

8. The Claimant now seeks the payment of her November and December 2017 salary in the sum of AED 7,000, reimbursement of the deduction made by the Defendant in regards to her visa in the sum of AED 1670, reimbursement of the deduction made by the Defendant in regard to her medical insurance in the sum of AED 400, end of service gratuity in the sum of AED 1,400, overtime in the sum of AED 7,905 and interest from the time the payment was due.

The Defence

9. The Defendant did not attend the hearing and did not provide sufficient evidence to defend the claim.

Discussion

10. This dispute is governed by 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.

11. Rule 53.61 of the Rules of the DIFC Courts states the following: “if a Defendant does not attend the hearing and the Claimant does attend the hearing, the SCT may decide the claim on the basis of the evidence of the Claimant alone.”

12. Therefore, I will decide this claim on the basis of the Claimant’s evidence.

13. The Claimant at the hearing claimed the payment of her November and December 2017 Salary in the sum of AED 7,000, reimbursement of the deduction made by the Defendant in regards to her visa in the sum of AED 1670, reimbursement of the deduction made by the Defendant in regard to her medical insurance in the sum of AED 400, end of service gratuity in the sum of AED 1,400, overtime in the sum of AED 7,905 and interest from the time the payment was due.

14. Article 59(2)(b) of the DIFC Employment Law states the following:

“(2) Subject to Article 59(4) and (5), the notice required to be given by an employer or employee to terminate a person’s employment, where the person has been continuously employed for one (1) month or more, shall not be less than:

(b) (30) days if the period of continuous employment is three (3) months or more but less than five (5) years;”

15. The Claimant claimed her November 2017 and December 2017 salary alleging that she did not receive her salary. The Defendant failed to attend the hearing and failed to provide any evidence that the Claimant was paid the two months’ salary she is claiming. Article 16 of the DIFC Employment Law it states the following:

“For each employee, the employer shall keep records of the following information:

(c) the employee’s wages (gross and net, where applicable), and the applicable pay period.

(e) the benefits paid to the employee by the employer…”

16. Therefore, pursuant to Article 16(c) and (e) of the DIFC Employment Law, the Claimant is entitled to her two months’ salary for November and December 2017 in the sum of AED 7,000.

17. In addition, the Claimant claimed the reimbursement of the visa expenses the Defendant deducted from her during the beginning of her employment in the sum of AED 1,670.

18. However, the Defendant in their submission provided that the Claimant and the Defendant entered into an agreement on 19 December 2016, that the Defendant will carry the fine for overstaying of the Claimant from 14 December 2016 up to the approval of her Employment visa and also for the fee of the changing of her tourist visa to employment visa status on the basis that the Claimant will later deduct the said charges from the Claimant’s first salary.

19. Article 19(b) of the DIFC Employment Law states that:

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

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

20. Article 20(1)(a) of the DIFC Employment Law states the following:

“A person shall not request, charge or receive, directly or indirectly, from a person seeking employment a payment for:

(a) Employing or obtaining employment for the person seeking employment;”

21. Although Article 19(b) of the DIFC Employment Law authorises the deduction if both the employer and employee have agreed in writing, such deductions are not authorised under Article 20(1)(a) of the DIFC Employment Law which clearly states that a person shall not charge directly or indirectly from a person seeking employment a payment for employing them.

22. Furthermore, the Defendant did not provide any evidence of the amount paid to Government Services in regard to the Claimant’s overstay or the charge of transferring the Claimant’s visa.

23. Even if such evidence of payment was provided, the Defendant pursuant to Article 20(1)(a) shall not charge or deduct from the Claimant the expenses of employing her.

24. The Defendant also deducted the sum of AED 400 for the Claimant’s medical insurance. The Defendant argued that such deduction was because the Claimant requested for an upgraded medical insurance. However, the Defendant failed to provide any evidence of the Claimant’s request for an upgrade.

25. Article 53 of the DIFC Employment Law states that:

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

26. Therefore, I am of the view that the Claimant is entitled to the reimbursement of the sum of AED 1,670 as visa expense and the sum of AED 400 regarding medical insurance.

27. The Claimant also claimed her end of service benefits in the sum of AED 1,400. The Claimant was employed by the Defendant for a period of one year from December 2016 up to December 2017, therefore, she is entitled to end of service gratuity of 21 days of her basic wage pursuant to Article 62(1) and 62(2)(a) of the DIFC Employment Law which state the following:

“62. End of Service gratuity

(1) Subject to Article 62(5), and (6), an employee who completes continuous employment of one year or more is entitled to a gratuity payment at the termination of the employee’s employment.

(2) The gratuity payment shall be calculated as follows:

(a) Twenty one (21) days’ basic wage for each year of the first five (5) years of service.”

28. Therefore, the Claimant is entitled to end of service gratuity calculated as follows:

The Claimant’s basic wage was AED 2,000/30= AED 66.66 per day * 21= AED 1,400.

29. In addition to the above, the Claimant claimed overtime in the sum of AED 7,905. In support of her claim for overtime the Claimant provided a track sheet of the days she worked at the Defendant’s company. However, the track sheet was prepared by her as she alleges when she first started working, but it was never signed or seen by anyone except the Claimant. Furthermore, the Claimant failed to provide any agreement between the parties in regard to overtime.

30. The evidence provided by the Claimant is insufficient to establish whether the Claimant is entitled to overtime, the Claimant’s calculations were without any basis. Therefore, I am not satisfied to award the Claimant overtime.

31. The Claimant claimed for interest from the date the payment was due, therefore, the date the payment is due is from the date this Judgment was issued. Since the Employment Contract did not mention the interest rate, I will follow the Chief Justice of the DIFC Courts Practice Direction 4 of 2017 which states the following:

“Any judgment of the DIFC Courts issued after the date of this Practice Direction shall carry simple interest, from the date the judgment is entered, at the rate of 9% or such other rate as the judge may prescribe.”

 32. Therefore, the interest shall be calculated from the date of the Judgment until payment at an interest rate of 9% per annum.

Conclusion

33. In light of the aforementioned, I find that the Defendant is liable to pay the Claimant her dues in the amount of AED 10,470.00 for the remaining salary for November and December 2017, reimbursement of visa expenses and medical insurance, end of service gratuity and interest at the rate of 9% per annum from the date the Judgment is entered. All other claims are hereby dismissed.

34. The Defendant shall pay the Claimant the Court Fee in the sum of AED 367.50.

Issued by:

Nassir Al Nasser

SCT Judge

Date of Issue: 8 March 2018

At: 3pm

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