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Izaac v Irmina [2018] DIFC SCT 062

Izaac v Irmina [2018] DIFC SCT 062

April 3, 2018

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Claim No. SCT 062/2018 

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

IZAAC

 Claimant

 

and

 

IRMINA

Defendant

 

Hearing: 29 March 2018

Judgment: 3 April 2018


JUDGMENT OF SCT JUDGE NASSIR AL NASSER


UPON this claim having been called for a hearing, the Claimant and the Defendant’s representative attended the hearing;

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 amount of AED 35,156.25 for her one-month notice and end of service gratuity.

2. All other claims are dismissed.

3. The Defendant shall pay the Claimant the Court Fees in the sum of AED 735.48.

 

Issued by:

Nassir Al Nasser

SCT Judge

Date of issue: 3 April 2018

At: 12pm 

 

THE REASONS

The Parties

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

2. The Defendant is Irmina (herein “the Defendant”), a company registered in the DIFC located at DIFC, Dubai.

 Background and the Preceding History

3. The underlying dispute arises over the employment of the Claimant by the Defendant in the position of “Account Executive” by an employment contract dated 17 November 2015 (the “Employment Contract”).

4. Pursuant to the Employment Contract, the Claimant’s total salary was AED 18,750 per month which consists of 60% Basic Salary, 35% Housing and Rent and 5% Travel & Other. The Claimant was also entitled to 25 working days per annum.

5. The Claimant alleges that she was terminated on 4 January 2018, she also alleges that she was not given one month notice period and her end of service entitlements as the Defendant terminated her with cause of misconduct.

6. On 5 February 2018, the Claimant filed a claim in the DIFC Courts’ Small Claims Tribunal (the “SCT”) seeking the sum of AED 36,774 which consists of her one month Notice and end of service benefits. In addition, the Claimant is seeking a fair settlement from the Defendant for all damages they caused by accusing her of misconduct and discussing this with the market with the intention of damaging her reputation.

7. On 12 February 2018, the Defendant acknowledged the claim with the intention to defend all of the Claimant’s claim.

8. The parties met for a Consultation with SCT Judge Ayesha Bin Kalban on 1 March 2018 but were unable to reach a settlement.

9. The Claimant and the Defendant’s representative attended the hearing listed before me on 29 March 2018.

The Claim

10. The Claimant’s case is that she was employed by the Defendant from 17 November 2015, she was terminated on 4 January 2018 without providing her notice period and end of service gratuity. However, she alleges that the Defendant terminated her for misconduct to avoid paying her end of service entitlements.

11. The Claimant alleges that she was called without any prior notice to the CEO’s office who surprised her with accusations of misconduct with the presence of their HR. The Claimant adds that she was accused of arranging an interview on 8 March 2017 when she called in sick.

12. The Claimant also alleges that the Defendant pulled out one of her personal emails which she sent from her phone related to this interview either by hacking her personal email or through a snapshot from her phone through one of their installed internal cameras.

13. Furthermore, the Claimant denied all these accusations and alleges that this interview did not happen. In addition, the Claimant alleges that she was accused that she was in contact with Isidro from Ignace Recruitment (DIFC) who approached her for a position and asked for her CV but she alleges that she explained to the Defendant that Isidro was referred by one of her ex-colleagues and that he approached her.

14. The Claimant alleges that at the meeting with the Defendant held on 4 January 2018, she was asked to sign a resignation letter with the Defendant paying her the one month notice but agreeing to waive her End of Service, she refused to sign which led the Defendant to terminate her.

15. The Claimant also adds that the Defendant did not make any proper investigation into this matter. She also alleges that the Defendant took this approach to terminate the Claimant to avoid costs.

16. The Claimant also alleges that the Defendant started to tell the insurance market that she had been terminated due to breach of her contract.

The Defence

17. The Defendant alleges that the Claimant’s behaviour over a period of time indicated that she had not been sufficiently focused on her work tasks and had been delinquent in her responsibilities.

18. The Defendant also adds that an internal analysis of their company bandwidth consumption of online data and the websites accessed through the company’s network revealed that the Claimant’s computer was one of the highest consumer bandwidth. In more details, the Defendant alleges that it was clear due to the data flows that the Claimant habitually spent significant amount of company time on online personal shopping and excessive “surfing of the internet” for non-work related matters.

19. The Defendant also alleges that on 2 November 2017, the company’s analysis found that at 11:13 am, the Claimant had been uploading her CV to a number of public websites, including www.gulfjobnetwork.com this was done from her work computer using company assets and the company network on company pay in breach of her duties towards her employer.

20. Furthermore, the Defendant alleges that it was also discovered that on 8 March 2017, the Claimant had falsely claimed to be sick and unable to adhere to her work duties at the office, whereas it transpired that she had pre-arranged to attend an interview at another company in the UAE on that same day and as such acted in an unacceptably dishonest manner towards the Defendant. The Defendant provided evidence showing the Claimant’s absence from the office on the said date and a corresponding email arrangement to attend an interview on that same day were presented to her by the Defendant’s HR.

21. The Defendant also alleges that all employees are aware that the company computer systems are monitored and that there is CCTV in the office and understand and appreciate this is for security purposes. In addition, the Claimant had sent emails from her work computer to a number of prospective employers and employment agencies and head-hunters while she was supposed to be working during the company’s working hours.

22. The Defendant adds that the Claimant’s behaviour clearly constitutes a pre-determined fundamental breach of her terms of employment with the Defendant, whereby she is under an obligation to attend work during the prescribed hours of each working day.

23. The Defendant also adds that the Claimant’s behaviour is furthermore in fundamental breach of her statutory duty of good faith and loyalty as a fiduciary to the Defendant and to act in what she considers to be in the best interest of the Defendant without regard to her own interest under the DIFC Law no. 5 of 2005 (‘the DIFC Law of Obligations’), a direct result of which any relationship of trust and confidence between the Defendant and the Claimant became irreparably tarnished.

24. The Defendant alleges that they gave the Claimant adequate opportunity at a meeting held with the Claimant on 4 January 2018 to explain herself and whether there was a justification for the evidence found suggesting her misconduct. The Claimant however was unable to offer any information to show the contrary, instead simply dismissing her actions and saying that they were untrue, but the Defendant adds that there is evidence that support its claims.

25. The Defendant alleges that the Claimant’s behaviour constituted misconduct under Article 59A of the DIFC Law No. 4 of 2005 as amended by DIFC Law No. 3 of 2012 (‘the DIFC Employment Law’) which warranted her dismissal for cause without notice or warning on 4 January 2018 and that any reasonable employer would have come to the same conclusion.

Discussion

26. 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.

27. On the one hand, the Claimant alleges that there was no misconduct. On the other hand, the Defendant alleges that they have terminated the Claimant due to misconduct. To determine this matter, I will have to establish whether there was misconduct or not.

28. The Defendant argues that the Claimant was terminated due to misconduct which occurred on certain occasions. The Defendant also argues that by analysing the company bandwidth, it appeared that the Claimant had the highest consumption of online data. The Defendant alleges that the Claimant was online shopping during working hours and surfing the internet for non-work related matters which is one reason of termination with cause. The Defendant did not produce any evidence of the company bandwidth consumption or any evidence of online shopping. In fact, the only evidence provided was screen shots of the Claimant’s usage alleged on 2 November 2017.

29. The Claimant argued that she had used her personal email and not the company email to communicate with other companies to find different employment opportunities. She also alleges that the Defendant accessed her private personal email and gathered such information about her seeking a job and communications with other companies and arranging a meeting on a certain date for an interview.

30. The Defendant argues that on 8 March 2017, the Claimant called in sick. But the Defendant found out that on 2 March 2017, there was a chain of emails between the Claimant and a third party arranging an interview to take place on 8 March 2017 (the day the Claimant called in sick). However, the Claimant also provided a chain of emails on 6 March 2017, that the interview was cancelled.

31. I will disregard all the arguments of online shopping and surfing the internet for non-work matters because there was no evidence provided of the internet consumption or any proof that the Claimant was online shopping during working hours. The only evidence I might consider is the chain of emails provided by the Claimant and the screen shots provided by the Defendant.

32. The second question that should be answered is whether the Defendant took fair steps to investigate the matter and whether the Claimant had been given any warnings during that period. As it appears the incident occurred on March 2017, the Claimant was not terminated until January 2018 (10 months after the incident). It also appears that no investigation was carried out and the Claimant was not given any warning during her course of employment with the Defendant.

33. There was one meeting only which occurred on 4 January 2018, in which the Claimant argues that the Defendant asked her to resign and receive her one month notice only, when she refused to accept, she was terminated.

34. I do not believe such action by the Claimant should be considered to be gross misconduct, I do not see that there is a criminal offence, I do not see that there was a fair investigation to establish the alleged wrongful doing of the Claimant. I also do not see any effect on the Defendant’s business.

35. Therefore, I am not satisfied with the Defendant’s action to terminate the Claimant with cause (misconduct). I am not satisfied that this matter should lead to gross misconduct. The Defendant shall deduct one day from the Defendant’s annual leave for the day she called in sick.

36. The Claimant also alleges that the Defendant is damaging the Claimant’s reputation, but there is no evidence to establish that this is true. Therefore, I dismiss the Claimant’s claim regarding the damage to her reputation.

37. I find that the Defendant is liable to pay the Claimant her dues in the amount of AED 35,156.25 for her one-month notice and end of service gratuity. All other claims are hereby dismissed.

Conclusion

38. In light of the aforementioned, I find that the Defendant is liable to pay the Claimant her dues in the amount of AED 35,156.25 for her one-month notice and end of service gratuity. All other claims are hereby dismissed.

39. The Defendant shall pay the Claimant the Court Fees in the sum of AED 735.48.

 

Issued by:

Nassir Al Nasser

SCT Judge

Date of Issue: 3 April 2018

At: 12pm

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