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Idai v The Idina Restaurant and Bar LLC [2018] DIFC SCT 072

Idai v The Idina Restaurant and Bar LLC [2018] DIFC SCT 072

April 11, 2018

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Claim No. SCT 072/2018

 

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 NATASHA BAKIRCI

 

BETWEEN

 

IDAI

Claimant

 and

 

THE IDINA RESTAURANT AND BAR LLC

Defendant

 

Hearing: 27 March 2018

Judgment: 11 April 2018


JUDGMENT OF SCT JUDGE NATASHA BAKIRCI


UPON the Claim Form being filed on 14 February 2018;

AND UPON a Consultation having been held before SCT Judge Ayesha Bin Kalban on 27 February 2018, and the parties not reaching settlement;

AND UPON a Hearing being held before me, SCT Judge Natasha Bakirci on 27 March 2018, with the Claimant and the Defendant’s representative attending;

AND UPON reviewing the documents and evidence submitted in the Court file;

IT IS HEREBY ORDERED THAT:

1.The Defendant shall pay the Claimant AED 3,900 for delay and late payment of salary.

2. The Defendant shall pay the Claimant’s court fee in the sum of AED 367.50.

 

Issued by:

Natasha Bakirci

SCT Judge

Date of issue: 11 April 2018

At: 12pm 

 

THE REASONS

The Parties

1.The Claimant is a former employee of the Defendant restaurant.

2. The Defendant is a restaurant located in the DIFC.

The Claim

3. The Claimant claimed delay and late payment of salary from the Defendant, that she had not been provided with a copy of her employment contract, that she had been disrespected at the workplace and lastly that she had worked in unacceptable conditions. The amount claimed was the sum of AED 17,000, as well as the court fee.

4. Although the Claimant had signed a Job Offer Letter on 12 October 2017, with a cited start date of 10 November 2017, she had started working for the Defendant on 3 December 2017. The Claimant alleges that she had been told on several occasions that the restaurant would soon open. The Claimant resigned from her position as Reception Officer at the Defendant by letter dated 14 February 2018, for the cited reason of “long-term salary non-payment”.

The Defence

5. The Defendant argued that the Claimant had signed an offer letter with an employment commencement date of 10 November 2017 and a 6 months’ probation period, during which period either party was entitled to terminate the employment contract without notice.

6. The Defendant further challenged the Claimant’s allegation that she had not been provided with an employment contract, maintaining that the offer letter which had been signed by both parties on 12 October 2017 constituted a contract.

7. The Defendant asserted that all of the Claimant’s outstanding salary had been wired to her account on 14 February 2018. Moreover, it flatly denied the Claimant’s allegations that she had been disrespected at work or subjected to unacceptable working conditions.

8. The Defendant submitted a note dated 8 March 2018 signed by the Claimant on 11 March 2018 that she had received her “tips and service charges…for the month of February 2018 and (had) no further claims to (sic) The Idina restaurant.” The Claimant also appears to have signed a Final Settlement dated 11 March 2018 which indicates that she has no further claims against the Defendant.

The Hearing  

9. At the Hearing, the Claimant confirmed that she had already received her pending salaries and final settlement but stated that she was unclear as to how the sums had been calculated.

10. The Claimant further claimed that she did not receive her final settlement within the 14 days provided by Article 18 of the DIFC Employment Law.

11. The Claimant complained of the delay in the restaurant’s opening and that although the job offer letter indicated a start date of 10 November 2017 (signed 12 October 2017), she had not been able to start working until 3 December 2017, during which time she had no job or income.

12. The Claimant asserted that had she not raised a case with the Small Claims Tribunal she would not have received her dues, therefore she should be entitled to her court fee from the Defendant.

13. Lastly the Claimant requested damages for the delay she encountered in not receiving her salary for 9 days of December 2017 and January 2018 until 15 February 2018. She also complained of the cold temperature at the reception of the restaurant, as well as a lack of water available at work.

14. The Defendant stressed that it should not be held responsible for the delays in the opening of the restaurant and that the Claimant had been entitled to terminate the contract of employment “with immediate effect” for the initial 6-month period. Had the Claimant been unwilling to wait for the opening of the restaurant, she could have terminated the contract.

15. The Defendant asserted that the Claimant had submitted her resignation on 14 February 2018 and that she had received her full and final payment by the morning of 15 February 2018 at the latest. The Defendant argued that the Offer Letter between the parties constituted a signed contract.

16. The Defendant called the Human Resources manager at the restaurant who confirmed that the Claimant had been paid all outstanding salary, which had been calculated pro rata taking the Claimant’s yearly salary into consideration.

17. Lastly, the Defendant disputed the Claimant’s allegations as to extremely cold temperatures at the restaurant, and averred that there was always water available for employees.

18. There had originally been argument concerning the Claimant remaining in company accommodation and the cancellation of her visa, but these appeared to have been resolved by the time of the hearing.

Discussion

i) The delay in the restaurant’s opening.

19. The Claimant complained of the fact that the job offer she had signed in October 2017 cited a start date of 10 November 2017, however, there was a delay until 3 December 2017, during which time she had no job or income. The Defendant did not see why they should be held liable for this period, particularly since the job offer letter clearly provided that either party was entitled to terminate with immediate effect during the initial 6-month period.

20. I have referred to SCT 004/2017 where SCT Judge Maha Al Mehairi held the following:

“22. The critical issue in this case is whether the Offer is subject to certain conditions contained therein. The Offer letter represents a conditional contract, considering that there are specific and necessary conditions required before the Claimant can move forward to sign an employment contract. The fact that the Claimant failed to satisfy the conditions would result in the Offer being revoked.

….

23…As the Claimant failed to meet the conditions set out in the Offer, it follows that there can be no valid and binding contract of employment between the parties and consequently, the Claim must fail.

24. As the parties never entered into an employment relationship, there is no legal basis for the employment entitlements for which the Claimant has claimed as there is no contractually binding employment relationship between the parties.”

21. However, I find that this case can be distinguished, as the Defendant itself has argued that the Offer Letter constituted a signed contract. I find it reasonable that the Claimant would have waited for the restaurant to open having signed the offer letter, particularly if regularly assured that the opening would be imminent. It follows that the Claimant should be entitled to receive remuneration for the period of 10 November 2017 until her actual starting date on 3 December 2017. Given that the Claimant’s basic salary was AED 3,000 a month – this would be a period of 23 days at a daily rate of AED 100, which equals AED 2,300.

ii) The delay in receiving salary for the period of 3 December 2017 until 14 February 2018

22. The Claimant requested damages for the delay she encountered in not receiving her salary for 9 days of December 2017 and January 2018 until 15 February 2018.

23. Article 17 of the DIFC Employment Law (DIFC Law No. 4 of 2005, as amended by DIFC Law No. 3 of 2012) provides as follows:

“Paydays. An employer shall pay to an employee all wages earned by the employee in a pay period, including vacation pay, at least monthly and within seven (7) days after the end of the pay period.”

24. Violation of Article 17 of the DIFC Employment Law is not specifically associated with a legislative penalty and thus, an award of damages to reimburse the Claimant’s loss would be appropriate in circumstances where an employer has breached this requirement of the Employment Law. The Claimant alleged that this delay in payment caused her significant loss, however such loss has not been pleaded with certainty. Pursuant to Article 112(3) of the DIFC Contract Law, I find it appropriate to assess damages in my discretion. I find that the most appropriate measure of damages in the instance of late payment of salary would be the Claimant’s daily wage, awarded for each day the payment was late.

25. It appears from the correspondence submitted to the Court that the Defendant paid the Claimant on 14 February 2018 for the full salary of January 2018. This would mean that as regards payment for the Claimant’s salary for January 2018, there was a delay of 7 days in contravention of Article 17 of the DIFC Employment Law. Therefore, I award the Claimant 7 days salary payment at a rate of AED 100 per day – totaling AED 700 for the month of January 2018.

26. The Claimant has also submitted a statement of account for December 2017 which states that she was paid AED 2,258 as salary for the month of December. As the Claimant started work on 3 December 2017, this supports her argument that she was paid 9 days salary for December 2017 beyond the time limit set out in Article 17 of the DIFC Employment Law. Therefore, I find that the Claimant should be paid 900 AED for late payment of salary in respect of December 2017. This amounts to a total of AED 1,600 under this head.

iii) Outstanding salary

27. The Claimant claimed that the Defendant had miscalculated her pro rata daily salary for February 2018 by calculating it on a yearly basis as opposed to a monthly basis. The Defendant argued that Article 62 of the DIFC Employment Law which dealt with end of service gratuity made provision for “basic wage for each year.”

28. Although the Claimant is not claiming gratuity here but rather remaining unpaid salary for February 2018, the term “daily wage” is defined in Schedule 1 to the DIFC Employment Law at paragraph 3, “Defined Terms” as follows:

“daily wage – means the compensation received by an employee as wages for services performed during a working day. The daily wage shall be calculated taking into consideration the total amount of working days in a year.”

29. I note that the Claimant signed the final settlement in respect of February 2018 on 11 March 2018 which states that she has “no further claims.” It follows that she accepted the Defendant’s calculation and cannot make a further claim under this head.

iv) Article 18 of the DIFC Employment Law

30. The Claimant made a further claim under Article 18 of the DIFC Employment Law which provides as follows:

“18. Payment where the employment is terminated (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.”

31. The Claimant accepted that she had received all her dues on 15 February 2018, one day after she resigned. It follows that she is not entitled to any late payment penalties under this provision.

v) General work conditions

32. Lastly, the Claimant claimed a breach of Articles 43 and 49 of the DIFC Employment Law, which provide as follows:

“43. Temperature in indoor workplaces

An employer shall ensure that during working hours, the temperature in all workplaces inside buildings shall be reasonable.

49. Drinking water

An employer shall provide an adequate supply of wholesome drinking water for all employees in the workplace.”

33. I do not find that this complaint has been substantiated and I therefore dismiss this claim. 

Conclusion

34. In light of the above, I find that the Defendant should pay the Claimant: (i) AED 2,300 for the period of 10 November to 3 December 2017; (ii) AED 1,600 for late payment of salary in contravention of Article 17 of the DIFC Employment Law; and (iii) all other claims are dismissed. The Defendant shall also pay the Claimant’s court fee in the sum of AED 367.50.

Issued by:

Natasha Bakirci

SCT Judge

Date of Issue: 11 April 2018

At: 12 pm

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