Claim No: CFI 041/2018
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
In the name of His Highness Sheikh Mohammad Bin Rashid Al Maktoum, Ruler of Dubai
IN THE COURT OF FIRST INSTANCE
ON APPEAL FROM THE SMALL CLAIMS TRIBUNAL
BEFORE H.E. JUSTICE OMAR AL MUHAIRI
CAPITAL RESOURCES LIMITED
Hearing: 15 July 2018
Counsel: Sarah Malik (DWF) for the Appellant Ali Jam, the Respondent (appearing as a litigant in person)
Judgment: 24 July 2018
JUDGMENT OF H.E. JUSTICE OMAR ALMUHAIRI
UPON hearing Counsel for the Appellant and the Respondent in person on 15 July 2018
AND UPON reading the submissions and evidence filed and recorded on the Court file
IT IS HEREBY ORDERED THAT:
1. The Appellant’s Appeal is dismissed.
2. The SCT Registry shall re-issue the SCT Judgment of SCT Judge Nassir Al Nasser dated 11 April 2018 with a brief explanation to the parties in relation to the typographical error of paragraph 21.
3. There be no order as to costs.
Ayesha Bin Kalban
Date of Issue: 25 July 2018
1. This is an appeal by the Defendant submitted to the Court of First Instance on 1 May 2018, seeking to set aside the SCT Judgment of SCT Judge Nassir Al Nasser on 11 April 2018, (“the Judgment”) issued in favour of the Claimant, Mr. Ali Jam, (herein after referred to as “the Respondent”). Following the termination of his employment contract with the Defendant, (herein after referred to as “the Appellant”), the Respondent filed a claim against the Appellant for his unpaid salary and additional employment rights due to him. The Judgment dated 11 April 2018 ordered the Appellant to pay the Respondent a sum of AED 298,437.43 and the court filing fee.
2. On 3 June 2018, permission to appeal was granted by SCT Judge Nassir Al Nasser to this Court. In support of the appeal, the Appellant prepared an Appellant’s Notice which sets out the grounds of appeal therein, supported by a Skeleton Argument furnished by the Appellant’s solicitors, which I have had the benefit of reviewing.
3. The Respondent has appeared in person and has put forward his complaints in a personable and coherent fashion, and I am grateful to him. I have had the advantage of counsel, Ms. Sarah Malik, who has appeared on behalf of the Appellant, and I am grateful to her as she has borne her obligations well in regards to dealing with a litigant in person and assisting the Court in respect of controversial matters in this case.
4. The Judgment in question runs to 45 paragraphs. It identifies with precision the nature of the issues between the parties, the background and sets out in some detail the grounds for concluding that the claim should be allowed. In doing so, the Judge refers to various documents and to various aspects of the DIFC Employment Law.
5. The appeal, being an appeal from the Tribunal, is limited in its scope and, in particular, attention must be drawn to Rule 44.143, which reads as follows:
“The Court of First Instance will allow an appeal from a decision of the tribunal where the decision was (1) wrong in relation to a question of law; (2) unjust because of procedural unfairness or miscarriage of justice and/or (3) wrong in relation to any other matter provided for in or under the DIFC law.”
6. Therefore, two points need to be addressed. Firstly, a complaint about a finding of fact by the lower court is not just justifiable on an appeal unless it flows from some procedural unfairness or miscarriage of justice. The only justified complaint in respect of a decision against which an appeal is brought from the decision of the Tribunal is that it was either procedurally unfair or gave rise to an error of law. All questions of fact are entirely for the Tribunal to determine.
7. The second point that needs to be made in relation to any appeal is that it is limited by virtue of Rule 44.136 to a review of the decision of the lower court. It is not a rehearing. It follows that the Appellant must identify matters within the Judgment, which justify or arguably justify a complaint that the judge was wrong in law or was conducting proceedings in a manner which gave rise to unfairness or a potential miscarriage of justice.
8. With that introduction, I turn to the various points which are raised in the Notice of Appeal as developed in the Skeleton Argument and helpfully further developed by the Defendant’s counsel in the course of her oral submissions.
9. In paragraph 1.1 of the Grounds of Appeal, the Appellant submits the learned Judge failed to establish “the true relationship between the parties in circumstances where it was asserted that the contract does not represent or describe the true relationship”. The Appellant in this paragraph makes reference to the employment cases of Protectecoat Firthglow Ltd v Szilagyi  EWCA Civ 98 and Autoclenz v Belcher  UKSC 41. I assume that the Appellant is relying on the principle of ‘true relationship between the parties’ which is the key principle discussed in these cases.
10. The test to be applied in order to determine whether the ruling in Protectecoat should apply to this case is to question whether or not the facts or reasoning of Protectecoat are substantially similar to the facts or reasoning of this case.
11. In my opinion, the facts of Protectecoat case are substantially different to this case for the reason that in the case of Protectecoat there was a wealth of evidence to demonstrate to the Judges that the true nature of the work done by Mr Szilagyi was opposite to that described in the written contract, and therefore it was evident from the evidence that the true relationship between the parties was in contradiction to the relationship stipulated by the written contract. Furthermore, the Judges ruled in Protectecoat that the written contract was a sham, as was contended by Mr Szilagyi.
12. The case of Protectecoat is distinguishable from this case for many reasons, the two most salient reasons being that the Appellant has not provided the Court with any evidence to support its contention that the relationship between the parties is contrary to that ascribed in the written agreement.
13. The Appellant has not made submissions that the written contract is a sham. Rather, the Appellant accepts the written contract and simply states that the contract and salary amount contained within should be applied but with the condition that the Respondent executes a particular performance, i.e. the Appellant wants the Court to rule that an additional clause of performance should be applied in application of the written contract, due to the fact that this additional clause was verbally agreed with the Respondent. However, the Appellant has provided no evidence to prove such a verbal agreement was conducted.
14. For the reasons I list above, the Protectecoat Case is distinguishable from this case due to the lack of evidence provided by the Appellant to support its contention, and due to the fact that the Appellant has not contended that the written agreement is a sham.
15. In the case of Autoclenz, the claimant provided car-cleaning services to motor retailers and auctioneers. It had contracts with British Car Auctions (“BCA”) for cleaning vehicles at a number of different places. The respondents were 20 individual valeters who entered into a contract with the claimant to provide car-cleaning services at BCA in Derbyshire, in the United Kingdom. The respondents contended that they were employees within the meaning of the National Minimum Wage Regulations and that, as employees/workers, they were entitled to be paid and to receive statutory paid leave from the claimant. However, the claimant conversely contended that the contract in that case expressly stipulated the respondents were self-employed sub-contractors working as independent contractors.
16. In the Autoclenz case, the Judges ruled that the true relationship between the parties was that of employer and employee, and therefore they ruled that the relationship between the parties was different to that which was stipulated in the contract.
17. Again, I have to consider whether Autoclenz is distinguishable or substantially similar in fact and reasons to this case, in order to decide whether Autoclenz has any application to this matter. Despite the Judges having ruled the true relationship between the parties was other than that stipulated in the contract (having to consider true relationship after the contention of one party that the contract did not represent true relationship) it is important to note the Judges’ comments in Autoclenz and their explanation for why they chose to rule in the manner they did:
“The conclusion that Autoclenz’s valets were employees in all but name was a perfectly tenable one on the evidence which the Judge had before him” (Paragraph 36)
18. As can be seen from the above comment, in the case of Autoclenz, there was a lot of evidence to prove that the nature of the work of the Respondent surmounted to that of an employee rather than that of an independent sub-contractor. Therefore, similar to Protectecoat, the Judges in Autoclenz ruled that the true relationship between the parties was different to that stipulated in the contract as the wealth of evidence presented to them had persuaded them so.
19. Autoclenz is distinguishable from this case because I have not been provided with any evidence from the Appellant to prove an alternative relationship between the parties to the one stipulated in the contract. Indeed, the only key item of evidence in this case is the written contract itself.
20. If the Appellant wishes me to rule that its true relationship with the Respondent is other than that stipulated in the contract, then it must present significant evidence capable of maintaining that case. However, neither the Appellant nor the Respondent have produced any evidence to suggest that their relationship is contrary to that stipulated in the written contract.
21. Therefore, as stated above, neither Autoclenz nor Protectecoat have any application to this case and I dismiss the Appellant’s ground that the lower court Judge erred by not considering the true relationship between the parties.
22. In paragraph 1.1 of the Grounds of Appeal, the Appellant also submits that “the learned Judge erred in his approach by simply having regard to the words of the written contract”. As set out above, the learned Judge could not have considered the true relationship of the parties due to lack of material evidence available, and the learned Judge’s only option in law was to rely on the words of the written and signed contract and the DIFC Employment Law in order to make his ruling. Therefore, in my opinion, the learned Judge did not err in his approach by simply having regard to the words of the written contract, seeing as he also considered the DIFC Employment Law and the evidence both parties produced.
23. In paragraph 1.1.1 of the Grounds of Appeal, the Appellant submits that the Respondent never carried out the services of an employee and never requested any pay for the duration of the contract. In any event, the Appellant failed to provide evidence to the Court to prove its submission. Therefore, I dismiss this Ground of Appeal.
24. In paragraph 1.1.2 of the Grounds of Appeal, the Appellant submits that the remuneration of AED 240,000 per annum referred to in the contract was contingent on the Respondent securing a revenue generating transaction. It can be seen from the written contract that no such conditional clause was incorporated into the contract. The Appellant has also previously mentioned this condition clause was verbally agreed with the Respondent, however the Appellant has failed to provide evidence to prove this and therefore I reject this submission. Furthermore, in paragraph 20 of the SCT Judgment, the Appellant has also previously submitted that for the period of 12 December 2016 to 13 December 2017 the Respondent had not been present and that communication between the parties took place via external meetings and via SMS and other electronic communication platforms. However, the Appellant has failed to provide evidence of the SMS and electronic communication which it could easily have obtained and provided to the Court. Therefore, I dismiss this Ground of Appeal.
25. In paragraph 1.2 of the Grounds of Appeal, the Appellant submits the learned Judge has failed to consider why the Appellant has not paid the Respondent. The Appellant submits that he has not paid the Respondent because there was a lack of performance by the Respondent. The Appellant relies on the fact that no monies were paid to the Respondent nor requested by the Respondent as evidence for non-performance of duties by the Respondent. In my view, non-payment of salary cannot surmount to reasonable evidence to prove non-performance of duties by the Respondent. Furthermore, the Appellant has failed to provide any material evidence to prove the Respondent’s lack of performance. The Appellant has also failed to provide evidence of employment records as required by Article 16(1) of the DIFC Employment Law. Whilst it is understandable that the Appellant may argue it cannot provide detailed evidence of the Respondent’s performance record as it alleges the Respondent did not perform any duties, it is also important to note that Article 16(1)(d) requires the Appellant to keep a record of ‘the hours worked by the employee on each day, regardless of whether the employee is paid on an hourly or other basis’. The Appellant has failed to comply with this requirement of the DIFC Employment Law which requires all employers as a minimum requirement to keep such a record. If the Appellant had diligently kept a note of such a record, the Appellant would have been able to prove from the entries of the record that on each day the Respondent was required to perform duties, that a mark of ‘absence’ or ‘no performance’ was registered, which perhaps would have constituted as evidence. However, as the Appellant has either failed to keep such a record or produce evidence of non-performance, I dismiss this Ground of Appeal.
26. The Appellant further submits in paragraph 1.3 of the Grounds of Appeal, the learned Judge erred in law in his approach in simply relying on the written employment contract without looking at the reality of the arrangement between the parties. As previously discussed, given that there was a lack of evidence proffered by the Appellant to prove an alternative reality to the written contract, the learned Judge did not err in his approach, rather the Judge has applied the correct approach. The learned Judge is required to base his decision on the DIFC Employment Law, the written and signed contract between the parties and any relevant evidence proffered by either party. The parties have not provided any evidence contrary to the written, signed contract, and therefore the learned Judge can only base his decision on the written contract and the DIFC Employment Law and the Rules of the DIFC Courts.
27. The Appellant additionally submits that the Respondent failed to provide the Court with a signed copy of the employment contract. This submission is irrelevant as the Court managed to locate a copy of the signed employment contract which was accepted by the Government as valid when it issued the Respondent its DIFC Employment Visa. Therefore, it is immaterial whether the Appellant or Respondent failed to provide a signed copy.
28. In paragraph 2.1 of the Grounds of Appeal, the Appellant refers to clause 3.1 of the written contract, which states that the contract is contingent upon “the Employee not being in breach of any terms of any pre-existing employment contracts or declarations”. The Appellant then submits that the learned Judge failed to give any due weight to relevant evidence before him that unequivocally showed a material breach of the condition precedent by the Respondent. In my opinion, the Appellant has failed to provide evidence of any pre-existing agreement regarding the condition precedent of particular performance by the Respondent. Therefore, the learned Judge did not err in his approach.
29. In paragraph 2.2 to 2.4 of the Grounds of Appeal, the Appellant makes reference to the Respondent’s previous criminal convictions and criminal behaviour. The Appellant then submits that had he known of the Respondent’s criminal record prior to signing the contract and providing sponsorship, the Appellant would not have proceeded with entering into an employment agreement with the Respondent. The Appellant further submits the learned Judge erred in his approach because he failed to give any weight to evidence of the Respondent’s criminal background and wrongly held he could see no relevance of this background. I can see that the learned Judge did not err in his decision to reject the evidence and submissions in relation to the Respondent’s criminal record on the basis of lack of relevance. The learned Judge was entirely correct in his approach as the Respondent’s criminal background is indeed irrelevant to these proceedings at law. The reason for this is that the DIFC Employment Law does not mention nor require employers to take into consideration an employee’s previous criminal record, nor does the DIFC Employment Law make the validity of an employment contract conditional upon the lack of an employee’s criminal record. Furthermore, the written, signed agreement between the parties also does not incorporate any clause requiring the employee to have a clean record. Therefore, it is entirely correct, for the learned Judge to conclude the Respondent’s criminal record to be irrelevant. It is the Appellant’s responsibility as the employer to conduct relevant background checks on potential employees prior to granting employment and even in the event of discovery of a criminal record, it is still the employer’s discretion to grant employment as the law does not prevent an employer from doing so. Discovery of the Respondent’s criminal history after granting employment is irrelevant. Furthermore, it is interesting to note that the Appellant did not base its reasons for termination on the basis of the Respondent’s criminal record. Therefore, I dismiss this ground of appeal for lack of relevance to the dispute.
30. In any event, the learned Judge did not err in his approach, seeing as the learned Judge considered the DIFC Employment Law, the written and signed contract between the parties as well as all the material evidence proffered by the parties. In addition to this, the learned Judge was not presented with any substantial evidence by the parties to suggest an alternative relationship to that stipulated by the written contract, and it is not within the learned Judge’s jurisdiction to consider the criminal convictions of the Respondent, as neither the written contract nor the DIFC Employment Law make mention of previous criminal convictions of either party having any effect on the validity of the employment contract and the clauses contained therein. The learned Judge has considered all the points raised by the Appellant in their pleadings and surmised them in the SCT Judgment, however the Appellant failed to provide any evidence to support their contentions to persuade me.
31. The Appellant submits that paragraph 21 of the SCT Judgment has been accidentally inserted by the learned Judge and has no relevance or connection with this dispute. Indeed, paragraph 21 details that the Defendant (Appellant) analysed their company bandwidth for internet and online date and came to the conclusion that the Claimant’s (Respondent’s) computer was used for internet surfing for non-work-related matters during work hours. Having scrutinised paragraph 21 of the SCT Judgment, I have come to the conclusion that paragraph 21 is indeed incorporated by error, for the reason I find that paragraph 21 is inconsistent with the Appellant’s case that the Respondent had no access to the company’s desk or office space and was never present at the company’s offices.
32. On this basis, it appears that perhaps due to some typographical error, paragraph 21 has been wrongly incorporated into the Judgment.
33. However, as the learned Judge has not relied on the contents of paragraph 21 to make his decision, the ruling of the learned Judge still stands and there is no need to allow an appeal based on this error. Nevertheless, the learned Judge did make an error by incorporating paragraph 21 into the SCT Judgment and may make a correction to the Judgment under the Rules of the DIFC.
34. I would direct the learned Judge to Rule 36.41 to 36.46 of the Rules of the DIFC Courts to make the correction and re-issue the Judgment with a brief explanation to the parties regarding the erroneous entry of paragraph 21.
35. I would like to make it absolutely plain that my reading of the Judgment demonstrates that contrary to the Appellant’s submissions, the Judge has considered this case with conspicuous skill and care, without any foregone conclusion or bias. It is a well-reasoned and well written Judgment, and this application by way of an appeal against that Judgment must be dismissed.
Ayesha Bin Kalban
Date of Issue: 25 July 2018
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