October 10, 2021 SCT - JUDGMENTS AND ORDERS
Claim No. SCT 242/2021
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 H.E. JUSTICE MAHA AL MHEIRI
|Hearing :||22 September 2021|
|Further submissions :||27 September 2021|
|Judgment :||10 October 2021|
JUDGMENT OF H.E. JUSTICE MAHA AL MHEIRI
UPON this Claim being filed on 17 August 2021
AND UPON the Defendant filing an Acknowledgment of Service with a Counterclaim dated 24 August 2021
AND UPON the Claimant amending the Claim form on 15 September 2021
AND UPON reading the submissions and evidence filed and recorded on the Court file
IT IS HEREBY ORDERED THAT:
1. The Claimant’s claim is dismissed.
2. The Defendant’s Counterclaim is dismissed.
3. The Defendant shall cancel the Claimant’s visa.
4. The Defendant shall return the Claimant’s passport to the Claimant.
5. Each party shall bear their own costs.
Nassir Al Nasser
Date of issue: 10 October 2021
1. The Claimant is Lambhit (the “Claimant”), an individual filing a claim regarding her employment at the Defendant company.
2. The Defendant is Laghuvi, a restaurant located at DIFC, Dubai, UAE (the “Defendant”).
Background and the Preceding History
3. The parties entered into an employment contract on 22 December 2019 (the “Employment Contract”), pursuant to which the Claimant was employed as a waitress with a monthly salary of AED 2,200. The agreed commencement date as stated in the Employment Contract was 1 January 2020.
4. The Defendant informed the Claimant that, pursuant to the restrictions imposed by the authorities for the closure of restaurants due to the outbreak of the COVID-19 pandemic, the employment of the Claimant was to be postponed until further notice.
5. In March 2020, the Defendant commenced the process of applying for an employment visa for the Defendant. Upon the submission of the application, the DIFC Authority (“DIFCA”) informed the Defendant by way of email that the application could not be processed due to a previously issued overstay fine accrued by the Claimant.
6. The Claimant requested that the Defendant negotiate with the DIFCA to reduce the overstay fine. As of yet, the Defendant has not been able to complete the employment visa application process.
7. DIFCA informed the Defendant that it would pay the overstay fines on the Defendant’s behalf and that the Defendant should repay the amount to proceed with the application for the Claimant’s employment visa.
8. On 1 June 2020, the Claimant commenced working with the Defendant and continued working until 29 December 2020 when she submitted her resignation, citing that her resignation was to be effective immediately.
9. The Defendant requested that the Claimant serve her notice period, but the Claimant refused. On 28 March 2021, the parties entered into a settlement agreement whereby it was agreed that the Claimant would pay the Defendant AED 5000 against her 3-month notice period.
10. On 17 August 2021, the Claimant filed a claim in the DIFC Courts’ Small Claims Tribunal (the “SCT”) claiming the following:
(a) AED 4,700 as reimbursement for the visa amount paid to the Defendant;
(b) The Defendant pay the pending overstay fines on the Claimant’s visa; and
(c) The return of her passport; and
(d) The cancelation of her employment visa with the Defendant
11. On 24 August 2021, the Defendant filed an Acknowledgment of Service and Counterclaim seeking an order from the Court that:
(a) The Claimant’s claim be dismissed in its entirety;
(b) AED 6,000 compensation for a 3-month notice period be paid by the Claimant to the Defendant;
(c) The amount of AED 5,000 reflecting the overstay fines owed to DIFCA be paid by the Claimant to the Defendant;
(d) The Claimant bear the Defendant’s costs of legal action taken against the Claimant;
(e) The Claimant bear the Defendant’s costs for the filing of the Counterclaim; and
(f) Any other relief as the Court may consider just and appropriate.
12. The parties met for a Consultation with SCT Judge Hayley Norton on 1 September 2021 but were unable to reach a settlement. In line with the rules and procedures of the SCT, this matter was referred to me for determination, pursuant to a Hearing held on 22 September 2021.
13. On 23 September 2021, the Defendant paid the pending overstay fine on behalf of the Claimant in the amount of AED 5,550, as DIFCA refused to process any visa permit applied for by the Defendant company due to the pending fine.
14. After the Hearing, I requested additional submissions from the parties which were filed on 27 September 2021.
15. This dispute is governed by DIFC Employment Law No. 2 of 2019 (the “DIFC Employment Law”) in conjunction with the relevant Employment Contract.
16. In reviewing the case file, one crucial factor that effects the Court’s ability to determine the Claimant’s entitlement came to light.
17. It is the Claimant’s submission in all the evidence submitted to the Court that her last working day with the Defendant is 29 December 2020. There is no other evidence submitted demonstrating that the Claimant was working beyond that date. In addition, the Claimant confirmed that the resignation of her employment was made with immediate effect.
18. Article 10 of the DIFC Employment Law which sets out the limitation period for which an employee can bring their claim before the Court
“10. Limitation Period
Subject to Article 61(2), a Court shall not consider a claim under this Law unless it is brought to the Court within six (6) months of the relevant Employee's Termination Date.”
19. In light of the above finding, I have determined that the Claimant’s claims and Defendant’s Counterclaim are time-barred having exceeded the 6 months’ limitation period from the Claimant’s resignation date, and as such the Claimant’s claim and Defendant’s Counterclaim shall be dismissed.
20. Article 57 of the DIFC Employment Law reads as follows:
“57. Visas and permits
(2) An Employer is not permitted to:
(a) recoup any costs and expenses incurred pursuant to Article 57(1) from an Employee; or
(b) retain the passport or other original personal documents of an Employ-ee.”
21. In light of the above, the Defendant is not permitted to continue to retain the Claimant’s passport and therefore the Claimant’s passport must be returned henceforth.
22. In light of the aforementioned, The Claimant’s claim and Defendant’s Counterclaim are dismissed.
23. The Defendant shall cancel the Claimant’s visa and return the Claimant’s passport to the Claimant.
24. Each party shall bear their own costs.
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