Claim No: SCT 415/2024

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE SMALL CLAIMS TRIBUNAL

BETWEEN

NAHO

Claimant/Applicant

and

NEUKIRCHI

Defendant/Respondent

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ORDER WITH REASONS OF H.E. JUSTICE MICHEL BLACK KC

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UPON the claim having been filed 16 September 2024 (the “Claim”)

AND UPON the Judgment of H.E. Justice Maha Al Mheiri dated 12 February 2025 (the “Judgment”)

AND UPON the Claimant’s Appeal Notice dated 28 February 2025 for permission to appeal the Judgment (the “Permission to Appeal Application” or the “Application”)

AND UPON the Respondent’s response to the Claimant’s Application dated 20 March 2025 (the “Respondent’s Submissions”)

AND UPON the Claimant’s response to the Respondent’s Submissions dated 24 March 2025

AND PURSUANT TO the Rules of the DIFC Courts (the “RDC”)

IT IS HEREBY ORDERED THAT:

1. The Claimant is granted permission to appeal judgment.

2. The costs of the Permission to Appeal Application shall be in the appeal.

3. Further directions shall be in the discretion of the Judge hearing the appeal.

Issued by:
Delvin Sumo
SCT Judge and Assistant Registrar
Date of Issue: 7 April 2025
At: 10am

SCHEDULE OF REASONS

INTRODUCTION

1. On 16 September 2024, the Claimant filed a claim in the DIFC Courts’ Small Claims Tribunal (the “SCT”) claiming various sums set out as follows (the “Claim”):

2. The judgment given on 12 February 2025 (the “Judgment”) by H.E. Justice Maha Al Mheiri (the “Judge”) dismissed the Claim.

3. By an Appeal Notice dated 28 February 2025, the Claimant applies for permission to appeal the Judgment (the “Permission to Appeal Application” or the “Application” ).

4. The Respondent filed its response to the Claimant’s Application on 20 March 2025 (the “Respondent’s Submissions”).

5. The Claimant filed her response to the Respondent’s Submissions on 24 March 2025.

THE JUDGMENT

6. In the Judgment, the Judge recorded that the dispute arose out of the employment of the Claimant by the Defendant pursuant to an Employment Contract dated 17 October 2023 (the “Employment Contract”). The Claimant was hired in the position of ‘Travel Administration Manager’ with a monthly salary of AED 15,000.

7. The Claimant signed and returned the Employment Contract to the Defendant on 20 October 2023. The Employment Contract stipulated that the Claimant’s commencing date would be 20 November 2024, with 6 months’ probation period:

8. The Judge found that due to the Claimant being sick at the time of signing the Employment Contract, the parties agreed on an amended starting date being the 27 November 2023. This was confirmed by email only, and not amended in the Employment Contract:

9. On 23 May 2024, the Claimant was issued with a termination letter and was told that the reason behind her termination was over consumption of her food allowance and her termination was effective immediately. On 30 May 2024, after negotiations and amendment to her final settlement calculation, the Claimant signed and received her final settlement entitlements (the “Final Settlement Agreement”).

10. The Judge first addressed a submission by the Defendant that by her signature of the Final Settlement Agreement the Claimant waived her right to file any future claims or complaints against the Defendant. The Judge dismissed the submission.

11. The Judge then went on to consider the correct commencement date from which to calculate the Claimant’s probation period. The importance of the point was that if the commencement date was 20 November 2023, the termination letter of 23 May 2023 was outside the 6 month probationary period, but if the commencement date was 27 November 2024, it was not. The significance of that is that if the Claimant’s employment were terminated after the completion of her probationary period (according to the Judge) the Claimant would be entitled to notice and reimbursement of certain expenses.

12. The extent of her entitlement was not investigated by the Judge because she held that the commencement date of the Claimant’s employment was 27 November 2023 and therefore termination occurred with her probationary period.

13. The basis of the Judge’s decision was that, notwithstanding that the Claimant’s Employment Contract expressly stated that the commencement date was 20 November 2023, the date had been amended to 27 November 2023. The Judge noted that the Claimant submitted the Employment Contract was not amended to reflect any updated commencement date, and so should not materially change the probation period calculation as any ambiguity should be interpreted to the detriment of the drafter, relying on Barratt v Accrington and Rossendale College [2019] EWCA Civ 2098, an English precedent that states that minor discrepancies should not override clear contractual intentions. She did not address this submission.

14. The Judge referred to Article 14(3) of the DIFC Employment Law which reads:

15. She found that the new start date was agreed in writing over email correspondence, and that a start date does not have any material impact beyond the administrative as it does not affect the obligations of the parties for the commencement of employment. She concluded that the statutory requirement was satisfied and the 27 November 2024 [ sic] is the relevant commencement date from which to calculate the probation period. Therefore, the employee was terminated within her probation period and is not entitled to a notice period or reimbursement of such.

16. She held that:

THE PROPOSED GROUNDS OF APPEAL

17. The Claimant challenges the Judgment on the grounds of serious procedural irregularities, errors of law, and misinterpretation of material facts, which resulted in an unjust resolution of her claim. Specifically, she seeks to overturn the findings relating to:

18. The proposed challenge to the Judgment in relation to the validity of the settlement agreement is misconceived as the Judge found in the Claimant’s favour that it was not a bar to her claim.

19. The Claimant’s submissions are substantial. In summary she argues in relation the commencement date:

THE DEFENDANT’S RESPONSE

20. The Defendant points out:

21. The Defendant argues that:

22. The Defendant denies that the Judge made any error of law. It suggests that Article 14 sets down the requirement s of an employment contract as to form not substance. The Judge interpreted Article 14(3) to be engaged only where an amendment to a contract has the effect of altering the rights or obligations of the parties. The corollary is that where an amendment does not alter the rights or obligations of the parties, it is administrative only and outwith the requirements of Article 14(3).

23. The Defendant contends that the alteration of the commencement date did not alter the rights and obligations of the parties. The start of the probationary period was an administrative matter, the duration of the probationary period was affected. The Judge’s approach was consistent with Article 25 of the DIFC Contract Law:

24. In the alternative, the Defendant submits that even if the change to the commencement date of the Claimant’s employment was not administrative only, the Judgment should be upheld on the basis that the email correspondence passing between the parties is sufficient to satisfy Article 14(3).

25. Article 21 of the DIFC Electronic Transactions Law provides:

“Electronic Signature" is defined as "an Electronic sound, symbol or process attached to or logically associated with a Record and executed or adopted by a person with the intent to sign the Record”. "Record" for the purpose of defining "Electronic Signature" is defined as "Information that is inscribed on a tangible medium or that is stored in an Electronic or other medium and is retrievable in perceivable form." Article 23(1) DIFC Electronic Transactions Law provides that "An Electronic Signature is attributable to a person if it was the act of the person."

26. The Defendant suggests that the Claimant’s email of 20 October 2023 attaching the Contract clearly constitutes a "Record”: it is information stored in an electronic medium and is retrievable in perceivable form. Attached to that email (i.e. the Record) was a symbol adopted by the Claimant; the Claimant concluded the email by signing her own name in the terms "Regards, Naho ".

27. The Defendant submits that when the Claimant returned the Contract it was after the 27 November 2023 commencement date had been agreed in correspondence. Accordingly, the Defendant argues, there was in fact no “amendment”.

DISCUSSION

28. Rule 53.87 of the Rules of the DIFC Courts (the “RDC”) provides that the Court will allow an appeal where the decision was:

29. RDC 53.91 provides that permission to appeal may be given only where:

30. “A real prospect of success” means a realistic, as opposed to a fanciful, prospect of success.

31. While the Claimant has raised several proposed grounds of appeal, I agree with the Respondent’s submission that the proposed appeal boils down to one contention, namely that the Judge erred in finding that the Claimant’s employment with the Respondent commenced on 27 November 2023.

32. The facts are not seriously in dispute, the Judge’s finding was largely one of law. She found that the requirement in Article 14(3) of the DIFC Employment Law that any amendment to an Employment Contract must be in writing and signed by both the Employer and Employee, need not be satisfied where the amendment is to the commencement date of the employment because the amendment is of an administrative nature only. The Judge found that, in the present case, the Respondent recorded the amendment in writing and gave written notice thereof to the Claimant prior to the amendment taking effect.

33. I consider that there is a realistic prospect of a finding that on a proper interpretation of Article 14(3) of the DIFC Employment Law the date of commencement of employment is not of an administrative nature only because of the important matters that flow from it – in particular, the duration of any probationary period and the accrual of rights upon its completion.

34. If, however, the date of commencement of employment is of an administrative nature only, on the facts of the present case the exchange of emails on 18 and 20 October 2023 cannot seriously be said not to amount a record of the amendment in writing notice of which was given before the amendment was to take effect.

35. I note the Respondent’s arguments that the Judgment should be upheld on other grounds, namely that the provisions of Article 14(3) of the DIFC Employment Law were in fact satisfied by the exchange of emails between the parties.

36. I find the Respondent’s arguments confusing. If it is correct that the first and only time the Claimant accepted the offer of employment and agreed contractual terms with the Respondent was on 20 October 2023 when she returned the signed copy of the Contract to Najfi (the Claimant’s signature on the Contract itself also being dated 20 October 2023), the agreed terms expressly stated that the commencement date of the Claimant’s employment was 20 November 2023. It seems to me to be untenable to argue (as the Respondent does) that by the time of return of the written contract the 27 November 2023 commencement date had been incorporated by correspondence. On the contrary, as the Respondent itself points out, by Article 25 of the DIFC Contract Law, had the 27 November 2023 commencement date had been incorporated, it would have been superseded by the signed the Contract of Employment.

37. Consequently, I cannot understand the Respondent’s submission that on orthodox principles of contract formation, there was no concluded contract until 20 October 2023; there was therefore no "amendment", there having been no prior agreement to be amended, and therefore Article 14(3) has no application at all.

38. If there was no prior agreement, the suggestion made on 18 October 2023 that the Claimant’s employment would commence on 27 November 2023 had no contractual effect at all. The argument seems inconsistent with the suggestion that the 27 November 2023 commencement date had been incorporated by correspondence as there was no contract within which to incorporate the date until the subsequent return of the signed contract on 20 October 2023.

39. These arguments do however highlight the fact that (as far as I can see) the Judge did not address the question of the date when the Contract of Employment was actually formed. It may be that the arguments were not made before her. It will be necessary for the Judge hearing the appeal on the ground identified at paragraph ‎40 below to decide the date on which the Contract of Employment was made. If as, the Respondent appears now to be arguing, the signed written Contract of Employment is the definitive document, it would seem to support the contention that that the Judge erred in finding that the Claimant’s employment with the Respondent commenced on 27 November 2023.

40. In the circumstances, I will give the Claimant permission to appeal on the ground that the Judge erred in finding that the Claimant’s employment with the Respondent commenced on 27 November 2023.

41. Further, the interpretation of Article 14(3) of the DIFC Employment Law is a point that potentially has a wide application and I consider that this is another compelling reason why the appeal should be heard.

42. The Claimant has asked for any appeal to be decided without a hearing. This seems to me to be a sensible and proportionate suggestion but the ultimate decision is for the Judge hearing the appeal. If there is to be no further hearing, the Court may benefit from further written submissions on the factual basis of the Claimant’s claims for Relief at section V of her Appeal Notice. I will however defer to the Judge hearing the appeal in respect of further directions.

DISPOSITION

43. Accordingly, I make the following Order: