Claim No. SCT 485/2024

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

NAYAN

Claimant/Respondent

and

NANDIKA

Defendant/Appellant

ORDER WITH REASONS OF H.E. JUSTICE THOMAS BATHURST

UPON reviewing the Judgment of H.E Justice Nassir Al Nasser dated 23 January 2025 (the “Judgment”)

AND UPON reviewing the Defendant’s Appeal Notice dated 21 February 2025 (the “Appeal”)

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

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

IT IS HEREBY ORDERED THAT:

1. The Appeal is refused.

2. There shall be no order as to costs.

Issued by
Delvin Sumo
Assistant Registrar
Date of issue: 26 June 2025
At: 9am

1. This is an appeal from an order made by His Excellency, Justice Nassir Al Nasser (the “Primary Judge”) in the Small Claims Tribunal ordering the Appellant, Nandika (the “Appellant”) to pay the Respondent, Nayan (the “Respondent”) the sum of AED 34,706.35 together with the DIFC Court’s filing fee of AED 694.12.

The proceedings and the reasoning of the Primary Judge

2. In the proceedings in the Court below, the Respondent sought payment of three amounts from the Appellant which he said he was entitled to under an employment contract between him and the Appellant dated 4 March 2024. The total sum claimed was AED 40,800 made up of a claim for commission, salary for August 2024 and for 17 days of September 2024 and remuneration for eight days of annual leave.

3. The Primary Judge rejected the Respondent’s claim for commission but awarded the sum of AED 34,700.35 in respect of the salary and leave claims.

4. In dealing with the salary claims, the Primary Judge rejected the Appellant’s contention that the Respondent had agreed to forego such salary. He referred to Article 20 of the DIFC Employment Law which relevantly prohibits any deduction of salary without the prior written agreement of the employee. The Primary Judge pointed out that the Appellant did not provide any evidence of such an agreement.

5. The Primary Judge also rejected the claim that the Respondent did not come to work in August or in the 17 days of September stating that the Appellant had failed to provide evidence to that effect.

6. The Primary Judge also rejected the Appellant's contention that the Respondent was not entitled to annual leave as he was on probation.

The Appellant’s Submissions

7. The Appellant filed its Notice of Appeal on 21 February 2025. It should be noted that no application for permission to appeal as required by Rule 53.89 of the RDC was made in the Appellant’s Notice of Appeal. The Appellant does not contend that the Primary Judge erred as a matter of law. Rather, the appeal was said to be based on what the Appellant described in its Notice of Appeal as “new crucial evidence that directly impacts the findings”.

8. Ground 1 of the Grounds of Appeal contends that the Respondent claimed full salary for August and 17 days in September 2024 despite unauthorized absences. The Appellant seeks orders that the Respondent produce his official Entry and Exit Report to verify his travel history and confirm whether he was in the UAE during the disputed salary period.

9. Ground 2 of the Grounds of Appeal contends that on 17 September the Respondent signed an official DIFCA Employment Permit Cancellation certifying he had received all his financial dues and waived any future claims. There was produced in support of this contention a document said to be signed by the Respondent on 17 September 2024 certifying he had received all his dues and verifying that he had no further right to make any claims. It is not contended that this document was before the Primary Judge.

10. Ground 3 of the Grounds of Appeal contends that an email was sent by the Appellant to the Respondent’s company informing the Respondent of a salary reduction to AED 9,000 plus 50% commission effective from 1 September 2024. The Appellant contended that the email was said to void the previous agreement, and the new agreement was effective as of 1 September 2024. The Appellant contends the Respondent did not reject this agreement and by continuing working he impliedly accepted its terms.

11. The Appellant contends the Primary Judge overlooked this evidence. However, the Appellant’s response to the Respondent’s claim in the SCT made no mention of any agreement varying the salary payable to the Respondent as and from 1 September 2024.

The Respondent’s Submissions

12. In its response, the Respondent claimed that the email, the subject of Ground 2 of the Grounds of Appeal, was forged. He accepted he received the email, the subject of Ground 3 but submitted, however, that under DIFC Employee Law, no one is allowed to adjust or decrease the salary of an employee in the middle of the contract. He stated that was why he did not acknowledge the email and did not reply.

Consideration

13. Ground 1 can be dealt with shortly. The Appellant makes assertions and seeks orders of the Court to assist it in proving their truth. It is not appropriate on appeal to seek orders requiring production of documents which may or may not assist the Appellant’s case had they been sought at the time of trial. There is no merit in this ground, and it should be dismissed.

14. So far as Ground 2 is concerned, although the provisions dealing with appeals to the Court of First Instance in RDC Rule 53 do not deal with the admission of new evidence on appeal the general principles relating to the adducing of such evidence on appeal, in my view, should apply. The principles state that as a matter of discretion, new evidence on an appeal will only be permitted when the evidence could not have been adduced with reasonable diligence at the trial and where the Court concludes that it would have an important influence on the outcome of the case.

15. No explanation has been given for the failure to adduce the evidence at the trial. Particularly in the circumstances where it is contended that the document being relied upon is a forgery, there is in my judgment no basis for permitting it to be adduced.

16. In these circumstances, this ground must fail.

17. So far as Ground 3 is concerned, although the Respondent concedes he received the email he stated he did not assent to its terms. As the Primary Judge correctly pointed out (judgment (16)) Article 20 of the DIFC Employment Law requires the written agreement of the employee to any agreement to vary or reduce the employee's salary. There is no evidence to suggest the Respondent gave any such written consent. This ground of appeal also fails.

CONCLUSION

18. As I indicated, the Appellant did not seek permission to appeal. To the extent that permission is necessary, it should be refused. In any event, the appeal should be dismissed.