Claim No. SCT 578/2019
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 NASSIR AL NASSER
BETWEEN
LIV GENERAL TRADING LLC
and
LANDEN
| Hearing | : 2 February 2020 |
|---|---|
| Judgment | : 9 February 2020 |
JUDGMENT OF SCT JUDGE NASSIR AL NASSER
UPON the Claim Form being filed on 23 December 2019
AND UPON the parties being called on 13 January 2020 for a Consultation with SCT Judge Ayesha Bin Kalban and the parties not having reached settlement
AND UPON a hearing having been listed for SCT Judge Nassir Al Nasser on 2 February 2020, with the Claimant’s representative and the Defendant attending in person
AND UPON reading the submissions and evidence filed on the Court file
IT IS HEREBY ORDERED THAT:
1. The Claimant’s claims shall be dismissed.
2. There shall be no order as to costs.
Issued by:
Nassir Al Nasser
SCT Judge
Date of issue: 9 February 2020
At: 9am
The Parties
1. The Claimant is Liv General Trading LLC (the “Claimant”), a company incorporated under the Laws of Dubai with registered office at Dubai, UAE.
2. The Defendant is Mr. Landen (the “Defendant”), a former employee of the Claimant, residing in Dubai, UAE.
Background and Procedural History
3. The underlying dispute arises over an alleged breach of a settlement agreement signed by the Claimant and the Defendant dated 16 October 2019 (the “Settlement Agreement”).
4. On 23 December 2019, the Claimant filed a claim against the Defendant claiming the sum of AED 118,650.
5. On 25 December 2019, the Defendant responded to the claim by filing an Acknowledgment of Service with an intention to defend the claim.
6. The parties met for a Consultation with SCT Judge Ayesha Bin Kalban on 13 January 2020 but were unable to reach a settlement.
7. On 2 February 2020, a hearing was listed before me.
The Claim
8. The Claimant’s case is that the Defendant was employed by the Claimant from 28 May 2019 until 31 October 2019, being the termination date. Following the termination of the Defendant’s employment, the parties entered into the Settlement Agreement.
9. Under the terms of the Settlement Agreement, the Claimant paid the Defendant an ex-gratia payment of AED 118,650.
10. The Claimant alleges that between 20 and 22 October 2019, the Defendant was found in breach of the Settlement Agreement by sending 14 emails (the “Emails”) from his work email account to his private email account; Landen@gmail.com. The emails contained confidential information and/or attachments containing confidential information.
11. The Claimant alleges that the Defendant’s actions in forwarding the emails to his private email address without the Claimant’s permission constituted a breach of the following clauses of the Settlement Agreement:
“7. SETTLEMENT CONDITIONS
7.1The Employee agrees that:
(f) he has not kept any copies of any documents electronically or otherwise;
(g) he will keep confidential any information of a confidential nature which has come into his possession during his employment in relation to the business and operation of the Company and/or any Group Company or its or their clients;
7.2 After the Termination Date, the Employee agrees that he will continue to comply with the obligations of his Employment Contract that continue to apply after
termination; specifically, those relating to Confidentiality and Non-Competition provisions.
8. RETURN OF BELONGINGS
8.1 The Employee confirms to return to the Company on or before the Termination
Date any keys, company cell phone, badge, laptop, RSA token, laptop charger, backpack, Kindle test devices, and other property of the Company (or a Group entity) or objects which the Company (or a Group entity) is entitled to have returned to it. The Employee confirms to return all business documents, files, confidential information within one week of the Agreement to the company. The employee confirms that all confidential information, without having made a copy and without having transferred any copy.
8.2 The Employee confirms to communicate to the Employer all IT codes, passwords and access locks and confirms to cease to use them after the Termination Date.
8.3 Furthermore, the Employee confirms not to be in possession of or to make reference to data, in any form, containing confidential information concerning the Employer or the Group and their business partners or clients after his last day of work.
9. CONFIDENTIALITY / NON-CANVASSING
9.1 The Employee undertakes not to reveal or to communicate to any person or any commercial entity, any confidential oral or written information or trade secret,
which the Employee has knowledge of by reason of his working for the Company
(or any Group Company), concerning the business, the commercial practice, the relationships or the clients (or their names and addresses) of the Company or the Group.
9.2 The Employee agrees that he will not keep any information or documentation which belongs to the Company or the Group whether or not such information or documentation is labelled as confidential.
9.3 The Employee commits himself not to solicit, directly or indirectly, any clients,
consultants/service providers and/or employees of the Company or Group to terminate any contract with one of these entities.”
12. The Claimant alleges that upon discovering the Defendant’s actions, the Claimant wrote to the Defendant on 5 December 2019 to inform him of its discovery and demanded that he provide an undertaking, and that he re-pay the ex-gratia payment. Subsequently, no response was received by the Claimant until 18 December 2019, after which time the Claimant initiated the proceedings via the DIFC Courts.
13. The Claimant asserts that, on 19 December 2019, the Defendant provided written confirmation that he had forwarded emails to his private email account but he stated that these emails had not been forwarded to any third party and that he had deleted the emails from his records.
14. Therefore, in sum, in accordance with clause 10.1 of the settlement Agreement, the Claimant alleges that the Defendant’s actions amount to clear breach of the Settlement Agreement and is seeking repayment of the ex-gratia payment.
The Defence
15. The Defendant justified his actions in sending the Emails to his personal account by confirming that his business laptop had been s damaged during that period and that the Claimant’s IT department had informed him that repairs could took a minimum of four working days. Consequently, the IT department provided the Defendant with an external keyboard to manage the handover and prepare for the “White Friday Event”.
16. The Defendant also alleges that the Claimant’s allegations are without any legal basis. In addition, the Defendant asserts that the IT department, security and his manager were all aware of the situation and that he was sending emails to his personal account to complete his tasks.
17. He also adds that use of the external keyboard was particularly problematic as he could not install a mouse due to the limited USB storage space on the laptop. Hence, he forwarded the emails to his personal account.
18. The Defendant also alleges that he did not forward any Linda emails from his personal account to any other Linda email addresses or any third parties, and that all Linda emails were deleted after being checked, and no Linda emails remained in his personal account.
19. At the Hearing, the Defendant offered the Claimant the opportunity to check his private email account to prove that the Emails were no longer within his possession.
20. In sum, the Defendant alleges that he did not breach the Settlement Agreement and that although he sent the Emails to his personal account, such action was unavoidable in the interests of completing the tasks given to him before his last working day.
Discussion
21. The underlying dispute arises over an alleged breach of the Settlement Agreement. The question to be asked is whether there was a breach, what are the intentions of the Defendant, and whether the Claimant has suffered any harm as a result.
22. The Claimant argues that upon investigation, they discovered that the Defendant sent 14 the Emails to his personal account.
23. In response, the Defendant did not deny sending the Emails but sought to explain the circumstances surrounding the situation during that period.
24. As addressed at paragraph 15 above, the Defendant argues that he used his personal account due to issues with his keyboard and due to the “White Friday Event” he argues that it was efficient to forward the Emails to finish the job before his last working day.
25. Although the Defendant has admitted that he sent the Emails to his personal account, the Claimant failed to provide copies of the Emails and did not provide the Courts with the nature of such emails. The Claimant also failed to provide evidence to show that the Defendant was in possession of the emails following his termination. Furthermore, the Claimant failed to provide the Courts with any evidence to show the harm or damage suffered, in addition, the Claimant failed to provide any evidence to show whether the Defendant had in fact shared the emails with a third party.
26. Furthermore, during that period, the Defendant was an employee of the Claimant and already had access to such emails.
27. I find that there was no evidence of bad faith nor harmful intention by the Defendant. I find that the Defendant’s actions did not result in a breach as he was an employee of the Claimant during the period at which he had access to the Emails. I also find that it is unfair for the Defendant to be denied of his employment entitlements as there was no harm nor damage suffered by the Claimant.
28. Therefore, I dismiss the Claimant’s claim for lack of evidence.
Conclusion
29. In light of the aforementioned, I dismiss the Claimant’s claims.
30. Each party shall bear their own costs.
Issued by:
Nassir Al Nasser
SCT Judge
Date of issue: 9 February 2020
At: 9am