Abigail v Lancelote Lounge LLC 2020 [DIFC] SCT 084

020 in the sum of AED 12,000 for breach of contract and compensation due to wrong and bad faith of claims.

7. The matter was called for a Consultation before SCT Judge Delvin Sumo on 26 March 2020, whereby the parties failed to reach a settlement. In accordance with the rules and the procedures of the SCT, the matter was listed for a hearing before me on 8 April 2020 (the “Hearing”) which was attended by both parties.

The Claim

8. The Claimant’s case is that she was employed with the Defendant as a ‘Receptionist’ from 31 March 2018. The Claimant resigned and served her last working day on 24 February 2020, and submits that she did not receive her end of service entitlements as owed to her pursuant to the DIFC Employment Law, in the amount of AED 10,081.92.

9. The Claimant seeks payment of the following sums:

The Defence and Counterclaim

10. In response to the Claim, the Defendant confirms that it does not oppose the claims made by the Claimant in relation to the outstanding salary for January and February 2020 nor her end of service gratuity.

11. The Defendant, however, submits that the Claimant is not entitled to vacation leave days as she has accrued a total of 44 days during her employment with the Defendant, of which, the Defendant submits an amount of AED 2,400 was paid to the Claimant for an additional 24 accrued but untaken annual leave. The Defendant further submits that the Claimant has been paid an amount of AED 2,400 for another 24 accrued but untaken vacation leave days. Furthermore, the Defendant disputes that the Claimant is entitled to compensation for public holidays in accordance with Article 3 of the Employment Contract which states the following:

“Employee shall work 6 days per week, with one day off. Employee may choose her day off among weekdays. Public holidays are classified as general week days; Employee shall work on public holidays under the same conditions as well.”

12. In addition, the Defendant contends that the Claimant acted in breach of Article 7 of the Employment Contract which states that the Claimant has an obligation to pay the Defendant a sum of AED 6,000 incurred for the training costs if the termination of the employment relationship occurs within 2 years of employment. The Defendant also claims compensation in the sum of AED 6,000 citing the reason for this claim to be ‘due to wrong and bad faith of claims hardly affecting employer and company reputation’ [sic]. The Defendant alleges that the Claimant has made unreasonable, false and misleading statements in relation to her end of service entitlements and therefore submits it should be entitled to sums from the Claimant to compensate, the amount of which would be deducted from the Claimant’s end of service entitlements.

13. In response to the Counterclaim, the Claimant argues that she was never provided formal training by the Defendant. On multiple occasions, the Claimant requested that the Defendant provide clarification or proof that the amount of AED 6,000 has indeed been incurred by the Defendant for the said training, however such clarification was not provided to the Claimant, nor has it been provided to the Court.

14. The Claimant further refutes the allegations made in support of the claimed compensation and therefore submits that this claim made by the Defendant is unjust. The Claimant alleges that it is her right to seek clarification from the Defendant on her end of service entitlements, and that she has been wrongfully accused of wrong and bad faith of claims.

Discussion

Jurisdiction

15. The DIFC Courts and the SCT have jurisdiction over this case as it relates to employment within the DIFC and the claim value in question is less than AED 500,000.

16. This dispute is governed by DIFC Law No. 2 of 2019 (the “DIFC Employment Law”) in conjunction with the relevant Employment Contract.

Findings

The main claim

17. At the Hearing and in review of the Court file, it is apparent that the Claimant’s claims for salary for January and February 2020, and the end of service gratuity are not disputed between the parties. I will first deal with setting out the latter entitlements, and thereafter, I will deal with the claim for vacation leave, public holidays and the Defendant’s Counterclaim.

18. As set out above, I am satisfied that the Claimant is entitled to her outstanding salary for January 2020 in the sum of AED 1,391.14 and her outstanding salary for February 2020 in the sum of AED 2,482.75.

19. I am also satisfied that the Claimant is entitled to her end of service gratuity. The Claimant worked for the period from 31 March 2018 to 24 February 2020 which amounts to 1 year, 10 months (21 days / 12 months = 1.75 for each month x 10 months = 17.5 days) and 25 days (1.75 / 30 = 0.06 for each day x 25 = 1.5 days).

20. The gratuity shall be calculated based on the employee’s basic wage in accordance with Article 66 of the DIFC Employment Law:

21. Therefore, I find that the Claimant is entitled to the sum of AED 1,972.70 as her end of service gratuity.

Vacation leave and public holidays

22. On 12 April 2020, the SCT Registry requested that the Claimant and Defendant provide further information and supporting documents in relation to the vacation leave days and public holidays. Subsequently, the Claimant and Defendant filed their submissions on 12 and 13 April 2020.

23. Pursuant to Article 5 of the Employment Contract, the Claimant is entitled to 24 days of annual leave per year upon completion of the first year. From the second year of employment, the Claimant is entitled to 31 days of annual leave per year.

24. The Claimant claims the sum of AED 2,284.66 for 24 days of accrued but untaken annual leave. The Defendant argues that the Claimant is not entitled to compensation for vacation leave days as she has taken all of her accrued days thus far (in total 44 days). The Defendant further provided a payment voucher signed by the Claimant stating that the Claimant has been paid an amount of AED 2,400 for 24 days of vacation leave days for the first year of employment.

25. The Defendant submitted a statement of account and WhatsApp messages which suggest that the Claimant has indeed accrued 44 days of leave during her employment. However, from the same statement of account and further submissions filed by the parties, it appears that the 44 days of leave were not considered annual leave days, however they were recorded as ‘leave/absent’ and subsequently deducted pro-rated from the Claimant’s monthly salary.

26. In light of the above, I am satisfied that the Claimant has not taken any of her annual leave days during her employment. However, it is not disputed by the parties that the Claimant has been paid for the 24 days of accrued but untaken vacation leave for her first year of employment in the amount of AED 2,400.

27. Now that this issue is dispensed of, the Claimant’s entitlement to compensation for her accrued but untaken annual leave days for her second year of employment is to be determined. The Claimant has worked for the Defendant for January and February 2020, and as set out above, her entitlement to annual leave days during the second year of her employment would be 31 calendar days. The Claimant’s employment over the second year lasted 10 months and 25 days, which amounts to 331 calendar days. 365 days per calendar year / 31 days = 331 days / X days of leave = X = 28 calendar days. In order to be consistent with the DIFC Employment Law, the Court has converted the Claimant’s entitlement to annual leave to apply to working days rather than calendar days, therefore the Claimant is entitled to 24 days leave. As the Claimant’s daily wage is AED 138.46, the Claimant is entitled to a payment of AED 3,369.74 as pro rata payment in lieu of her second year of employment for her accrued but untaken annual leave.

28. The Claimant also seeks payment for 14 days worked on public holidays in the sum of AED 1,938.44. The parties submitted written and oral evidence demonstrating that the Claimant had indeed worked during public holidays. The Defendant, however, relies on Article 3 of the Employment Contract (as stated in paragraph 11 of this judgment) and argues that the Claimant is not entitled to be paid compensation for the public holidays worked.

29. Article 31(1) of the DIFC Employment Law clarifies the position of entitlements in relation to public holidays, and provides the following:

“An Employee is entitled to leave on each Public Holiday that is announced in the UAE by the relevant Competent Authority for the public sector or the private sector, whichever is applicable to the Employee’s Employer, which falls on a Work Day.”

30. Article 32(3) of the DIFC Employment Law reads as follows:

31. It is evident to note that the rights and obligations of an employer and employee under the DIFC Employment law are minimum requirements and any waiver of such rights and obligations must be expressly permitted under the DIFC Employment Law. This is provided in Article 11(1) of the DIFC Employment Law which reads:

“The requirements of this Law are minimum requirements and a provision in an agreement to waive any of those requirements, except where expressly permitted under this Law, is void in all circumstances.”

32. In light of the above, I am satisfied that the Claimant has worked on 14 public holidays and that she is entitled to be paid compensation based on her daily wage in accordance with Article 32(2) of the DIFC Employment Law. The daily wage is calculated to be AED 138.46, as set out in paragraph 27 of this judgment, and therefore I find that the Claimant is entitled to the sum of AED 1,938.44 (AED 138.46 x 14 days).

The Counterclaim

33. The Defendant argues that the Claimant has been provided training during her employment and submits that, seeing as the Claimant has terminated her Employment Contract within 2 years of employment, the Defendant is entitled to AED 6,000 pursuant to Article 7 of the Employment Contract which states the following:

34. Article 20 of the DIFC Employment Law deals with deductions made or payments received by employers, which provides:

35. While the training costs may be considered as a deduction or payment pursuant to Article 20(c) of the DIFC Employment Law, and while both parties consented to this in writing (as found in Article 7 of the Employment Contract), I note that the Defendant has not provided any evidence to demonstrate that the Claimant has indeed received training during the course of her employment which allegedly cost AED 6,000.

36. The Defendant submitted an appendix dated 16 April 2019 which consists of several questions relating to the operation of the Defendant and includes answers submitted by the Claimant. The Defendant has further submitted a Whatsapp message between the Claimant and Defendant dated 2 March 2019, wherein the Claimant confirms that she had finished the training.

37. At the Hearing, the Claimant clarified that the said training was provided at the Defendant’s office by an internal employee as a refresher for all employees to be reminded of the daily operations of the company. The Claimant further submitted that during the course of her employment, she received a manual and observed a colleague to familiarise herself with her role within the company.

38. During the course of the Hearing, I asked the Defendant to clarify the nature of the training provided to the Claimant. The Defendant responded by confirming that the training received was on the Defendant’s machinery, for which it would be the Claimant’s responsibility to operate. I then asked the Defendant whether the Claimant would have been able to perform her daily tasks should she had not received such training, and it was confirmed that the training received was essential to the Claimant’s ability to carry out her role within the Defendant’s company. Therefore, I am of the view that such training cannot be claimed back from the Claimant, especially as it is necessary for any joiner to a role to receive an induction on all technical aspects of said role. In light of this, I dismiss the Defendant’s claim for its training costs.

39. In regards to the Defendant’s claim of AED 6,000 for compensation due to ‘wrong and bad faith of claims hardly affecting employer and company reputation’, I note that, based on the written submissions and the oral submissions presented at the Hearing, it is apparent that this claim relies on the allegation that the Claimant has shown a lack of respect towards the Defendant by allegedly making unreasonable, contradicting and false statements.

40. The Defendant submits that these statements pertain to the Claimant’s allegation that the Defendant is not claiming AED 6,000 for training costs, but that these costs are being claimed for the costs incurred for the Claimant’s visa. Moreover, the Defendant alleges that the Claimant remains wrongfully persistent in her statement that she has not received training from the Defendant. The Defendant also alleges that the Claimant has accused it for unlawful action when the Claimant sought clarification on her entitlements under the DIFC Employment Law.

41. In response, the Claimant refutes all allegations and asserts that she simply sought clarification from the Defendant on her entitlements upon receiving the Defendant’s confirmation that it would be deducting AED 6,000 from the Claimant’s entitlements. The Claimant has submitted various email exchanges between the parties which indicate that the Claimant was informed at first that these costs are being claimed for her visa costs, and this statement was later corrected by the Defendant. Consequently, the Claimant requested for evidence that the purported training has incurred an amount of AED 6,000 from the Defendant.

42. In the same email exchange, it appears that the Claimant requested for such clarification on various occasions and she insisted on receiving all of her entitlements based on the DIFC Employment Law free of any deductions that she deems unrightful. At no point in the emails is it suggested that the Claimant has accused the Defendant of unlawful action. Therefore, I am of the view that the Claimant has rightfully sought clarification on her entitlements and the intended deduction, and that there is no basis to provide the Defendant with the compensation sought.

Conclusion

43. In light of the aforementioned, I find that the Defendant shall pay the Claimant the sum of AED 11,154.77 being the total sum of the Claimant’s entitlements.

44. The Defendant’s Counterclaim is dismissed.

45. The Defendant shall cancel the Claimant’s visa.

46. The Defendant shall pay the Claimant the Court fee in the sum of AED 367.50.

Issued by:
Ayesha Bin Kalban
SCT Judge and Deputy Registrar
Date of issue: 28 April 2020
At: 3pm