Musaab Tag Elsir Abdelsalam v Expresso Telecom Group Ltd [2019] DIFC CFI 015 (05 September 2021)

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Cite as: [2019] DIFC CFI 015

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Musaab Tag Elsir Abdelsalam v Expresso Telecom Group Ltd [2019] DIFC CFI 015

September 05, 2021 court of first instance - Judgments

Claim No: CFI 015/2019

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

MUSAAB TAG ELSIR ABDELSALAM

Claimant/Respondent

and

EXPRESSO TELECOM GROUP LTD

Defendant/Applicant


AMENDED JUDGMENT OF H.E. JUSTICE ALI Al MADHANI


UPONthe Claimant’s claim form dated 20 March 2019 (the“Claim”)

AND UPONthe Claimant’s particulars of claim dated 5 May 2019

AND UPONthe Claimant’s amended particulars of claim dated 16 June 2020

AND UPONthe Defendant’s Application No. CFI-015-2019/3 dated 8 October 2020 for immediate judgment against the Claim (the“Immediate Judgment Application”)

AND UPONhearing counsel for the Defendant and the Claimant at the hearing of the Immediate Judgment Application on 27 January 2021

AND UPONreviewing the relevant documents on the Court’s file

IT IS HEREBY ORDERED THAT:

1. The Immediate Judgment Application is granted.

2. Judgment is entered against the Claimant and the Claim is dismissed.

3. The Claimant shall pay the Defendant its costs of the Immediate Judgment Application, on the standard basis, to be assessed by the Registrar if not agreed.

4. The Claimant is granted permission to appeal this judgment if so advised.

Issued by:
Nour Hineidi
Registrar
Date of issue: 29 August 2021
Date of re-issue: 5 September 2021
Time: 3pm

JUDGMENT

Introduction

1. There is a general presumption that tomorrow’s law will not govern yesterday’s or today’s activities, or in other words that changes in the law do not take effect retrospectively. Willes J explained the policy underpinning this principle inPhillips v Eyre(1870) LR 6 QB 1 at 23: retrospective legislation is “contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought, when introduced for the first time, to deal with future acts, and ought not to change the character of past transactions carried on upon the faith of the then existing law”. Notwithstanding this principle, there is no doubt that a legislator may introduce laws which alter rights and obligations in relation to events which have already taken place. The question is always whether, contrary to the presumption against retrospectivity, the law in fact has that effect.

2. By these proceedings issued on 20 March 2019, the Claimant, Musaab Tag Elsir Abselsalam (“Mr Abdelsalam”), sues the Defendant company, Expresso Telecom Group Ltd (“Expresso”), under three fixed-term employment contracts effective between 1 November 2008 and 31 August 2010 (the“First Contract”), 1 August 2010 and 31 July 2012 (the“Second Contract”) and 1 August 2021 and 31 July 2014 (the“Third Contract”and collectively the“Contracts”). In brief, Mr Abdelsalam asserts that he is owed unpaid salary, compensation in lieu of untaken holiday, relocation allowances, airline ticket entitlements and end of service gratuities variously under one, some or all of the Contracts. For present purposes, the contractual periods rather than any rights or obligations the Contracts may give rise to are of primary importance. It should be noted also that while Mr Abdelsalam’s claim is an employment law claim, he also claims under DIFC Law No. 7 of 2005, being the Law of Damages and Remedies, for “damages and compensation arising out of all of the aforementioned breaches of contractual obligations as per laws of contract”. According to my understanding of Mr Abdelsalam’s claim, his claims under the Law of Damages and Remedies are dependent on his claims under employment law such that if the latter fall, the former will fall with it.

3. By its application issued on 8 October 2020, Expresso applies, for the second time, for immediate judgment against Mr Abdelsalam (the“Immediate Judgment Application”). The first application was made on the primary basis that, in his first particulars of claim dated 5 May 2019 (the“POC”), Mr Abdelsalam relied on a draft rather than in-force DIFC employment law (the“First Immediate Judgment Application”). Mr Abdelsalam immediately acknowledged his error and, upon application, was given permission to amend the POC by my order made on 10 March 2020. The First Immediate Judgment Application was dismissed by the same order.

4. The second immediate judgment application, being the Immediate Judgment Application, is made on the primary basis that, in his amended particulars of claim dated 16 June 2020 (the“APOC”), Mr Abdelsalam relies on the DIFC employment law which came into force on 28 August 2019, DIFC Law No. 2 of 2019 (since amended by DIFC Law No. 4 of 2020) (the“Current Employment Law”), rather than the DIFC employment law in force during the currency of the Contracts and at the time of their respective expiries, DIFC Law No. 4 of 2005 as amended by DIFC Law No. 3 of 2012 (the“Previous Employment Law”). It is Expresso’s case that Mr Abdelsalam was required to rely on the Previous Employment Law as the Current Employment Law does not have retrospective effect.

5. Mr Abdelsalam’s primary case, however, is that the Current Employment Law does in fact apply retrospectively. He relies primarily on Article 1 of the Current Employment Law which concerns the Previous Employment Law’s replacement and repeal. The Immediate Judgment Application provides the Court with the opportunity to consider whether, properly construed, the Current Employment Law applies retrospectively or not. While the question of which of these two laws governs a particular dispute has arisen in various proceedings, so far as I am aware it has not been the subject of parties’ argument nor detailed judicial consideration; it appears that since the Current Employment Law’s enactment, either that law or the Previous Employment Law has been relied on or applied in proceedings in accordance with the presumption against retrospectivity and without any controversy.

6. After deciding whether or not the Current Employment Law has retrospective effect, further issues will necessarily arise. For example, if I conclude that the Current Employment Law does not have retrospective effect, the APOC will, like the POC, be devoid of the law relevant to Mr Abdelsalam and Expresso’s dispute, and Mr Abdelsalam’s request to amend his POC again will need to be considered, along with the considerations ancillary to this request, including whether the proposed amendments have a real prospect of success (Orion Holdings Overseas Ltd v Al Haj and orsCFI-033-2015 (8 February 2018) at [22]). On the other hand, if I conclude that the Current Employment Law does apply retrospectively, the scope of the limitation period applicable to claims under the Current Employment Law as well as the procedural background of this case will need to be examined in order to determine whether Mr Abdelsalam’s claim is made out of time. I will deal with these further issues after deciding the question of the applicable law to this claim.

The Current Employment Law

Is the Current Employment Law of retrospective effect?

The parties’ arguments

7. Expresso contends that the Current Employment Law does not have retrospective effect. No arguments were advanced in support of this proposition. Expresso submits, moreover, that “It is stated in the law itself that it is prospective in nature”. No reference is given for this assertion.

8. While Mr Abdelsalam does not go into much detail himself, he relies on Article 1 of the Current Employment Law, and in particular paragraphs (1) and (2), for his proposition that the Current Employment Law applies retrospectively. Article 1 of the Current Employment Law provides as follows:

Title and repeal

(1) This Employment Law 2019, repeals and replaces the Employment Law 2005 (DIFC Law No. 4 of 2005), as it was in force immediately prior to the commencement of this Law (the “Previous Law”), and may be cited as the “Employment Law 2019” or “this Law”.

(2) Except where otherwise provided in this Law, anything done or omitted to be done pursuant to or for the purposes of the Previous Law is deemed to be done or omitted to be done pursuant to or for the purposes of this Law.

(3) Without limiting the generality of Article 1(2), and subject only to Articles 1(4), 1(5), 10 and 61(2), the repeal and replacement under Article 1(1) shall not affect:

(a) any right, remedy, debt or obligation accrued to or incurred by any person; or

(b) any legal proceeding commenced, or to be commenced, in respect of any such right, remedy, debt or obligation,

under the Previous Law, and any such legal proceeding must be instituted, continued or enforced, including any penalty, fine or forfeiture, under this Law without prejudice to any right, remedy, debt or obligation which has accrued or incurred prior to the commencement of this Law.

(4) Where there is no equivalent provision in this Law to a provision in the Previous Law, the relevant provision in the Previous Law is deemed to survive the repeal and replacement under Article 1(1), until such time as necessary for the purposes of any legal proceeding specified in Article 1(3)(b). The fact that a provision in this Law reduces or extinguishes rights in the Previous Law does not prevent it from being an equivalent provision.

(5) For the purposes of Article 1(3), a claim in respect of any part of a penalty due pursuant to Article 19(2) which would otherwise be excluded by Article 19(4) may be brought prior to the commencement of this Law.

Discussion

9. With the greatest respect to the draftsman of Article 1 of the Current Employment Law, in my opinion this provision is not very easy to follow. The meanings of some of its clauses have escaped me, a fortiori their intended consequences. This is particularly unfortunate in the context of employment law in the DIFC as many, or dare I say nearly all, claimants in disputes governed by this law are lay litigants in person. Perhaps this goes some way to explaining the rather remarkable fact that in the more than 60 decisions which the DIFC Courts has handed down and published since the Current Employment Law came into force on 28 August 2019 where DIFC employment law was applied or at least considered in some way, there is no evidence that Article 1 of the law has been invoked or the subject of analysis in any proceedings before these.

10. To give an example of Article 1’s complexity, Article 1(3) provides that:

… the repeal and replacement under Article 1(1) shall not affect:

(a) any right, remedy, debt or obligation accrued to or incurred by any person; or

(b) any legal proceeding commenced, or to be commenced, in respect of any such right, remedy, debt or obligation,

under the Previous Law, and any such legal proceeding must be instituted, continued or enforced… under this Law… (Emphasis added)

In my judgment, unless the Previous Employment Law and the Current Employment Law are identical, the former’s repeal and replacement would necessarily affect rights, remedies, debts or obligations accrued to or incurred by any person under that law, likewise proceedings commenced or to be commenced in respect of them. And inasmuch as the two laws are not identical, in my view Article 1(3) until and including the words “under the Previous Law” suggests that the Current Employment Law does not have retrospective effect. But after those words there is a contrary, and indeed stronger, suggestion that the Current Employment Law does in fact have retrospective effect: “…any such legal proceedings must be instituted, continued or enforced under [the Current Employment] Law”. This second suggestion is undermined, however, by the word “and” at the juncture of these two parts, italicised above, which suggests that the ensuing words in the second part compliment or merely expand upon the preceding words in the first part, unlike a word like “but” which would indicate a limitation to or qualification of the first part.

11. In my judgment, if there was any anticipation that application of the Current Employment Law to any right, remedy, debt or obligation accrued to or incurred by any person under the Previous Employment Law could affect such a right, remedy, debt or obligation, the word “but” would have been more appropriate than “and” in this position. And it seems clear from Article 1(4), for example, that it was even anticipated that application of the Current Employment Law could “extinguish” a right under the Previous Employment Law which is, needless to say, a type of affect.

12. To compound the complexity, this provision concludes by stating that the application of the Current Employment Law to any right, remedy, debt or obligation accrued to or incurred by any person prior to its commencement shall be “without prejudice” to such a right, remedy, debt or obligation. By virtue of the fact that Article 1(3) has already stated that “the repeal and replacement… shall not affect… any right, remedy, debt or obligation accrued to or incurred by any person under the Previous [Employment] Law”, presumably another type of prejudice is being referred to here in the concluding part of Article 1(3), but it is not identified.

13. With these preliminary observations made, I turn to construing Article 1 of the Current Employment Law. In my judgment, the following rules relevant to the question of whether the Current Employment Law is of retrospective effect can be extracted from Article 1:

i) The Current Employment Law repeals and replaces the Previous Employment Law (Article 1(1)). This of course does not answer the question whether the Current Employment Law has retrospective effect.

ii) Inasmuch as, except where provided otherwise in the Current Employment Law, anything done or omitted to be done pursuant to or for the purposes of the Previous Employment Law is deemed to be done or omitted to be done pursuant to or for the purposes of the Current Employment Law, in my view, acts or omissions which would have, but for the Current Employment Law, been governed by the Previous Employment Law are, as it were, “transferred” to the Current Employment Law’s governance (Article 1(2)).

iii) There are two scenarios which might ensue following this “transfer”: either (1) the Current Employment Law will be found to have an “equivalent provision” to one which confers a right, remedy, debt and/or obligation under the Previous Employment Law or (2) the Current Employment Law will be found to have no such “equivalent provision”. Where there is an “equivalent provision”, any proceedings must be instituted or continued under that “equivalent provision” (Article 1(3)). Where there is no “equivalent provision”, the relevant provision in the Previous Employment Law is deemed in a case to survive the repeal and replacement of the Previous Employment Law for the purpose of those proceedings only (Article 1(4)). The effect of these alternative avenues seems to be that no right, remedy, debt or obligation accrued or incurred under the Previous Employment Law is “prejudiced” (Article 1(3)) in the sense, I think, of “extinguished” through the mere “transfer” from the Previous Employment Law’s governance to the Current Employment Law’s governance. If such a right, remedy, debt or obligation is extinguished or reduced, it must be so by operation of an “equivalent provision” in the Current Employment Law, not the absence of an “equivalent provision”.

iv) “Equivalent provision” is not defined in the Current Employment Law, but it is provided by Article 1(4) that: “The fact that a provision in this Law reduces or extinguishes rights in the Previous Law does not prevent it from being an equivalent provision”. In my view, in accordance with Article 1(4), in determining whether the Current Employment Law provides an “equivalent provision” to one in the Previous Employment Law, the consequences of the provisions being compared will probably not be determinative. Presumably, the provisions’ subject matter or object will instead be central to analysis.

v) While a right, remedy or obligation under the Previous Employment Law will, in either of the two scenarios described above, survive the Article 1(2) “transfer”, any Article 1(3) proceedings are subject to Articles 1(5) (which concerns the penalty for late payment of an employee’s entitlements post-termination), 10 and 61(2) (which concerns discrimination and victimisation) of the Current Employment Law, along with Article 1(4) thereof discussed above. For present purposes, Article 10 is of particular significance. It provides that: “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”.

14. Based on the forgoing, in my view, the Current Employment Law is in fact of retrospective effect. The only circumstance in which the Previous Employment Law may be said to survive its replacement in some way is where, for the purpose of particular proceedings, the Court deems that a particular provision survives in order to preserve a right, remedy, debt or obligation that would have existed, but for the Current Employment Law, by operation of the Previous Employment Law and which the Current Employment Law does not itself deal with by means of an “equivalent provision”. In other words, the Previous Employment Law will only ever supplement the Current Employment Law by legal construct of the Court to the extent required, while the latter legislation is the only extant DIFC employment law properly so called.

15. It follows from this conclusion that Mr Abdelsalam was correct to rely on the Current Employment Law in the APOC. And it follows from this, in turn, that Expresso’s primary case in the Immediate Judgment Application must be dismissed.

Is Mr Abdelsalam’s claim time barred?

The parties’ arguments

16. The Previous Employment Law did not provide for a limitation period particular to claims made under that law, and so the limitation period of Article 38 of DIFC Law No. 10 of 2004, the DIFC Court Law, ending 6 years after the date of the cause of action, applied. As stated above, the Current Employment Law does make provision for a limitation period. Generally, the Court will not consider a claim under the Current Employment Law “unless it is brought to the Court within six (6) months of the relevant Employee's Termination Date”. It is uncontroversial that Mr Abdelsalam did not bring a claim within 6 months of termination any of the Contracts.

17. It is Expresso’s alternative case that, if the Court finds that the Current Employment Law applies retrospectively to this dispute, the Court should go on to find that Mr Abdelsalam’s claim is time barred by operation of Article 10 of the Current Employment Law. Expresso also brings to the Court’s attention the definition of “Termination Date” where the employment contract is a fixed-term contract, as here, in Schedule 1 to the Current Employment Law at [3]: “in relation to an Employment Contract concluded for a fixed term, the date on which the term expires”. Expresso submits that the limitation period for the First Contract expired on 28 February 2011, for the Second Contract on 31 January 2013 and for the Third Contract on 31 January 2015. Mr Abdelsalam’s claim was filed on 20 March 2019. It follows, Expresso submits, that Mr Abdelsalam’s claim is time barred and therefore has no prospect of success.

18. Mr Abdelsalam submits that he has been:

“pursuing [Expresso] continuously regarding his labour rights from termination until commencing legal proceedings against [Expresso] on 22 March 2018 by sending a Legal Notice through Dubai Notary Public, which [Expresso] responded to and promised to provide its feedback. When [Expresso] did not honour its promise to provide its feedback, [Mr Abdelsalam] filed his claim in front of the DIFC Courts on 20 March 2019.”

19. Mr Abdelsalam also avers that Article 10 of the Current Employment Law only concerns new claims yet to be brought to the Court rather than claims filed before the Current Employment Law came into force (which strikes me as being two separate arguments). The limitation period of Article 38 of the DIFC Court Law on the other hand “reflects that the Legal Notice sent by [Mr Abdelsalam] to [Expresso] on 22 March 2018 is a commencement of legal proceedings”.

Discussion

20. Article 10 of the Current Employment Law provides, again, as follows:

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.

Regrettably, I think that Mr Abdelsalam’s constructions of Article 10 are unsustainable.

21. In my view, nothing turns on the fact that Mr Abdelsalam may have pursued Expresso continuously regarding his rights under the Previous Employment Law. Article 10 of the Current Employment Law is concerned with the timings of two events only: the employee’s termination and the filing of the relevant claim in the Court. I do not think that Article 10 confers on the Court any power to deem any pre-litigation steps taken as amounting to bringing a claim to the Court.

22. As to Mr Abdelsalam’s argument that Article 10 does not concern claims already brought to the Court, this proposition is flawed as the Court can only decline considering a claim under Article 10 if it has been filed; if a prospective claim has not been filed, then Article 10 cannot be engaged. It follows, in my judgment, that unless Article 10 applies to claims already filed, it serves no purpose at all.

23. Finally, in respect of Mr Abdelsalam’s proposition that Article 10 does not apply to claims filed before the Current Employment Law came into force, unfortunately this proposition appears to be contrary to Article 1 of the Current Employment Law. Article 1(3)—which Mr Abdelsalam has argued, and the Court has accepted, makes this legislation of retrospective effect—is “subject… to [Article]… 10…”. In other words, any legal proceedings commenced or to be commenced in respect of any right, remedy, debt or obligation accrued to or incurred by any person under the Previous Law are subject to the limitation period provided for by Article 10 of the Current Law. It follows, in my judgment, that Article 10 necessarily applies to cases filed prior to commencement of the Current Employment Law, like the present one.

24. Mr Abdelsalam’s claim was issued more than five years after his employment under the most recent of the Contracts, the Third Contract, terminated. For the First Contract and the Second Contract, the claim was issued more than eight years and more than six years after his termination, respectively. It follows, therefore, that Mr Abdelsalam’s claim is time barred.

Conclusion

25. For the reasons given above, in my judgment Mr Abdelsalam’s claim is time barred pursuant to Article 10 of the Current Employment Law and he therefore has no real prospect of succeeding on the claim. Accordingly, I give immediate judgment against Mr Abdelsalam on the whole of the claim.

Costs

26. Pursuant to RDC r. 38.7(1), the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party. Expresso it the successfully party and Mr Abdelsalam is therefore ordered to pay its costs of the Immediate Judgment Application, on the standard basis, to be assessed by a registrar if not agreed.

Permission to appeal

27. In my view, the limitation period of Article 10, as I have interpreted and applied it, in accordance with my construction of Article 1, is very harsh. It would apparently debar a claimant from continuing a claim originally made under the Previous Employment Law but “transferred” to governance by the Current Employment Law, notwithstanding that it was, say: filed well in advance of the expiration of the limitation period of Article 38 of the DIFC Court Law, but more than six months after the claimant-employee’s termination; had considerable merit and was for a considerable amount; and was filed at a time when the claimant could not possibly have anticipated enactment of Article 10 of the Current Employment Law nor the legislation’s retrospectivity pursuant to Article 1. Moreover, my decision in this case could impact proceedings currently on foot or not-yet-commenced.

28. For these reasons, I grant Mr Abdelsalam permission to appeal this judgment on the basis that there is a compelling reason why an appeal should be heard. The parties should not understand from this grant of permission to appeal that I think Mr Abdelsalam would have a real prospect of success in an appeal—I do not speculate about what such an appeal, if made, might consist of.

29. Rather, it is based on my belief that it would be in the interests of justice for Articles 1 and 10 of the Current Employment Law to be properly construed. While the parties’ lawyers have taken the Court to these provisions, with the greatest respect to them and due appreciation for their contributions, the arguments they have formulated and advanced on these questions have been surprisingly incomplete. In some instances, the parties’ representatives have not even attempted to substantiate a proposition made, notwithstanding that the Court’s decision on the underlying issue could conceivably result in their client’s ultimate success or failure in these proceedings. Moreover, despite having attempted to construe Articles 1 and 10 of the Current Employment Law, the meanings of some parts of Article 1 have evaded me. In such circumstances, reconsideration of Article 1, if the parties are advised to appeal this decision, that would, in my view, be a good thing.


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