Unfair Dismissal – The Maltese Position

2020-08-07T13:31:14+02:00August 7th, 2020|Publications|

When it comes to the termination of an employment contract of an indefinite nature, it is granted a high level of protection under Maltese employment law, specifically the Employment and Industrial Relations Act. An employment contract of an indefinite nature, meaning that the duration of the contract is not defined and shall continue to operate until it is terminated either voluntarily by the employee or by the employer. However, the employer may only terminate such contract either in the case of redundancy, death,  retirement  or for a “good and sufficient” cause.

Maltese law does not specifically define the meaning of “good and sufficient cause”. However, the following are not considered to be  “good and sufficient” causes :

  1. Being a member of a trade union.
  2. No longer having the confidence of the employer, (except in the case of a private domestic employee).
  3. Contracting marriage.
  4. Maternity.
  5. Disclosing information to a public regulating body regarding alleged illegal or corrupt activities being committed by his employer.[1]

Even if the reason for dismissal is neither of the above mentioned, the aggrieved employee may still institute proceedings within four months from dismissal in front of the Industrial Tribunal. The Tribunal will then evaluate and determine the circumstances of the case in order to reach the conclusion on whether such dismissal was justified with good and sufficient cause. It is important to note that when proving that the dismissal was justly ordered, the onus probandi lies on the employer.

If the Tribunal reaches the conclusion that employment has been terminated without a good and sufficient cause, the employee may seek redress by either reinstatement, re-engagement, or compensation. Reinstatement refers to the situation where the employee returns to his former position as if the dismissal never occurred. On the other hand, re-engagement requires the employer to employ the aggrieved party who had initially been dismissed under a new contract. If no specific request is made for the employee to be reinstated, the Tribunal shall make an award of compensation, which is to be paid by the employer.

Maltese courts have consistently given importance to the principle of proportionality when it comes to determining if a dismissal was unjust. The dismissal must be a proportionate sanction in relation to the action giving rise to the dismissal in order to be deemed as just. This was upheld in the case of Publius Davison vs De La Rue Currency and Security Print Limited (Court of Appeal, inferior jurisdiction, 27/04/2016) where the Court held that the appellant’s dismissal was not ordered on the basis of a good and sufficient cause. The appellant was a security guard who was dismissed after taking into his possession a packet of glue from his workplace without authorization. However, the court held that being dismissed from his employment was not a proportionate sanction for taking the glue. Consequently, the employee was awarded €90,374.43 in compensation.

When awarding compensation, the Tribunal takes into consideration the real damages and losses incurred by the employee who was unfairly dismissed,  as well as other circumstances, such as the employee’s age and level of skill.

 

[1] Article 36(14) Employment and Industrial Relations Act.

Article by Chantal Chetcuti

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