An appeal from an Industrial Tribunal decision must be filed within 12 days and the law does provide for any extensions. This was held in Giulia Gattuccio -v- Suda Entertainment Limited a judgement delivered on 12 January 2022 by the Court of Appeal presided by Mr Justice Lawrence Mintoff.
Suda Entertainment Limited, the Appellant appeals from a decision delivered by the Industrial Tribunal. The case concerns the dismissal of a waitress who was employed full time. The employer claimed that Cattuccio resigned and did not report for work, however she claimed that she did not resign but was asked not to come back to work. Cattuccio explained that in July 2018, there was an incident at work where she was instructed to present a cake to guests. Since she noticed that the cake spent some time outside the fridge, she refused to do so. The Manager called her in her office and said hat she could return to work only after she apologised in front of the other members of the staff. She was not paid for everything that was due.
The Court examined the evidenced produced such as the owner’s testimony who was informed by the manager that Cattuccio was that an employee was threatening that she would not attend work. He instructed management to prepare the termination documents. The Manager gave her version of the events. She explained Cattuccio refused to assist a fellow waiter. The following Monday she had a word with Cattuccio, and discussed the cake incident but also other incidents. The manager had given Cattuccio warnings previously to this occasion. In the meeting Cattuccio said that she would not work together with the other waiter and did not go to work anymore.
This other waiter testified that previously he was friends with Cattuccio, but had argued at work. With regard to the incident on the cake, he said that the cake was in a good condition, but Cattuccio insisted that she should not serve it and would not assist him. He claimed that Cattuccio’s partner had contacted him and felt threatened after he testified.
Cattuccio testified and kept to her version by insisting she had informed her manager that the cake was not good to serve, and she did not feel that it would be correct to serve this cake and therefore, refused to serve it herself. The manager asked her to leave work and return on the following Monday. In that meeting she insisted that if she wanted to continue to work at the establishment then she was to apologise for her behaviour in front of her colleagues.
The Industrial Tribunal in its decision pointed out that the employer had no inkling on what a disciplinary process is. Top management were unable to explain what the procedure was. The evidence showed that Cattuccio was a diligent worker who was unjustly dismissed. This consisted in a lack of professionalism. The employer wanted to humiliate their employee. The Tribunal awarded damages of €5064.21.
The company appealed the judgement arguing that the Tribunal did not properly analyse the facts of the case and did not take into consideration the manager’s version and that of the other employee, who had an disagreement with Cattuccio.
Cattuccio replied to the appeal by stating that in terms of Article 82(3) of the Employment and Industrial Act the appeal should have been lodged within 12 days from the Tribunal’s decision and this was in fact filed 15 days later. Furthermore, the appeal should not be on how the Tribunal analysed the evidence, but on a point of law. Furthermore, Cattuccio disagreed on how the company was interpreting the merits of the appeal.
The Court of Appeal in its judgement handled first the issue whether the appeal was filed on time. The Court quoted from Abdelaziz Dhaidi -v- Bortex Clothing Industry Company Limited decided on 23 October 2009. Then the court held that an unjust dismissal case under the Employment and Industrial Relations Act, an appeal must be filed within 12 days from the decision. This time period cannot be extended or suspended nor interrupted. The exception may only be found in the law such as in Article 109 of the Code of Organisation and Civil Procedure when the last day happens to be a public holiday, allowing an extension to the next workday.
In Joseph Camilleri -v- Kummissarju tat-Taxxi Interni decided on 9 May 2007, the Court held that if the time period set to appeal is not kept is “fatal” and therefore, the appeal cannot be accepted.
The Court of Appeal moved to dismiss the appeal on this ground.
Av Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates
The article is available on MaltaToday
For more information you can contact one of our Team Members at Mifsud & Mifsud Advocates.
