The Industrial Tribunal explained that if an employment relationship is terminated prior to the commencement of work duties, then such termination cannot be considered to be unfair dismissal. This was decided by the Industrial Tribunal on 24 November 2025 in in the case of Jacki McCarthy vs Atlas Language Institute.
The applicant, McCarthy, contended that she had been unfairly dismissed from employment in breach of the Employment and Industrial Relations Act, Chapter 452 of the Laws of Malta since the employer advised her that her employment was being terminated before her commencement date. McCarthy had applied online for a teaching position and subsequently signed an employment contract on 19 June 2023, stipulating that her duties were to commence on the 21 August 2023. In the period leading up to the commencement date, the employer attempted to contact McCarthy on numerous occasions so that she can provide the necessary documents preceding the commencement of employment.
The applicant, however, failed to respond and never provided the documents and information requested of her. Evidence presented before the Industrial Tribunal confirmed that McCarthy did not maintain communication with the employer and never performed any duties. On 17 August 2023, having received no reply or communication from McCarthy, the respondent had no other option but to make alternative arrangements and find a substitute to cover the classes which originally had to be assigned to McCarthy. The respondents also informed McCarthy that due to not having received any communication from her in relation to her employment, they had no other choice but to withdraw the job offer and not proceed with her engagement.
The applicant argued the principle of pacta sunt servanda and claimed that the signed contract created the employment relationship, and insisted that the employment relationship does not commence on the commencement date indicated in the same employment contract. Accordingly, she claimed that the withdrawal of the offer amounted to unfair dismissal.
However, the employer maintained that the withdrawal occurred prior to the commencement of the employment relationship. The employer further argued that even if an employment relationship was deemed to have come into existence, the termination could not be deemed to be unfair. This is because the termination would have occurred during the probationary period, during which period, either party may terminate employment without providing a reason, in terms of Article 36(2) of Chapter 452 of the Laws of Malta. Nonetheless, the employer further maintained that it was the applicant who effectively abandoned the contract through her failure to communicate.
In its consideration, the Industrial Tribunal acknowledged that although a contract had been signed, the applicant was under an obligation to maintain communication with her prospective employer. It also took into account that the termination occurred at a time when the applicant had not yet commenced her duties and was not physically present in Malta. The Industrial Tribunal concluded that the termination took place during the probationary period and that, under Maltese law, the employer was not required to provide a justification for such termination.
Accordingly, the tribunal dismissed the applicant’s claim and confirmed that the employer had acted within its legal rights. Therefore, no unfair dismissal had occurred.
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