An employer may dismiss an employee on the spot but this is permitted in limited cases. This was decided by the Court of Appeal presided by Mr Justice Anthony Ellul on 11 February 2019 in Marco Pisani v the AV Warehouse.
Pisani filed an application before the Industrial Tribunal after he claimed that he was unjustly dismissed from his employment and was not given a warning. The Company replied that the termination was justified. The Industrial Tribunal decided the case in the company’s favour. Pisani lodged an appeal in that there was no evidence against him and that a particular incident was not his fault and also, it was the company that failed to give health and safety equipment.
The Court of Appeal quoted from Art 82(3) of the Employment and Industrial Relations Act, which allows dismissal only for a just cause which will be decided by the Industrial Tribunal and a right of appeal on a point of law.
The Court also quoted from previous judgements such as Eileen Leone Ganado v Link School of Languages Ltd decided on 28 April 2017 which held that the Court will have to decide whether the conduct of the employee was negative and if it was negative it should have led to dismissal. In Nathania Mifsud v Sterling Jewellers, decided on 12 December 2016 held that the Court has the competency to examine the evidence to see whether the Industrial Tribunal followed the principals of law.
In this case the Tribunal considered the two versions and believed more the employer’s version of events.
The employee was asked to improve his performance on numerous occasions. The last straw was when he was navigating a fork lifter where items had fallen off and were damaged. The Tribunal held this was sufficient for Pisani to be dismissed.
Mr Justice Ellul dealt with the grounds of appeal, mainly that the Tribunal did not have sufficient evidence to arrive to its decision. The Court delved into the evidence produced, which included the company’s employees. The company’s project manager testified that Pisani was negligent and had once even left work and returned after a year. He remained negligent, he also started work late, forgot things behind him and damaged the company’s equipment. Due to all this Pisani was given a number of warnings. This was echoed by the director of the company, the administrative secretary and a fellow employee.
Pisani testified that he was employed as a rigger but did a bit of everything. He denied he was negligent at work and it was others who forgot things when they went on a job. He quoted a case when he had to return to Gozo, because his director had forgotten something. He also denied that he received any warnings be they written or verbal. With regard to the last incident, he explained that there were boxes on the lift. Another employee Kyle Saliba was on the floor above him. When he placed the boxes safely, he informed Saliba that he was going to the toilet. Then he heard a crashing noise.
The Court concluded that it was true that Pisani received warnings, but no details were given. However, this does not mean that he was responsible for the accident. The responsibility of that accident had to be established in a proper manner. Pisani was summarily dismissed, since the Director of the company assumed that once Pisani was navigating the fork lifter, then he was responsible for the damage caused. Neither the director nor the manager were present during the accident. Kyle Saliba was the only other employee present at the time. Saliba failed to turn up to testify. Pisani was not given the opportunity to explain himself. The Court also looked at the photos of the fork lifter and noted that it was not in line with health and safety regulations. The Court of Appeals was of the opinion that it was up to the company to prove how the boxes fell, which it failed to do. The fact, that Pisani was negligent on previous occasions does not mean that he was negligent on the last incident.
Mr Justice Ellul overturned the Tribunal’s decision by declaring that the termination of employment was unjustified and awarded Pisani €5,000.
Av. Malcolm Mifsud
Mifsud & Mifsud Advocates
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