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Employment Law

Unfair dismissal must be decided on basis of legal requisites, not arbitrary criteria

By June 19, 2021September 11th, 2023No Comments

When determining whether the dismissal from employment is a fair one or otherwise, the Industrial Tribunal is obliged to verify whether the requisites and procedures outlined by the Maltese law were correctly applied by the employer. This was decided by the Court of Appeal (Inferior Jurisdiction) in the names ‘Philippe Guillaut vs HOSI Malta Limited’ on the 1st June 2022 presided by Honourable Justice Lawrence Mintoff.

Mr Guillaut was dismissed from employment in virtue of a termination letter which did not indicate any reason for termination. During his testimony before the Industrial Tribunal, the Chief Executive Officer of the Company at the time of the employee’s dismissal, explained that the dismissal took place due to restructuring within the company, which was facing financial difficulties at the time.

The Court of Appeal overturned the decision of the Industrial Tribunal, which decided that despite not being provided with the reason for termination in the termination letter, the dismissal from employment of the employee was a fair one. Although the Industrial Tribunal itself acknowledged that the Company was insensitive in the way in which it dismissed its employee, it failed to refer to any evidence which proves that the requisites established by law were observed. The Industrial Tribunal is obliged to determine whether the process carried out by the defendant company was a legal one, meaning, whether it strictly observed what is provided by the law or otherwise.

The Court of Appeal confirmed the plaintiff’s argument that if the employee was in fact dismissed on grounds of redundancy, then the Industrial Tribunal had to determine what type of redundancy took place, that is whether it was an individual or a collective redundancy. Only then would the Industrial Tribunal have been able to apply the correct legislation in relation to the specific type of redundancy. In fact, the Court of Appeal confirmed that no proof was brought forward by the defendant company to prove that other employees were terminated at the same time or for the reasons provided by the CEO. In order to declare the dismissal as a fair one, the Industrial Tribunal had to be convinced that the employee’s representative was informed about the collective redundancies, that he received the details as required by the law and that the Director for Industrial and Employment Relations was informed about and involved in the process of collective dismissal by the defendant company, to ensure that no employee was terminated without a reason.

Apart from the fact that this exercise was clearly not carried out by the Industrial Tribunal, the Court of Appeal also observed that the defendant company did not bring forward any proof of the difficulties which it alleged to have suffered in 2018, or that it witnessed a decrease in the offshore and onshore demand, leading to a decrease in demand for the use of helicopters operated by the employee. Furthermore, no evidence of the restructuring programme allegedly implemented by the defendant company or of the financial crisis which impacted it, were brought forward. Likewise, there was no proof of the number of employees which allegedly were to be made redundant.

The Court of Appeal confirmed that even if the redundancy in question was deemed to be individual redundancy, then the Industrial Tribunal was obliged to ensure that the defendant company observed the requisites of Article 36(4) of Cap 452 of the Laws of Malta, which lays down the Last In First Out principle. This means that the last person to join the company is the first to be made redundant. This means that the Industrial Tribunal is to evaluate whether the person assuming the role of the employee being made redundant, was employed with the company before the said employee or otherwise.

In this case, the Industrial Tribunal completely ignored this legal requisite and instead decided that the plaintiff was fairly dismissed as the person assuming the plaintiff’s role was more competent and occupied a better grade than him, without have any concrete proof of this. Conversely, when analysing the termination letter provided by the Company to the plaintiff, the Court of Appeal was under the impression that the employee taking over the plaintiff’s employment was engaged to replace the plaintiff and not that he was assuming the plaintiff’s role in addition to duties already carried out by him.

Av Malcolm Mifsud


Mifsud & Mifsud Advocates

The article is available on MaltaToday

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