By Dr. Rebecca Mercieca – Senior Associate
“Unfair dismissal” is defined by the Employment and Industrial Relations Act as the dismissal by the employer of employees, who are no longer within their probationary employment period, and, which dismissal is not made solely on the grounds of redundancy or which lacks good and sufficient cause.
Unfair dismissal further extends to dismissal of an employee which, though made on grounds of redundancy or for a good and sufficient cause, is discriminatory[1] or which is based on an act done by an employee in contemplation or furtherance of a trade dispute and in pursuance of a directive issued by a trade union.
A “good and sufficient cause” for dismissal in Malta is not strictly defined in the law, however amongst those not considered to be good and sufficient causes for dismissal are maternity, paternity, parental, carers’ leave, time off from work on the grounds of force majeure, exercising the right to request flexible working arrangements (for parents and carers of children under the age of 8)[2] and contracting marriage, indeed such ‘reasons’ are considered to be discriminatory.
The competence of the Industrial Tribunal in such cases of dismissal extends to both those employees engaged on indefinite time contracts as well as those employees employed on a definite time contracts.[3]
In cases of unfair dismissal, if there is no specific request for reinstatement or re-engagement or the Tribunal decides not to make an order for reinstatement or re-engagement as aforesaid, the Tribunal shall make an award of compensation, to be paid by the employer to the dismissed employee (the complainant), in respect of the dismissal.
In determining the amount of such compensation, the Tribunal takes into consideration the real damages and losses incurred by the worker who was unjustly dismissed, as well as other circumstances, including the worker’s age and skills which may affect the employment potential of the said worker. Other facts the Industrial Tribunal tends to consider are the period that the complainant remained unemployed for following an unjust dismissal; the length of the employment relationship between the employee and employer; and any reduction in earnings on new employment.
The key to avoid litigation in employment disputes is communication. That said, communication is most productive prior to the dismissal of an employee and when held in an environment seeking to fruitfully resolve the issues in dispute, other than looking for an excuse for the termination of an employee’s contract or creating unrealistic deadlines for the employee to work on the highlighted issues, thus purposely setting the employee up to fail.
Where it is alleged that a worker has been unfairly dismissed by an employer, or where there is an alleged breach of any obligation arising out of any matter falling within the jurisdiction of the Industrial Tribunal, the cause shall be referred to the Tribunal by means of a declaration stating the facts of the case, presented in the Registry of the Tribunal and shall, in all cases, be so presented by not later than four (4) months from the effective date of the alleged breach.
If the parties do end up in litigation, it is the employer who is to prove that the employee was dismissed on just grounds, and not the employee who is burdened with proving that there was no just cause for the dismissal.
[1] Discrimination includes discrimination made on the basis of marital status, pregnancy or potential pregnancy, sex, colour, disability, religious conviction, political opinion or membership in a trade union or in an employers’ association
[2] Article 14 of S.L. 452.125 of the laws of Malta introduced in August 2022
[3] ACT No. LVIII of 2020 of 11th December 2020