Unfair Dismissal is defined by the Employment and Industrial Relations Act[1] as the termination of employees by an employer, occurring after the probationary period has ended, and which is neither based solely on redundancy nor justified by good and sufficient cause.

Unfair dismissal also encompasses the termination of an employee that, even if based on redundancy or good and sufficient cause, is discriminatory or stems from an employee’s actions related to a trade dispute, acting under the directives of a trade union.

In Malta, “good and sufficient cause” for dismissal is not explicitly defined by our law.

However, reasons deemed not to constitute good and sufficient cause include but are not limited to maternity, paternity, parental, and carers’ leave, absence from work due to force majeure, exercising the right to seek flexible working arrangements (for parents and caregivers of children under the age of 8), and getting married, as such grounds are considered discriminatory.

In such cases of dismissal, the jurisdiction of the industrial tribunal applies to employees employed under both indefinite and definite time contracts.

In instances of unfair dismissal, if there is no explicit request for reinstatement or re-engagement, or in the event that the Tribunal opts not to order reinstatement or re-engagement, then the Tribunal will issue an award of compensation. This compensation must be paid by the employer to the dismissed employee (the complainant) as redress for his/her dismissal.

In calculating the compensation amount, the Tribunal considers the actual damages and losses suffered by the worker who was unjustly dismissed, along with other factors such as the worker’s age and skills, which may influence their future employment prospects.

The Tribunal takes into account the duration of unemployment following the unfair dismissal, the length of the employment relationship between the employee and the employer, and any decrease in earnings in subsequent employment.

In addition, when an employee claims to have been unfairly dismissed by an employer, or when there is a claimed violation of any obligation within the industrial tribunal’s jurisdiction, the case must be submitted to the Tribunal. This is done through a declaration detailing the case facts and is to be filed in the tribunal’s Registry, within 4 months from the date the alleged violation occurred.

Should the matter persist and results in litigation procedures, the burden of proof falls on the employer to demonstrate that the dismissal was indeed justified. Conversely, it is not the employee’s responsibility to prove that the dismissal was unjustified.

A distinction is to be made between unfair dismissal and constructive dismissal.
In simple terms, an employee is constructively dismissed when the employer’s unilateral, direct, and/or indirect but significantly wrongful actions make it reasonable for the employee to view the employment contract as terminated by the employer, despite the employee having resigned reluctantly.

Indeed, when we speak of constructive dismissal, we understand that although it may seem that the employee has resigned voluntarily, in reality, this step is a result of the employer unreasonably backing the employee into a corner to the point where the employee has no other choice but to leave.

In the case of ‘Lufthansa Technik Malta Limited vs Ramon Caruana’[2], the First Hall Civil Court stated;

“Ikun hemm lok ta’ constructive dismissal meta l-impjegat ikun imġiegħel jirriżenja mix-xogħol tiegħu minħabba cirkostanzi ta’ natura negattiva fuq il-lant tax-xogħol jew/u jkun hemm xi ksur fundamentali tal-kundizzjonijiet fil-kuntratt ta’ impjieg. Per eżempju, meta l-impjegat ikun talab l-assistenza ta’ ħaddiema oħra iżda minkejja l-ħtieġa ta’ dan it-talba ma tkunx ġiet aċċettata b’hekk ikun hemm riżultat ta’ stress qawwi fuq l-impjegat peress li ma jkunx qiegħed ilaħħaq ma’ xogħlu u jkollu jiddedika ħafna aktar ħin milli suppost għax-xogħol tiegħu u anke ma jieħu l-leave li huwa għandu dritt għalih.”

In the case of Philip Camilleri vs Bortex Clothing Co. Ltd.[3] The industrial tribunal went on to state that;

“li għalkemm mad-daqqa t’għajn l-impjegat ikun telaq u rriżenja, hu fil-fatt dan il-pass ikun riżultat tal-fatt li min iħaddem ikun, irraġonevolment, poġġa lill-ħaddiem dahru mall-ħajt sal-punt li dan ma kellux triq oħra ħlief dik li jitlaq. Ma jkunux kwistjonijiet frivoli iżda serji sew.

For more information or assistance please regarding Employment Law please contact Dr Robert Tufigno and Dr Delilah Vella.  

[1] Chapter 452, Laws of Malta.

[2] Decided on 7th of May 2014.

[3] Philip Camilleri vs Bortex Clothing Co Ltd decided on 4th of February, 2014.

Disclaimer This article is not intended to impart legal advice and readers are asked to seek verification of statements made before acting on them.
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