‘Other remedies available to Freeport ex-manager’
Court decides not to hear rights and discrimination claims
A court dismissed a constitutional application filed by former Malta Freeport Authority employee against the regulator, Malta Freeport Corporation Ltd and its chairman Mark Portelli, after finding that there were other remedies available to him.
Nicholas Cutajar told the court that he had occupied the post of manager. In 2006, the post of senior manager had become vacant and Mr Cutajar felt he was entitled to this position due to his work experience.
However, he complained, another manager – Ernest Tonna – had falsely accused him of having procured false documents to store dangerous materials. An internal investigation had found no wrongdoing on Mr Cutajar’s part and he had then filed proceedings against Mr Tonna.
Mr Cutajar claimed that Mr Portelli had put pressure on him and had threatened him to withdraw his case against Mr Tonna and, when he refused to do so, Mr Portelli had commenced disciplinary proceedings against him. Mr Portelli had then appointed Mr Tonna to the post of senior manager.
In his application, Mr Cutajar said he had worked as Mr Tonna’s subordinate until he was due to retire in November 2011 and had suffered continual victimisation. He was even refused a termination bonus upon his retirement.
Mr Cutajar claimed his fundamental human rights to freedom from discrimination, from inhuman and degrading treatment and to freedom of expression had been violated by Mr Portelli and the entities.
Mr Portelli claimed that he had not been correctly sued because cases of a constitutional nature could only be filed against a State and not against an individual.
He also argued that Mr Cutajar’s constitutional application ought to be dismissed because he had other remedies available to him at law.
Mr Justice Anthony Ellul, presiding over the First Hall of the Civil Court, said case law of the European Court of Human Rights provided a constitutional action could only be filed by an individual against the State. Mr Cutajar’s action against Mr Portelli in his personal capacity was dismissed.
The judge added that the law provided that a court could decline to hear and decide upon a constitutional application if there were other ordinary remedies available to a complainant.
It was clear that Mr Cutajar sought to be awarded a termination bonus and also wanted a judicial declaration that he had been entitled to the post of senior manager and salary arrears.
Mr Cutajar was also after damages on the basis that Mr Portelli had threatened him.
They were all claims that could be made in terms of ordinary civil law.
The court therefore dismissed Mr Cutajar’s application.