Jonathan Ferris’ dismissal from the Financial Intelligence Analysis Unit was discriminatory, a court has confirmed.

The court dismissed the FIAU’s argument that the decision could not be reviewed since it happened while Ferris was under probation. 

The FIAU was appealing a decision by an industrial tribunal, which concluded in Ferris’s favour last October. It argued that both employer and employee have the right to terminate employment without giving any reason during the term of probation and that the tribunal, therefore, had no jurisdiction to review the matter.

However, that argument was shot down by the Court of Appeal which declared that at all stages of employment, including in the early period of probation, a worker had the right not to suffer any discriminatory treatment. 

Interpreting the law in any other way would “give rise to a worker’s abuse at the hands of his employer,” observed Mr Justice Lawrence Mintoff when handing down judgment on Friday.

That meant the tribunal’s decision awarding Ferris €20,000 in compensation for the discrimination suffered upon dismissal from his managerial post at FIAU in 2017, was wholly confirmed. 

Ferris’s saga 

The former police inspector, whose name was synonymous with several major financial crime investigations, took up the position of Head of Unit at the FIAU on November 1, 2016. 

On June 16, 2017, he was fired following a unanimous decision by the FIAU Board of Governors on the recommendation of the FIAU director.

In a statement issued after that dismissal, the FIAU claimed the decision was “based solely on an objective and comprehensive performance assessment.”

But Ferris claimed otherwise, insisting that that decision was politically motivated and that such discriminatory treatment in his regard was not acceptable in a democratic society. 

Trouble for Ferris brewed when FIAU reports about suspected financial wrongdoing at the now-shuttered Pilatus Bank were leaked to the media. 

That was when the investigator was no longer trusted, unlike fellow officials, including three new analysts, who shared the same password as Ferris. 

In fact, the whole team shared that password, although the system could detect any login and any changes effected. Yet, all suspicions fell on Ferris as the one who had leaked those reports. 

On May 2, 2017, two days after seeing the Pilatus report drawn up by the compliance analyst, Ferris was instructed to steer clear of any investigations concerning the bank. His superiors claimed he had a conflict of interest since he had investigated and arrested former Pilatus employee, Maria Efimova, for alleged fraud against the bank.

However, he was still to retain his position as Head of Unit, Ferris was told. 

But after that date, he was sidelined in all FIAU discussions concerning politically exposed persons. Other members of the team were not. 

Industrial Tribunal conclusions 

Upon dismissal, Ferris filed proceedings against the FIAU before the Industrial Tribunal. His former employer claimed that Ferris’s arguments were frivolous and not proved, and that since termination took place during probation, that decision could not be reviewed in terms of law. 

However, the tribunal observed that during probation an employer cannot do as he pleases simply because the employee is still on trial. 

As for the applicant’s claims of discrimination, the tribunal observed that Ferris’s colleagues at the FIAU had not faced the same fate. 

The tribunal failed to understand how the FIAU claimed not to be satisfied with Ferris’s performance, yet at the same time kept him on as Head of Unit, even when the leaks began. 

It concluded that there was no proof that Ferris was responsible for those leaks. 

Tribunal lacked jurisdiction - FIAU

In its appeal, the FIAU argued the tribunal had ignored its preliminary plea on jurisdiction.

Ferris had linked his allegations about discrimination “expressly and limitedly” to the issue of dismissal. He had never filed any other proceedings about discrimination at the workplace but only raised that argument when fired. 

But Ferris was still on probation and during that term either party could terminate the contract without having to give any reason. 

Jurisprudence on this point was clear and the law was “unequivocal” too, argued the FIAU. 

For this reason, the tribunal was wrong in rejecting its plea and also on the merits because it failed to explain why it ultimately gave more weight to Ferris’ version, saying that it was more credible. 

Ferris rebutted both arguments.

FIAU’s argument “unjustified” 

The court said Ferris’s claims were clearly based on discrimination, not unfair dismissal. 

A reading of the law clearly showed that the worker has a right not to suffer discrimination and that right is not limited in any way, said the judge. 

There was no doubt that the legislator wanted to ensure that the worker would suffer no discrimination at any stage and that included during the probationary period. 

If those provisions were to be understood in any other way, it could give rise to abuse of workers at the hands of employers.

An employer could impose discriminatory conditions on the worker who would have to bear up with them simply in hope of securing his job once his probation was over, but instead, the worker is fired. 

Such discrimination would reflect the discrimination the worker endured during employment, observed Mr Justice Mintoff, throwing out the FIAU’s argument as “unjustified.”

As for the appellant’s second argument on the merits, the court declared that Ferris was correct in saying that such appeal was limited to points of law. 

The court abstained from taking cognizance of this second argument, and confirmed the tribunal’s decision in its entirety. All expenses were to be borne by the FIAU. Lawyers Jason Azzopardi, Eve Borg Costanzi and Andrew Borg Cardona assisted Ferris.