Employment law (chapter 452 of the Laws of Malta – Employment and Industrial Relations Act) seeks, among others, to regulate employment dismissal. The spirit of the law attempts to create a safety net that shrouds the employee – being the weaker party in terms of the employment contract – from being dismissed arbitrarily and unjustly.
It must be said that the law does not stipulate a specific procedure as to how dismissal is to be effected. A popular belief perhaps is that before dismissal, the employer must undertake a series of written warnings. This is not so, and the appropriate procedure to be adopted when it comes to dismissal depends on the underlying employment relationship circumstances.
An employee may be considered fairly dismissed, without being handed a prior warning (whether written or otherwise) if, for instance, he is found stealing from his employer. On the other hand, outright dismissal following an employee’s misdemeanour may be tantamount to unfair dismissal.
Really and truly, the fairness or otherwise of a dismissal depends on the circumstances of the case. What is considered fair or unfair is subjective.
Unfair dismissal is termed as the termination by the employer of a contract of employment contracted for an indefinite period; being a termination that is not made on grounds of a ‘good and sufficient cause’, or when the termination is made on grounds of redundancy which is found to be discriminatory against the employee, or the termination by the employer in respect of that employee of a contract of employment for a fixed term.
A parallel concept to unfair dismissal is the concept of constructive dismissal. This term is not defined or even mentioned in chapter 452. Constructive dismissal results when the employee forcefully dismisses himself or herself from work because of an employer’s belligerent conduct. Even though chapter 452 misses this concept, the concept has been time and again recognised as another form of a potential unfair dismissal by the Industrial Tribunal.
The concept of constructive dismissal featured in a recent judgment delivered by the Court of Appeal on July 30, bearing the names of ‘Lopez v Jet Magic Air Personnel Limited’.
The plaintiff was an employee of the defendant company as a flight attendant. The applicant executed her work in Spain (the plaintiff’s country of residence) where she boarded chartered aircraft and travelled with the company’s customers to their destinations. Some years back, she became pregnant, and for this reason, she had informed her employer company that she was to be grounded. In this regard, it was claimed that the employer company had to offer her an alternative duty.
The claimant expected her employer to support all extra costs which covered her relocation to Malta
Jet Magic Air Personnel Ltd offered its employee an alternative job, which job required the plaintiff to station herself in Malta, but the same wage and conditions were being retained. A few days after this offer, the appellant/plaintiff informed her employer that she could not relocate to Malta due to her health condition, on her doctor’s instructions and advice.
Moreover, and while this communication was taking place, it resulted that the claimant expected her employer to support all extra costs to cover her relocation to Malta, which included residential costs, day-to-day costs and medical costs. The respondent denied such requests and insisted that the plaintiff was being handed an alternative job with the same conditions and that she was to expect equal treatment to other employees who had identical roles.
It also became apparent from the evidence gathered that the employee tried to negotiate her working hours in such a way that she would be able to return to Spain during weekends. The parties clashed and the claimant resigned.
Consequently, she filed this case on grounds that she was forced to terminate her employment due to her employer’s conduct. The plaintiff expected and demanded the court to declare that her employment was terminated on discriminatory grounds. On these grounds, the claimant demanded compensation from her ex-employers.
The Industrial Tribunal found that Jet Magic Air Personnel Limited was obliged to provide the claimant with an alternative job (given her medical condition) with the same conditions and wage. It considered that Jet Magic Air Personnel Limited had honoured its contractual and legal obligations towards its employee. No unfair/constructive dismissal was found and, therefore, no compensatory sum was awarded to the plaintiff.
The plaintiff disagreed with the first instance judgment and tendered an appeal. She claimed that the tribunal did not take any cognisance of the Maternity Protection (Employment) Regulations. Incidentally, the purposes of these regulations stipulate the minimum requirements that are designed to safeguard and protect the jobs of pregnant employees.
Secondly, the appellant complained that the tribunal failed to correctly interpret the concept of ‘discriminatory treatment’. In this regard, the appellant argued that her discriminatory complaint was not linked so much to the fact that she was treated differently from other employees but to the fact that pregnant flight attendants were being asked to relocate to Malta and leave their country of residence. The appellant argued that she would not have done the alternative duties she was being offered because this essentially involved a drastic change in her residence. Therefore, the appellant argued that she had no option but to decline the offer and resign from her post.
The Court of Appeal disagreed.
It noted that the appellant had failed to explain this discriminatory ground – indeed her employer had offered her an alternative job while retaining the same conditions and wages. The court also noted that no other viable job could be offered by the appellate company. It noted that Jet Magic Air Personnel Limited had done its best to retain its employee in employment and, therefore, that it was compliant with the imposed legal obligations.
The second instance court found that the first judgment was correct to find that no unfair/constructive dismissal occurred. To this effect, no compensation was awarded to the employee party.
Mary Rose Micallef is an associate at Azzopardi, Borg and Associates Advocates.