In a judgment delivered by the Industrial Tribunal and confirmed on appeal on October 13 (70/2020 LM), the Industrial Tribunal declared: “The principle of natural justice, which in this case translates into giving the employee due, formal, written notices of risking dismissal unless the employee corrects her attitude and behaviour, and giving the employee the opportunity to defend herself with the assistance of a person of her trust when faced with prospective dismissal, overrides whatever provisions there may be in an employment agreement.”
The facts were as follows:
The employee was engaged with the employer on a full-time basis for an indefinite period as a customer service agent, with the relationship regulated by an employment contract signed in 2014. Nineteen months later, the employee was told that her employment was being terminated on the basis of redundancy.
The employee contested the termination, stating that it was not justified and the company reacted by changing the employee’s termination notice initially based on redundancy to that based on disciplinary reasons within two days from receipt of the employee’s objection to dismissal.
The tribunal noted that the employer had been guided by the provisions of the employment contract when dismissing the employee, specifically, the clause stating: “In the event that the employee… habitually neglects the duties to be performed under this agreement… such circumstances shall constitute a good and sufficient cause for dismissal and for the ipso facto termination of this contract of service...”
The employee filed proceedings before the Industrial Tribunal and claimed that her termination of employment was unjust, based on reasons which were not sufficient in law. The employee further demanded that she be compensated adequately for the alleged unjust dismissal.
The employer disagreed and further stated that if the Industrial Tribunal was to find that termination was indeed unjust, the compensation would be minimal, based on the short period for which the employee had been engaged with the employer.
This particular case is not normal because it violates natural justice, as at no point in time was the employee made fully aware that her behaviour and attitude were leading to her being dismissed
The Industrial Tribunal was convinced that the employer “had had enough of the employee” and recognised that to the company, redundancy – although not reflecting the actual situation – seemed to be the “smoothest reason” safeguarding the employee’s possible future prospects with that particular industry; and so it initially issued a letter of termination on grounds of redundancy. When the employer learnt that the employee wasn’t going to settle for it, the employer changed the reason for termination to one of discipline and registered it as such with Jobsplus.
The tribunal established that legally and officially there existed only one reason for dismissal – a disciplinary one. The tribunal pointed out that initially declaring the reason of termination as being one of redundancy is not extraordinary in employee relations, albeit normally the fudging of the actual reason of termination results from a request by the employee.
The tribunal condemned such practice, declaring that it is illegal to give a reason that is untruthful to Jobsplus. However, there is nothing in the law that prohibits the changing of the reason of termination.
The tribunal then moved on to establish whether the disciplinary grounds claimed by the employer (poor timekeeping, abuse of sick leave, substandard quality of work, disruptive behaviour and damaging of company property due to negligence) did actually exist and whether they constituted a good and sufficient cause for dismissal.
It further had to establish whether the processing of the dismissal was fair.
It found that the employer’s claim of employee’s abuse of sick leave was proven, including by evidence that while the employee was on sick leave, she had gone out for lunch with the director of the same company, on which occasion the employee ironically complained about the rejection of her request for optional leave.
The Industrial Tribunal was also satisfied of the employee’s substandard quality of work, her disruptive attitude towards her superiors and negative attitude in how she chose to deal with issues she had with her superiors.
The tribunal was also satisfied that the employee had damaged company property due to negligence when she damaged three company laptops by cracking the back of the screen of one after dropping it, dropping a glass of water over another and damaging an HDMI port of another.
The employee herself did not contest the fact that she was late on some occasions and that she also had an agreement with her superiors to leave 20 minutes early from work, which time she was due to make up for later. The tribunal declared that poor timekeeping was proven by the employer.
Moreover, the employer tried to accommodate the employee as much as it could, including by issuing a request asking the employee to choose between her changing her working times and not being paid for the time that she did not work.
The employer considered that such a request had not been replied to by the employee; however, from the evidence produced, the tribunal found that employee could not be validly accused of ignoring the request since at the time when the request was sent to the employee, she was on vacation leave and was not aware of it. Based on this, the tribunal described the employer’s reaction as being too hasty in considering the employee’s failure to reply to the request while on vacation leave and shortly prior to being dismissed.
In its deliberations, the Industrial Tribunal confirmed that the employee’s proven misconduct would normally constitute sufficient grounds for dismissal. However, it also considered that this particular case is not normal because it violates natural justice, as at no point in time was the employee made fully aware that her behaviour and attitude were leading to her being dismissed from her employment.
Moreover, she had received mixed signals from her employer, especially shown by the exceptional lenient attitude taken towards the employee’s unacceptable behaviour.
In its award, the tribunal considered the employee’s age at dismissal, 32, as being young enough to pursue a long working life and also that she had only worked for the company for 19 months prior to dismissal.
It further considered that by her attitude and behaviour she contributed to the company’s decision, and for this she had to assume responsibility, thus affecting the tribunal’s compensatory award.
The dismissed employee was awarded €4,200 as compensation for her dismissal by company.
The employer’s appeal was quashed and declared null.
Rebecca Mercieca is an associate at Azzopardi, Borg & Associates Advocates.