Industrial Tribunal, no longer the exclusive judge of facts?

It is axiomatic, or at least it has been to date, that Maltese employment law only allows an appeal from a decision of the Industrial Tribunal on a point of law. The Court of Appeal is enjoined to hold that the Tribunal is the final judge of the facts, and it should not conduct the hearing all over again simply because it might have viewed the evidence differently.

The judgment in Simon Manicolo v Broadcasting Authority (Inf. App. 8 July 2026 per L Mintoff J.) may, however, have shifted the boundary significantly.

The facts in brief were that Manicolo had worked for the Authority for 33 years. While away from work for a substantial time for a good reason, he was accused of failing to communicate with the Authority, abusing his circumstances by carrying out limited notarial work and placing himself in a conflict-of-interest situation.

Disciplinary proceedings followed. Before the Authority determined the final sanction, Manicolo wrote that he was willing to accept a warning and return to work, but that, if the board had lost confidence in him, his letter should be treated as his resignation.

The Authority promptly accepted the resignation.

As recounted in the Court of Appeal’s judgment, the Industrial Tribunal itself was far from complimentary about the Authority’s conduct. It considered that the loss of trust was not justified, that communication had been poor and that a serious warning would have been more appropriate after 33 years of service. Nevertheless, the Tribunal found that Manicolo had taken a calculated risk and had resigned voluntarily before the disciplinary process was exhausted.

There was therefore no constructive dismissal.

On appeal, the Authority argued the obvious point: this was an attempt to reopen the Tribunal’s appreciation of the evidence, not an appeal on a point of law.

The Court of Appeal held, however, that whether the established facts amounted to constructive dismissal was itself a legal determination. The court said that it could not decide whether its elements existed in a vacuum and carried out a detailed analysis of the evidence. It disagreed with the Tribunal’s conclusion on the matter of whether constructive dismissal had taken place, finding that Manicolo had effectively been forced out.

The law provides no statutory definition of constructive dismissal- Andrew Borg-Cardona

The case was returned to the Tribunal solely for compensation to be assessed.

The court did not disturb the Tribunal’s findings of fact. Rather, it accepted those findings as its starting point and asked the question: did those facts, properly characterised in law, amounted to constructive dismissal?

It can be argued that the court did not actually substitute its own view of the evidence for that of the Tribunal but rather recognised that the legal consequences flowing from established facts are themselves capable of appellate scrutiny.

The wider question is difficult to avoid.

The law provides no statutory definition of constructive dismissal. Neither does it, except in the negative, define ‘good and sufficient cause’, that conclusion being reached by applying determinative standards to facts established by and before the Tribunal. Practitioners, therefore, must advise on the basis of their own understanding of the way the Tribunal might understand and interpret the facts, knowing that no appeal lies from the decision arising from that process.

However, it must be asked whether today, if constructive dismissal may be reviewed because the Tribunal incorrectly applied a legal concept to the evidence, should the same not apply where the Tribunal concludes that misconduct or any other set of facts amounted – or did not amount – to good and sufficient cause for summary dismissal?

Manicolo appears to recognise that the line between fact and law is not actually as rigid as has often been assumed. Where the Tribunal has correctly identified the facts but arguably reached the wrong legal conclusion from those facts, will the court regard that as an error of law rather than a mere disagreement over evidence?

Previous decisions of the Court of Appeal, under Maltese law, bind no-one, not even the court itself but they are of very significant persuasive value. Following Manicolo, however, is the legal standard to be applied to a factual matrix now living on a different plane?

To put it differently, once the court is prepared to review whether established facts satisfy the legal test for constructive dismissal, a creative appeal may well ask why it should not equally feel empowered review whether established facts satisfy the legal threshold for summary dismissal.

In both instances, the question is ultimately whether the law has been correctly applied by the Tribunal to the facts found by the Tribunal.

Has the Court of Appeal signalled a move towards a more interventionist approach where the Tribunal’s evaluation of the legal consequences of the facts is perceived to be flawed? Will the quality of Industrial Tribunal Awards be subjected to a more rigorous examination?

Andrew Borg-Cardona has practised employment law since 1980. He hopes he will finally get it right.