A construction company has been ordered to pay almost €9,000 for the unjustified dismissal of one of its workers who had been warned of “dire consequences” unless he supplied information about a suspected workplace theft. 

Anthony Gambin was employed by Kandja Construction Limited on October 29 of 2018 on an indefinite contract, acting as a site supervisor of construction works at a new drug rehabilitation centre for Caritas Malta.

The company had won a tender for the project, which, by the time Gambin was informed that his employment was being terminated two years and three months into his employment, had not been completed. 

The worker sought recourse before the Industrial Tribunal, claiming that there was no valid reason for such termination.

The company rebutted that he had been laid off on the basis of redundancy. 

As site supervisor, Gambin worked from Monday to Friday between 7am and 4pm, taking note of all people and vehicles accessing the construction site, as well as all construction materials taken into the site.

He filled in the data on forms provided by his superiors and also logged the information on a company computer. 

Under his watch, Gambin claimed to have received no reports of alleged thefts from the construction site, except for one incident when two company directors approached him about a case of suspected theft.

They wanted him to tell all, insisting that he was to spill the beans on the person who had allegedly stolen items from the construction site. 

But Gambin denied any knowledge of the theft, adding that he had no clue at all about the alleged theft, let alone the suspected thief.

'Dire consequences'

Gambin was summoned to a meeting with one of the directors who warned him that he would face “dire consequences” unless he came up with information about the theft. 

One month later, he was told that his employment was being terminated. 

Moreover, he was warned that if he sought payment for the notice period, he would be sued by the company in court. 

Shortly after Gambin lost his job, the company tasked someone else to take over his work. 

When the dispute landed before the tribunal, the company argued that the building project had been finished and all that remained was a “snag list,” thus meaning that Gambin’s presence as site supervisor was no longer needed.

The company had offered him alternative work, doing cleaning tasks at the site, but Gambin had turned down that offer.

Moreover, the company claimed that Gambin’s performance was “very poor,” and had gotten progressively worse, but they had taken pity on him and had refrained from taking action so as not to leave him jobless. 

The tribunal, chaired by Joseph Gerada, observed that in terms of law, redundancy came about when the employer experienced a loss of work and a surplus of workers. 

Such an employer was expected to inform his workers, offer them training and where possible, alternative work while adopting a sensitive approach towards those hit by such difficult circumstances.

'Warned of legal action'

In this case, Gambin had been warned of legal action if he sought to claim notice payment.

The director had told him not to report for work “on Monday” because he had “found someone else to replace him.”

Although the company argued that that “someone” was a handyman tasked with tackling the “snag list,” the tribunal said that a new worker had been engaged with the task until the project was fully completed eight months later. 

As for the alternative work offered, cleaning had simply been an additional task to Gambin’s main job as a supervisor, the tribunal said.

Nor had the company issued him with any warning about his allegedly “poor performance”, it added.

Indeed, Gambin used to keep detailed records, both handwritten and computerised, showing that he did his work well.

The company had never consulted those records to assess his performance, observed the tribunal. 

When his job was terminated, the project still lacked certain plastering and tiling works.

No CCTV, secure storage facilities

As for the theft incident, the tribunal pointed out that there was no CCTV equipment at the construction site, nor any secure storage facilities.

There were a number of keys to the entrance gate at the site and various people handled those keys, observed the tribunal, adding that the alleged theft might also have taken place after Gambin’s work hours.

When all was considered, the tribunal dismissed the company’s redundancy argument, stating that the termination was unjustified and ordered Kandja Construction Limited to pay Gambin €8,824 by way of compensation.

That amount represented his monthly salary multiplied by the number of months it took to finish the project and hand it over to Caritas. 

A company director had described Gambin as serving “as the director’s eyes at the workplace” and no director would “remove” his eyes from a project until it was fully accomplished, remarked the tribunal.

Lawyer David Gatt assisted the applicant.