Civil servants are being denied financial compensation for any outstanding days of vacation leave after the termination of their employment in breach of EU legislation Malta is obliged to adhere to.
However, the government is resisting calls from the Ombudsman to address this discrimination, while the House of Representatives has given no feedback whatsoever on the matter, despite having been alerted over a year ago.
This injustice came to light when two police inspectors who left the force, sought redress after their request to receive the allowance due to them for outstanding vacation in terms of the Employment and Industrial Relations Act was refused.
In its reply the People and Standards Division with the Office of the Prime Minister justified the denial on the grounds that such provision was not applicable to members of disciplined forces unless through a specific legal notice.
Though the Ombudsman acknowledged that such submission was “essentially correct” in virtue of a specific provision in the law, he said that such case alone did not justify inaction on the part of the administration.
This remark was made with reference to sub-section 48(1) of the Act which states that the Prime Minister had the power to prescribe the applicability of any article of the Employment Act with respect to civil servants and members of disciplined forces.
The Ombudsman also argued that Article 7 of the EU’s Working Time Directive stated that “the minimum period of annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated”. This directive was applicable to Malta, as it had been transposed by legal notice 247 of 2003, the Ombudsman noted.
Furthermore, member states cannot apply for a derogation on the matter – the term used to apply to opt out from a provision.
In his submissions, the Ombudsman denounced the position taken by the Division of trying “to bypass or neutralise an EU directive”. He also described as “deplorable” the attempt by the Division to find a solution by advising complainants to agree with management to postpone the termination date of their employment by an equivalent number of days to their outstanding vacation leave.
Such conduct amounted to an attempt to condone their breach of an EU directive, the Ombudsman said.
In view of this the Ombudsman recommended that Maltese law be brought in line with EU regulations so that the existing discrimination between civil servants and private sector employees would cease.
He warned that if no action was taken, he would be recommending to take the case before the appropriate EU institutions, including the European Ombudsman.
Despite this strong opinion, no progress has been registered, prompting the Ombudsman to refer the case to the Prime Minister. Replying through the Principal Permanent Secretary Mario Cutajar, the Prime Minister said that they stood by their decision.
In view of this, the Ombudsman sought another avenue by flagging the case to Parliament.
A copy of his opinion together with relevant correspondence was sent to the Speaker, along with a formal request to bring Maltese law in line with EU legislation. This opinion was tabled in Parliament on February 7 of last year but to date no progress has been registered.
In his annual case notes report, Ombudsman Anthony Mifsud last week expressed concern that this was not an isolated incident and called for this situation to be remedied.
“One can safely conclude that this statutory procedure provided for in the Ombudsman Act, which was meant to be a final safeguard to provide redress against injustice to aggrieved citizens, is proving to be ineffective,” he said.