The courts and the Industrial Tribunal are calculating compensations based on different parameters, resulting in widely varying awards, lawyer Andrew Borg Cardona said.
Addressing a conference organised recently by the Malta Employers’ Association on reform of the tribunal, he noted that there were various grey areas that needed to be resolved, adding that although most of the tribunal judgments were appropriate, some made “no sense”.
“There are too many different interpretations and we need clarity, especially when it comes to the calculation of compensation for unfair dismissal,” he said, adding that some countries had successfully capped amounts.
The MEA believes that compensation should be capped at the equivalent of 18 months’ salary, which some unions disagree with.
The tribunals have handled over 2,500 decisions over the years since they were first set up in 1976, many of which ended with an amicable solution. MEA executive Charlotte Camilleri said that in 2016 and 2017 more cases were settled amicably than through the tribunals.
However, the MEA feels that there is much wrong with the current system, calling for the tribunal chairs – who earn around €300 a month – to be lawyers, and for the tribunals to have their own premises, rather than relying on whichever court hall happens to be free.
We need clarity
Apart from having consistent judgments and clarity, those at the conference all agreed on the need for speed. General Workers’ Union secretary general Josef Bugeja pointed out that in cases of reinstatement, for example, the employee could not hang around for weeks on end awaiting the outcome of the case, adding that one case had taken two years.
The MEA first presented proposals for the reform of the system in 2014, prompted primarily by the fact that the system – meant to bypass the court system to make it faster – had ended up taking far too long.
Another way to speed up the process was proposed by Voice of the Workers UĦM secretary general Josef Vella: mediation. He also said that the tribunal chairs should work full-time. Alternative dispute resolution was also proposed by FORUM representative Chris Attard, who said that either arbitration or mediation would drastically reduce the caseload at the tribunal.
Dr Borg Cardona pointed out that there are five different bodies which could be approached when seeking justice – a situation which will be exacerbated when the Human Rights and Equality Act comes into force, adding yet another body to deal with cases involving discrimination and sexual harassment, for example.
Nationalist MP Claudette Buttigieg – who is also deputy Speaker – said that the proposals should be made to the parliamentary Social Affairs Committee, which would ensure that they were put on the agenda for discussion.
The conference was closed by the Minister for European Affairs Helena Dalli, who reassured the audience that reform on the tribunal was a priority, expressing her agreement with the idea of alternatives to the tribunal procedures.
The main MEA proposals:
▪ Change name to Employment and Industrial Tribunal
▪ One tribunal whether complaint is civil/administrative or criminal
▪ Chairperson should be a lawyer with seven years’ experience
▪ Set up Employment Appeals Tribunal rather than referring appeals to court
▪ Appeals only to be allowed for unfair dismissal cases
▪ Set three-month limit for cases to be concluded
▪ Cap compensation amount at 18 months
▪ Security of tenure for chairs and members for set period
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