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22 May 2019
Industrial Tribunal cases tend to be sensitive in nature as they essentially deal with a person's livelihood; however, when the Industrial Tribunal is faced with matters which have also been referred to the courts of criminal jurisdiction, such cases are even more complex.
How must an employer regulate itself regarding an employee's employment when it is confronted with a pending decision by the criminal court? Is termination of employment justified at all stages of proceedings? Are there special circumstances where it is appropriate for the employer to delay termination until the criminal court reaches a decision when it suspects that an employee has breached the law? Would the latter tip the balance in favour of employees excessively?
On 8 January 2019 in Falzon v Maltapost plc, the Maltese Industrial Tribunal assessed whether the termination of Ms Falzon's employment had been unjust.
While the applicant alleged that her termination had not been based on a good and sufficient cause as required at law, the defendant company argued otherwise.
The applicant had been employed as a postwoman with the defendant company since November 1997 on an indefinite contract.
On 30 June 2008, while out on duty delivering mail, the applicant felt a sharp pain in her knee and as a result was unable to walk and continue her duty. The applicant attempted to contact the defendant company to alert them about the situation but she failed to get through. She also tried to contact her manager but was once more unsuccessful. The applicant subsequently called her father to pick her up and take her to the doctor, who prescribed the applicant with time off work and rest.
At the time of the incident, the applicant had 25 undelivered letters in her possession, which she took home with her. However, it transpired that at the time of the incident failure to deliver letters amounted to a criminal offence under the Postal Services Act (Chapter 254 of the Laws of Malta).
The applicant returned to work the following day and took the undelivered letters with her. However, she once more felt the same sharp pain in her knee and as a result fell to the ground, further injuring herself. The applicant was taken to hospital and remained on injury leave until 13 July 2008.
On 22 September 2008, several weeks after returning to work, the applicant received a letter from the defendant company's human resources manager, in which she was informed that she had to appear before a disciplinary board.
After attending her disciplinary hearing on 7 October 2008, the applicant was then informed via a letter from the CEO that her employment was being terminated with immediate effect because she had failed to abide by the Code of Behaviour of the Collective Agreement.
The applicant appealed the termination decision but her appeal was rejected. In view of the rejected appeal and the company's decision to terminate, she filed proceedings for unjust dismissal before the Industrial Tribunal.
However, the case before the Industrial Tribunal was adjourned pending the decision of the criminal courts.
The Industrial Tribunal analysed the case carefully and considered that the applicant had done everything to get in touch with the defendant company, but despite her efforts had failed. On the other hand, the defendant company argued that the applicant had fallen short of satisfying her duties and had breached her postal oath and committed a criminal offence in failing to deliver the letters.
The applicant underwent proceedings before the magistrates court as a court of criminal judicature and was found not guilty. The magistrates court's decision was subsequently appealed; however, the Criminal Appeal Court in its inferior jurisdiction also found the applicant not guilty.
The Industrial Tribunal noted that the applicant had undergone an internal disciplinary process and further highlighted that at the time of the incident, the alleged breach of postal regulations by the applicant amounted to a criminal offence and thus it could not simply ignore that fact.
The Industrial Tribunal noted that the only failure on the applicant's part was that on her return to work she failed to inform the defendant company that 25 letters had been left undelivered. This failure affected the Industrial Tribunal's decision in relation to the compensation granted to the applicant. It provided that owing to the fact that the alleged breach of postal oath was considered to be so severe – so much so that such behaviour had warranted criminal proceedings – the defendant company should have been more cautious and waited for the outcome of the criminal proceedings before terminating the applicant's employment.
The tribunal referenced author Norman Selwyn who, in relation to such circumstances, stated that where "there are doubts, fairness may require the employer to wait until the criminal proceedings have been concluded (Harris and Shepherd v Courage (Eastern) Ltd)".
Following an analysis of the facts – including the respective witnesses' testimony, the time that the applicant had remained unemployed and the fact that the applicant had failed to inform her superiors about the undelivered letters – the Industrial Tribunal ordered the defendant company to pay the applicant €6,000 in compensation and held that the applicant's termination had indeed been unjust.
Did the Industrial Tribunal state that the defendant company should have waited for the criminal proceedings' outcome because, at the time of its decision, the applicant's behaviour no longer constituted a criminal offence? Unfortunately, the Industrial Tribunal failed to elaborate on whether the story would have been different had the failure to deliver letters still constituted a criminal offence at the time of its decision.
Notably, in its 1996 decision in Pisani v Malta Shipbuilding Co Ltd the Industrial Tribunal held that as the courts of criminal jurisdiction found the applicant guilty of theft at the workplace, the defendant company had no option but to terminate the applicant's employment. As such, the Industrial Tribunal held that the defendant company did indeed have a just and sufficient cause to do so. In this case, the defendant company had waited for the courts of criminal jurisdiction's decision before terminating Mr Pisani.
In Spampinato v Enetsport Limited, although not relating to a criminal offence, the Industrial Tribunal held that the defendant company had been entitled to dismiss an employee who had, on one occasion forgotten to upload games to the company's platform. Therefore, on this line of reasoning, was Maltapost entitled to dismiss Falzon based simply on her failure to deliver letters even if such failure did not constitute a criminal offence? (For further details please see "No warnings, no damages, no due process: one-off mistake validates employee's dismissal".)
Where should the line be drawn as to when an employer should await outcomes of criminal proceedings or otherwise, especially given the backlog of the criminal courts? Should the employer retain an employee for years until the final decision of the criminal courts?
The Industrial Tribunal's expectation that employers wait for the final decision of the criminal courts translates to an employer having to retain the employee for years on end pending a court decision. Is this stretching the tribunal's aim to protect employees too far?
Although Selwyn states that in cases of doubt, fairness may require the employer to wait for the outcome of the criminal proceedings, he also states that where the evidence produced is sufficiently indicative of guilt, the employer is entitled to act.
It is important to see whether future Industrial Tribunal decisions will follow this line of reasoning, or run contrary to the decision in Falzon v Maltapost Plc, keeping in mind that the Maltese courts do not follow the doctrine of judicial precedent.
For further information on this topic please contact Mattea Pullicino at Fenech & Fenech Advocates by telephone (+356 2124 1232) or email (firstname.lastname@example.org). The Fenech & Fenech website can be accessed at www.fenechlaw.com.
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