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01 July 2020
On 4 March 2020, prior to the Maltese courts' closure due to the COVID-19 pandemic, the Court of Magistrates decided a case wherein an employer claimed that a former employee had abandoned work within six months of returning from statutory maternity and, as such, claimed back all of the wage payments that it had made to her during that time pursuant to Maltese law.
The plaintiff company filed a claim against a former employee in order to retrieve the wages paid to her during her maternity leave period as per Article 36(20)(1) of the Employment and Industrial Relations Act.(2)
The defendant rejected the claim, arguing that she had not willingly resigned or abandoned her employment. Rather, she alleged that she had effectively been terminated by her employer since, on her return from maternity leave:
Maternity leave entitlements are primarily regulated by the Protection of Maternity (Employment) Regulations (SL452.91 of the Laws of Malta). These regulations are enacted as subsidiary laws to the Employment and Industrial Relations Act (Chapter 452 of the Laws of Malta) which, in turn, also includes some provisions which regulate maternity leave obligations.
The court decided this case after assessing Articles 36(19) and 36(20) of the Employment and Industrial Relations Act.
Article 36(19) provides that on the termination of maternity leave to which an employee is entitled, the employee must resume work in the post which they occupied on the commencement of said maternity leave. If this is impossible, the employee should return in an analogous post if their former post is no longer available. This provision protects pregnant employees and aids their job security on their return from maternity leave.
Conversely, Article 36(20) allows employers to retrieve any wages paid to an employee during their maternity leave period should the employee decide not to return to work or leave employment within six months of their return.(3) The six-month period begins to run from the return to work and does not overlap with any additional leave entitlements which an employee may take over and above the statutory 18-week maternity leave period. (This has been clarified in local jurisprudence since the law merely states "after having so resumed work".)
Article 36(20) is a somewhat controversial provision which has been the subject of much discussion, particularly when the Maternity Leave Fund was introduced in 2015 and there was movement for its abolishment. Notably, a similar rule applies in the case of an employee returning from adoption leave, albeit for a shorter period, which is indicative of the movement to clawback the protection given to employers under this provision. Nevertheless, Article 36(20) remains part of Maltese law and provides a tool which employers may seek to enforce even if they are now effectively reimbursed for the maternity leave wages paid to an employee during maternity leave.
'Abandonment of work' is not defined under Maltese law but has been defined by the Maltese courts and tribunals as being the tacit unilateral termination of an employment agreement by an employee. It is referred to in the Employment and Industrial Relations Act on two occasions, one of which was analysed thoroughly by the court in this case.
Specifically, the court considered Article 36(14), which provides that:
an employer may dismiss the employee and the employee may abandon the service of the employer, without giving notice and without liability to make payment… if there is good and sufficient cause for such dismissal or abandonment of service.
Therefore, the court had to weigh up the facts of the case, considering an employee's obligation to pay a sum in terms of Article 36(20), as well as their right to abandon service without payment.
The court noted that if an employee had a good and sufficient cause to cease going to work, their termination of the employment would be considered an exception to Article 36(20).
In general, good and sufficient cause is cited by the industrial tribunal when referring to cases where employees file claims for unjust terminations. However, in this case, the court cited a previous judgment in which it had stated that even in situations such as abandonment of work, it is up to the person citing the good and sufficient cause (in this case, the employee who had left employment) to prove said cause contemplated by Article 36(14).(4) Therefore, the burden of proof rests on the employee.
After hearing several witnesses and reviewing documentary evidence presented by both parties, the court remarked that the defendant had been offered unpaid parental leave for approximately one year after her maternity leave period had expired (on advice from her employer). She had trained another employee prior to her departure in order to aid with business continuity and had been offered another role which she had tried to do before abandoning work.
The court noted that the defendant had also requested to return to work several times, but was not given the option to do so. Thus, it was effectively her employer that had unilaterally terminated the employment agreement and refused to allow her to return to work with the same or similar role as required by law.
The court denied the plaintiff's claim and stated that the employee had had good and sufficient cause to abandon work and therefore did not owe any payment to her former employer post termination.
For further information on this topic please contact Michael Paul Agius at Fenech & Fenech Advocates by telephone (+356 2124 1232) or email (email@example.com). The Fenech & Fenech website can be accessed at www.fenechlaw.com.
(1) Where a female employee does not resume work as provided in the preceding sub-article or, after having so resumed work, abandons the service of her employer without good and sufficient cause within six months from the date of such resumption, she will be liable, without prejudice to any other liability under this act, to pay the employer a sum equivalent to the wages that she received during the maternity leave.
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