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17 April 2019
On 25 March 2019 the Maltese Court of Appeal (inferior jurisdiction) upheld an Industrial Tribunal decision of 10 August 2015 and confirmed that a company operating in the iGaming industry had been entitled to dismiss an employee who had, on one occasion, forgotten to upload games to the company's platform (Case 21/2015).
The court noted that although the employee had previously received written instructions not to make any changes to the platform, he had had no reason not to follow the new instructions that were handed to him on a sticky note. The court commented that, in its opinion:
The judgment suggests that an employer that pays an employee a significant sum for the responsibility that they carry has the right to expect that the employee will not neglect their duties in the above manner.
Further, the fact that the employee's manager had uploaded the games on time and that the company thus suffered no loss or damages had no bearing on the fairness or otherwise of the dismissal. Had the games not been uploaded, the company would have suffered damages by way of lost profits.
The court deemed the dismissal to be fair despite:
Maltese law provides that employers may dismiss employees when there is a good and sufficient cause which warrants the termination. The law does not define the term but merely gives examples of what is not a good and sufficient cause.
In most cases, the Industrial Tribunal and the courts emphasise that an employee's dismissal from employment is akin to capital punishment for that employee. As such, it requires the employer to substantiate the cause for dismissal with evidence of gross misconduct or repetitive errors or lack of performance which, cumulatively, justify that dismissal. It is rare that a one-off singular incident in the form of a mistake is deemed sufficient to dismiss an employee. Justifying such dismissals is generally considered unlikely without:
This case appears to be an exception to this general understanding which was justified by the argument that employees who are dearly compensated must expect a lower degree of tolerance for mistakes or blunders (described by the court in this case as an apparent carelessness). Nonetheless, this is a contentious judgment which, at face value, seems to diminish the burden that an employer must prove the continuous or repetitive misconduct or underperformance substantiated by valid warnings.
Finally, considering the trend of recent Court of Appeal (inferior jurisdiction) judgments, it appears that:
However, a word of caution is required as this too is an exception to the rule when compared with the numerous Industrial Tribunal decisions which continue to emphasise the importance of following a fair and transparent process before dismissal.
For further information on this topic please contact Paul Gonzi 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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