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February, 14 2020
February, 6 2020
Appeal from a decision of the Industrial Tribunal must be on a point of law
By: Avv. Malcolm Mifsud, Partner @ Mifsud & Mifsud Advocates
An appeal application purely based on the disagreement with the analysis of the Industrial Tribunal with regards to the facts of the case shall be rejected by the Court of Appeal. This was held by the Court of Appeal presided by Hon. Judge Joanne Vella Cuschieri in the case of Carmen Abela vs Centro Management Limited decided on the 12th of December 2019. The Appeal was filed following a decision of the Industrial Tribunal between the same parties that was decided on the 24th January 2019.
Carmen Abela had been employed with the defendant company as a Sales Assistant on a part-time basis for a period of around eleven months. She had been employed on a definite basis for a period of three months which period could be automatically renewed for a further period of three months up to a maximum of four years. On the 18th November 2016, she received a letter where she was informed that her employment contract was not going to be renewed and therefore her employment was going to be terminated on the 30th November 2016. Carmen Abela filed a complaint before the Industrial Tribunal wherein she argued that her employment had been terminated unjustly and without there being a valid reason at law. She also requested the Industrial Tribunal to declare her reintegration into employment and to be awarded damages for the unfair dismissal from work.
When considering the facts of the case the Industrial Tribunal found that the definite employment contract Abela had with the defendant company had not been renewed, and therefore rejected her claim that she had been unjustly dismissed from her employment. The Tribunal agreed with the defendant company’s claim that they terminated the applicant’s contract in accordance with the contract they had both signed, wherein Abela was to be employed for a recurring period of three months at a time. This period was to be automatically renewed for another three months unless the employer decided to terminate the contract, in which case a week’s notice had to be given to the employee. The contract also stated that whichever party terminated the employment contract before the end of the three-month period had to pay half the sum of the wages due until the end of that mentioned period.
The Tribunal commented on the administrative shortcomings of the company and stated that the way in which they handled the employment of their staff was disorganised. Nonetheless, it noted that when the letter of termination of the contract was sent to the appellant on the 18th of November 2016, in it was enclosed a cheque for half of her wages up until the end of that current three month period, which happened to be the 30th of November of the same year. Thus, although the employment contract was far from ideal, the employers had every right to terminate the contract and did so in accordance with the agreement that both parties had signed. Furthermore, the Tribunal held that the plaintiff was not owed any compensation for the termination as she had already received what she was due.
Abela felt aggrieved by this decision and filed an Appeal before the Court of Appeal. The Court of Appeal heard the pleas by the appellant who disagreed with the Tribunal’s appreciation of the evidence presented by both parties. She stated that the Tribunal mistakenly held that she started working with the defendant company on the 23rd of November 2015 since she had started working with them on another date. She also requested the Court of Appeal to allow her to present new evidence which would be able to prove that she started working with the company in December of that same year. On this point, the Court of Appeal agreed with the defendants that all proof had to be submitted at the Tribunal stage and refused to allow the production of new evidence.
In considering the decision of the Tribunal, the Court of Appeal held that it agreed with the Tribunal’s conclusions after considering the statements of various witnesses and the documents produced by the parties. The Court of Appeal also stated that the date of the start of employment does not affect the case since the claim revolved around whether the appellant had been notified in time and in accordance with the agreement regarding the non-renewal of her employment contract following the end of the term ending on the 30th November 2016. The Court of Appeal agreed with the decision of the Industrial Tribunal that the notification sent on the 18th November 2016 was in accordance with the agreement signed between the parents and within the time frame of one week notice.
Moreover, since the appeal was based on a point of fact and not a point of law, the Court of Appeal rejected the appeal application on the basis of Article 82 of the Employment and Industrial Relations Act, Chapter 452 of the Laws of Malta which states that in cases of unfair dismissal there shall be a right of appeal on a point of law. Therefore, the appeal was rejected, and the appellant was ordered to pay all costs.