Issue link: https://maltatoday.uberflip.com/i/1016519
13 LAW & PLANNING maltatoday | SUNDAY • 19 AUGUST 2018 IN the first instance case, applicant sought permission to construct two additional residential floors on an ex- isting multi storey complex situated in Triq in-Naxxar, San Gwann. The said application was turned down by the Planning Commission due to the fact that a 50cm screening wall was being provided at topmost level (instead of the statutory one- metre wall required by policy P35 of the Development Control Guidance 2015 or DC2015). Indeed, a one-metre wall would have meant that the building envelope would exceed the statutory height limitations. In fact, the Commission argued that "if the obligatory one-metre high parapet wall was to be provided, the resulting proposed building height including the parapet wall would ex- ceed the maximum local plan height limitation and the corresponding height in metres." For this reason, the Commission considered that the proposal was in violation of Urban Objective 3 of the Strategic Plan for Environment and Development (SPED) which aims to protect and enhance the character and amenity of urban areas. Aggrieved by the decision, applicant lodged an appeal before the Environ- ment and Planning Review Tribunal whereby he insisted that the Com- mission had failed to take note of the fact that his site was surrounded by 'similar' development. Moreover, applicant, now appellant, made reference to several planning applications which were granted per- mission "without the need to provide a one-metre parapet wall at roof lev- el" and which the Authority was now giving the impression that prospec- tive developers may not do away with. In reply, the case officer argued that according to policy P35 of DC2015, buildings should include an obligato- ry one-metre parapet wall on the ex- posed facades at the uppermost roof level. With reference to the quoted precedents, the case officer acknowl- edged their existence but yet insisted that "the requirements and regula- tions set out in the Development Control Guidance 2015 were still in force." In its assessment, the Tribunal ac- knowledged that, as a rule, a one-me- tre parapet wall at roof level should be provided. Nevertheless, the Tri- bunal went to observe that in appel- lant's case, the building was already committed by virtue of a valid permit issued in 2014 and consequently ap- plicant had no viable alternatives. The Tribunal went further to note that "new development within the block, street or neighbourhood should endeavour to conform to the pattern set by the existing adjoin- ing development and/or the require- ments and conditions that have been applied to such development, so as to maintain the character of the area." After having regard to the street context, the Tribunal felt that the permit should be issued given that a 50cm wall would still have served its intended purpose. THIS was explained in a decision of the Industrial Tribunal as presided by Dr Katrina Borg Cardona of the 27th July 2018 in the names of Roger Debono v Gozo Hotels Company Limited con- cerning the unfair dismissal of Roger Debono from his employment as a Chef within Gozo Hotels Company Limited's establishment. In this case the Tribunal held that an employer's failure to confirm whether an employee wished to resign, when the al- leged intention has been disclosed to the employer by a third party, might give rise to a case of unfair dismissal. The dispute arose following the alleged verbal resignation of Roger Debono on the 9th July 2014 following an argument with the general manager of the employ- er's hotel. During that time, the hotel was experiencing considerable losses and the owner decided to engage a general man- ager in order to help the dire situation of the hotel. Mr Sammy Rapa was engaged as a general manager and he started making some changes in the operations of the hotel and implemented new prac- tices. As it resulted during the pendency of this dispute, the mode of operation of the general manager was not appreciated by the employees of the hotel, including the plaintiff Roger Debono. On the 9th July 2014, an incident arose where during a buffet in the hotel, a guest informed the general manager that the food was cold. As it transpired from the evidence, this resulted due to a malfunction in the electrical extension that the machinery due to keep the food warm was connected to. The malfunci- ton was fixed by sous-chef Lorry Portelli, but the latter and plaintiff Roger Debono were still scolded by the general man- ager because the sous-chef had absented himself from the buffet in order to fix the extension. Roger Debono told the general man- ager that he should not have spoken to the sous-chef in that manner since he had only left his place in order to fix the extension and only did so due to the fact that there were no maintenance person- nel available. At this moment, Mr Rapa and Mr Debono had a verbal argument and it was at this point in time that Mr Debono allegedly told Mr Rapa that he was going to resign from his employment. During the pendency of this case, Mr Debono refused having said that he was going to resign and in fact he continued with service normally for the remainder of his shift. Mr Rapa himself confirmed that Mr Debono returned to his job for the rest of the evening and the persons who were present during the argument testified that they had not heard Debono state that he wanted to resign from his employment. Following this incident, the general manager informed Dr Michael Caruana, the managing director of the defend- ant company with what had happened and a few days later Dr Caruana called for Mr Debono and handed him a letter signed by himself where Mr Debono had been informed that the company had ac- cepted his resignation following the ver- bal communication between the general manager and Debono. Dr Caruana had not spoken to Mr Debono after the in- cident and before issuing the said letter. The resignation was effective immedi- ately and no notice period was given. When analysing the facts of the case, the Industrial Tribunal held that the is- sue revolved around whether the plain- tiff had in fact resigned or whether his termination was unilaterally done by his employer. The Tribunal held that dismissal from employment is an ex- treme action and should never be taken without there being a valid reason and justification for that decision. From the evidence, it resulted that the employ- ers had solely relied on the version that was communicated to them by the gen- eral manager and failed to request Mr Debono to confirm whether he intended to resign from his position and to clarify whether he had truly divulged his wish to resign to Mr Rapa. The Tribunal also considered the fact that if Mr Debono had allegedly resigned from his employment, the employee would have owed a notice period to the defendant company but no such request was made by the employer and the res- ignation was effective immediately and Mr Debono was replaced by another chef on the same day. In view of the above, the Tribunal be- lieved that the abovementioned omis- sions from the part of the employer, favoured the plaintiff's argument in the sense that the termination of employ- ment was not due to him resigning but because of a unilateral decision by the employer to dismiss him. Having said this the Tribunal also held that the strained relationship between the general manager and Mr Debono and the verbal argument between the two, could have in a way contributed to the interpretation of Mr Debono's state- ment as being an intention to resign from work. Notwithstanding this the Industrial Tribunal decided that there was no valid justification for the termination of Mr Debono's employment and the employers had exposed themselves for the possibility of a claim for unfair dis- missal, when they relied on information disclosed to them solely via a third party without confirming the facts of the situ- ation with the interested employee. For these reasons the Tribunal held that the termination of employment in this case was unfair and there was no valid justification for this termina- tion and consequently Mr Debono was awarded the sum of €20,000 as compen- sation for his dismissal. Employer has to verify resignation claim when alleged by third party catherine@mifsudadvocates.com.mt ASK CATHERINE Dr Catherine Mifsud is an associate at Mifsud & Mifsud Advocates LAW robert@robertmusumeci.com ASK ROBERT Dr Robert Musumeci is an advocate and a perit having an interest in development planning law PLANNING 50cm screening wall at roof level deemed acceptable