Issue link: https://maltatoday.uberflip.com/i/1066826
maltatoday 13 | SUNDAY • 30 DECEMBER 2018 CULTURE ENVIRONMENT LAW & PLANNING At issue is an appeal filed from a neigh- bouring objector after the Planning Authority issued permission for the demolition of a two-storey dwelling and the subsequent construction of 12-unit guesthouse. The site in question is lo- cated within the development scheme of Msida. Prior to the decision, the neigh- bour had objected to the proposal, alleg- ing that one of the windows in his prop- erty would be blocked as a result of the new construction. In his appeal before the Environ- ment and Planning Review Tribunal, the neighbour insisted that permission should not have been granted. In his ap- peal, the objector highlighted the follow- ing arguments: • Applicant had allegedly modi- fied the plans during the process of the planning application, 'deliberately' omit- ting the presence of the window at issue in both existing and proposed plans'. For this reason, applicants' architect was ac- cused of 'clearly trying to paint a very different picture to what is actually the situation on site'; • The window in question was covered by a planning permit; • In addition, the interventions ran counter to sanitary regulations since the room in which the window was lo- cated would be rendered inhabitable; • The envisaged construction would introduce further apertures over- looking objector's property, giving rise to an additional servitude; • The Authority was wrong to dismiss his objections on the pretext that such issues were considered as 'third party civil rights' falling within the com- petence of the Courts; In reply, the Planning Authority re- butted by stating that the proposed development was in line with policy re- quirements. The Authority held that it would not 'enter into third party issues for the issuing of a permit' since it was precluded to do so. Moreover, the case officer observed that, contrary to what the objector had alleged, the window at issue was 'not essential from a sanitary point of view'. For his part, the permit holder con- tended that the window in question was, in reality, illegal. This was due to the fact that it was built in a party wall and had been in existence for less than 30 years. In fact, it was explained that this win- dow was 'created some time between 1999 and 2001'. More so, the permit holder underlined that no public deed was found to attest that the window was legal. In its assessment, the Tribunal saw that the objector had insisted that applicant's architect should have indicated the win- dow at issue on the drawings since it formed part of the precincts under ex- amination. Nevertheless, the Tribunal held that such issues went beyond its remit, since 'real rights' are regulated by the Civil Code. Consequently, the Tribu- nal concluded that such matters should be resolved before a Court of Law. On this basis, the permit was confirmed. THE Court of Appeal agreed with an employer which gave a warning to the employee for liking the Facebook page of its competition. This was held in a judgement delivered by Mr Jus- tice Anthony Ellul on 18 December 2018 in Charichelon Company Lim- ited -v- Alkida Rama. The plaintiff company Charichelon Company Limited had filed an action against a former employee, Alkida Rama, asking her to pay €6,900 for terminating her employment, which was in breach of her employment contract. Rama filed a statement of defence saying that she had sufficient grounds to terminate, since she was not treated well, she was forced to work excessive working hours and had her leave disap- proved on numerous occasions. The Magistrates' Court upheld the company's claim and ordered Rama to pay the company €6,900. Rama ap- pealed on the ground that the first court should not have concluded against her and that she had to leave work because of a cause and justifiable cause and the court should also not have liquidated the damages. The Court of Appeal held that the concept of a good and sufficient cause to terminate one's own employment is wide and did include constructive dismissal. The former employee com- plained that her working environment was oppressive. She had difficulties on using her vacation leave. She had an in- cident where he liked a Facebook page of a competitor and the employer's reac- tion was out of proportion. She argued that she was a victim of constructive dis- missal. She explained that in December 2012 she was 58.16 hours a week, while in January 2013 she worked 64.8 hours per week. This situation of long hours work caused tremendous stress and on one night she slept on the wheel of her car. She claimed that this was contrary of the Organisation of Working Time Regulations. Although she was promot- ed the pay and the added responsibilities did not add up. The Court of Appeal analysed the Magistrates' Court judgement, which held that Rama failed to show to the court that there was sufficient cause to resign, without facing any legal conse- quences. She worked with the company for a long time and started as a make-up artist and was promoted to an assistant manager. She showed her appreciation of the promotion by writing an email. The First Court did not understand why she complained that the promo- tion brought with it additional responsi- bilities, which was a natural and logical consequence. She was also sent to man- agement courses and she thanked the company in another email. Her resig- nation letter included appreciation for the opportunities the company gave her she was in employment with them. The company on the other hand tried to have good relationship and her resigna- tions was out of the blue. As to the inci- dent when she liked the products of their competition, the company said that all they did was draw her attention to this by means of an email. As to her applica- tions of leave, these were approved 88% of the time. From the punch clock read- ings, Rama worked for an average of 45.7 hrs per week. The Court of Appeal held that Article 36(14) of the Employment and Indus- trial Relations Act reads: (14) Notwithstanding the foregoing provisions of this article, an employer may dismiss the employee and the em- ployee may abandon the service of the employer, without giving notice and without any liability to make payment as provided in subarticles (10), (11) and (12) if there is good and sufficient cause for such dismissal or abandonment of service" As to the breach of contract, the court quoted from Cavendish Hotels Limited -v- Jesmond Beck, which held that the concept of good and sufficient cause, although not defined in the law, meant it brings about lack of trust between the employer and employee. As to the vacation leave, the court held that there is nothing wrong with em- ployers asking their employees to plan their vacation leave. From the evidence produced in almost 2 years her leave was not approved on 6 occasions from 51. It was true that she was asked to join a meeting on one occasion when she was on leave. On another occasion, her leave was not approved but just the same, she did not report for work. The Court pointed out that it is true that vacation leave is the employees right, but it does not have to be approved everyone. The Court of Appeal gave an example of a clash between employees applications. It is also understandable that the employer asks the employees not to take leave in a particular part f the year. The Court held that vacation leave should be a welcome break from work and preferably the ap- pellant should not have been asked to join a meeting when she was leave, but from the records this was once and for less than an hour and she left for the rest of the day. As to the like she pressed on a com- petitor's Facebook page, Mr Justice Ellul, held that Facebook is public and it was not a closed page and therefore, every- one could see that she was approving the company's competition. Therefore, the company was correct to draw her atten- tion to this. As to whether she was ordered to work excessively and beyond 53 hours a week, the court held that this allegation was not proved by Rama, but from the Court's calculations this was less. In Decem- ber 2012, she works for over 60 hours a week. The Court pointed out that there is no evidence that she objected to this. The employed contract stipulated that both the employer and employee had to agree whether she worked more than 48 hours a week. The employment contract also stipul- tes that the employee could resign but had to give 3 months notice. It seems that there was no notice. From the evi- dence produced there was no evidence of difficulties between the employee and her superiors and this was emphasised in her written resignation. The Court then moved to turn down the appeal. Don't press like on the competition's Facebook page LAW robert@robertmusumeci.com ASK ROBERT Dr Robert Musumeci is an advocate and a perit having an interest in development planning law PLANNING Tribunal not competent to decide about blocked window mmifsud@mifsudadvocates.com.mt ASK MALCOLM Dr Malcolm Mifsud is partner at Mifsud & Mifsud Advocates