Issue link: https://maltatoday.uberflip.com/i/1082991
maltatoday 13 | SUNDAY • 17 FEBRUARY 2019 CULTURE ENVIRONMENT LAW & PLANNING AT issue was a planning application involving the sanctioning of a setback floor which was not built according to permit In actual fact, the facade of the setback floor was receded 4.02 metres from the façade instead of 4.20 metres as prescribed in the pre- vious permit. As a matter of policy, 'a building shall not exceed the permissible height as established in the Local Plans', which height 'includes the provision for any setback floors and services, as well as an obligatory 1-metre parapet wall on the exposed façades at the uppermost roof level.' Moreover, no elements or struc- tures, except for awnings, are allowed to encroach within the permissible setback. In essence, this means that any setback floor must lie within the permitted overall building envelope. Following analysis of the submitted drawings, the Commission turned down applicant's request for the fol- lowing reasons: The proposal included a setback floor which ran counter to policy (namely, the provisions of policy P39 of the Development Control De- sign Policy, Guidance and Standards 2015) since the building encroached within the permissible setback; The proposal was deemed to run counter to the 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. In reaction, applicant lodged an appeal before the Environment and Planning Review Tribunal. In his ap- peal, plaintiff (applicant) stated the following: • Whilst acknowledging that the setback floor encroached within the 'permitted setback', the extension was minimal, that is to say 38 centi- metres; • In any case, the height of the build- ing was lower than what was allowed by policy; • Were the building to be construct- ed higher, the encroachment would not be visible from public view; According to policy, 'a one metre cantilever at the roof over penthouse level' was acceptable. In reply, the Authority reiterated the idea that applicant's proposal was in breach of policies P35 and P39, which state that no part of a building should be visible from street level. In its assessment, the Tribunal how- ever noted that the only reason for refusal concerned the setback floor. The Tribunal went to observe that the alterations carried out by applicant were minimal, resulting in no con- siderable visual impact. On this basis, the Tribunal ordered the Authority to issue the permit even though the setback floor was, strictly speaking, in breach of policy requirements. robert@robertmusumeci.com ASK ROBERT Dr Robert Musumeci is an advocate and a perit having an interest in development planning law PLANNING 38cm encroachment over roof terrace deemed 'minimal' AN employer may dismiss an em- ployee on the spot but this is permit- ted in limited cases. This was decid- ed by the Court of Appeal presided by Mr Justice Anthony Ellul on 11 February 2019 in Marco Pisani v the AV Warehouse. Pisani filed an application before the Industrial Tribunal after he claimed that he was unjustly dismissed from his employment and was not given a warning. The Company replied that the termination was justified. The Industrial Tribunal decided the case in the company's favour. Pisani lodged an appeal in that there was no evidence against him and that a par- ticular incident was not his fault and also, it was the company that failed to give health and safety equipment. The Court of Appeal quoted from Art 82(3) of the Employment and In- dustrial Relations Act, which allows dismissal only for a just cause which will be decided by the Industrial Tri- bunal and a right of appeal on a point of law. The Court also quoted from previ- ous judgements such as Eileen Leone Ganado v Link School of Languages Ltd decided on 28 April 2017 which held that the Court will have to de- cide whether the conduct of the em- ployee was negative and if it was neg- ative it should have led to dismissal. In Nathania Mifsud v Sterling Jewel- lers, decided on 12 December 2016 held that the Court has the compe- tency to examine the evidence to see whether the Industrial Tribunal fol- lowed the principals of law. In this case the Tribunal considered the two versions and believed more the employer's version of events. The employee was asked to im- prove his performance on numerous occasions. The last straw was when he was navigating a fork lifter where items had fallen off and were dam- aged. The Tribunal held this was suf- ficient for Pisani to be dismissed. Mr Justice Ellul dealt with the grounds of appeal, mainly that the Tribunal did not have sufficient evidence to arrive to its decision. The Court delved into the evidence produced, which included the com- pany's employees. The company's project manager testified that Pisani was negligent and had once even left work and returned after a year. He remained negligent, he also started work late, forgot things behind him and damaged the company's equip- ment. Due to all this Pisani was given a number of warnings. This was ech- oed by the director of the company, the administrative secretary and a fellow employee. Pisani testified that he was em- ployed as a rigger but did a bit of eve- rything. He denied he was negligent at work and it was others who forgot things when they went on a job. He quoted a case when he had to return to Gozo, because his director had forgotten something. He also denied that he received any warnings be they written or verbal. With regard to the last incident, he explained that there were boxes on the lift. Anoth- er employee Kyle Saliba was on the floor above him. When he placed the boxes safely, he informed Saliba that he was going to the toilet. Then he heard a crashing noise. The Court concluded that it was true that Pisani received warnings, but no details were given. However, this does not mean that he was re- sponsible for the accident. The re- sponsibility of that accident had to be established in a proper manner. Pisani was summarily dismissed, since the Director of the company assumed that once Pisani was navi- gating the fork lifter, then he was responsible for the damage caused. Neither the director nor the man- ager were present during the acci- dent. Kyle Saliba was the only other employee present at the time. Saliba failed to turn up to testify. Pisani was not given the opportunity to explain himself. The Court also looked at the photos of the fork lifter and noted that it was not in line with health and safety regulations. The Court of Ap- peals was of the opinion that it was up to the company to prove how the boxes fell, which it failed to do. The fact, that Pisani was negligent on pre- vious occasions does not mean that he was negligent on the last incident. Mr Justice Ellul overturned the Tri- bunal's decision by declaring that the termination of employment was un- justified and awarded Pisani €5,000. Summary dismissal of employees is the exception not the rule LAW mmifsud@mifsudadvocates.com.mt ASK MALCOLM Dr Malcolm Mifsud is partner at Mifsud & Mifsud Advocates