Issue link: https://maltatoday.uberflip.com/i/1137604
maltatoday 17 | SUNDAY • 30 JUNE 2019 CULTURE ENVIRONMENT LAW & PLANNING AT issue was a development plan- ning application entitled 'to remove rubble material deposited by third parties and raising of level of field by depositing soil' in a field located out- side the development zone of Mgarr. The proposal was an attempt to conceal construction debris, having been deposited by a 'third party', with a layer of agricultural soil. The said application was, however, refused by the Planning Commission for the following reasons: • The proposed soil deposi- tion ran counter to paragraph 2.8(1) of the Rural Policy and Design Guidance 2014 in that the location of the site was lo- cated within an area of ecologi- cal importance; • The field was also located within an area characterised by karstic/garigue features; • The proposal could not be con- sidered further since there was 'illegal dumping of inert mate- rial and land reclamation on site'. Following the said decision, ap- plicant filed an appeal before the Environment and Planning Review Tribunal insisting that the Commis- sion's decision should be overturned. In his appeal submission, applicant (now, appellant) pointed out that the deposited rubble was 'partly re- moved'. While admitting that it was not possible to revert the field to its pris- tine condition, appellant explained that the construction debris was deposited with a view to enable the eventual reinstatement of the area with a soil layer. Moreover, appellant submitted that, contrary to what the Authority had alleged, there were no garigue/ karstic features in the vicinity of the site in question. It was also maintained that 'the proposal shall give better access to small agricultural machinery that is required to work the fields'. As a final point, appellant contend- ed that, in any event, 'it was not pos- sible to revert this field to its original state'. In its assessment, the Tribunal ob- served that, on the one hand, the Authority was insisting the site was characterised by garigue and karstic features whereas applicant had said that the deposited material was in- tended to receive a layer of soil, now that it was impossible to reinstate the area to its original state. The Tribunal noted that the Au- thority was correct to state that the site in question was previously char- acterised by garigue features. Although the tribunal considered that applicant's actions were deplor- able, it noted that the site in ques- tion bordered a piece of agricultural land. For this reason, the Tribunal held that the permit could be approved, subject to a fine of €2,329. robert@robertmusumeci.com ASK ROBERT Dr Robert Musumeci is an advocate and a perit having an interest in development planning law PLANNING Re-instatement of area with soil permitted A Union cannot finalise an agree- ment with an employer without the explicit consent of the member. This was held in a preliminary decision delivered on 21 June 2019 by Mr Jo- seph Gerada in Doreen Saliba v Fos- ter Clark Products Ltd. Doreen Saliba filed the action after alleging that her resignation was in fact a constructive dismissal. The company filed a number of pleas, the first two were that there was an agreement between the par- ties and this agreement was binding. Another plea was that the action was time barred in terms of Article 75 of the Employment and Industrial Re- lations Act. The Tribunal was asked to decide on these two pleas. Mr Gerada analysed the evidence brought before him. With regard to the first plea on whether an agree- ment was reached the GWU repre- sentative had discussions with the company in order to come to a set- tlement on compensation. There were email exchanges between the two and it seemed that they reached an agreement on a financial figure. The Union had also said that Saliba had agreed to the sum and the com- pany had prepared a cheque for Sali- ba to collect. Saliba had testified in these proceedings and explained to the Tribunal that when the Union's official rang her, he not only in- formed her of the sum agreed upon, but asked her to collect the cheque. At that point Saliba went to another lawyer. She claimed to have never agreed with the Union to accept this sum and that she was unaware that the Union had accepted and agreed to this sum. The Tribunal noted that Saliba had worked with the company since May 2014 and she had sent her letter of resignation in August 2018 and de- scribed this resignation as a con- structive dismissal. On receiving the resignation, both parties were dis- cussing on how to fix the problem, however, the problem was never solved. From the Union's point of view it was negotiating within parameters to obtain the best compensation for their member. Both the Union and the company had come up with dif- ferent figures, but then agreed on one figure. The Tribunal held that Saliba's ver- sion was more credible. Unions have a right to give advice on most aspects on industrial issues and represent their members before their employ- ers. However, a Union cannot decide instead of its members and take deci- sions without their approval. In this case the agreement was not signed by Saliba and therefore the Tribunal turned down the plea that there was an agreement between the two. With regard to the second plea on whether the action was time barred, the Tribunal held that Article 75(3) of the Employment and Industrial Relations Act gives four months for one to file an action. The resignation took place in August 2018, but the employee stopped work in October 2018 and the action was instituted in January 2018. The company argued that the resignation was a voluntary one and therefore the four months should have started in August 2018. Saliba argued that there were miti- gating circumstances to justify that the prescriptive period started be- yond this date. The Tribunal comments that when someone resigns because the person feels forced to do so, this is a seri- ous thing. In this case Saliba felt that she was being treated unjustly when her duties were changed, although she was earning the same wage. She had received working instructions and in such circumstances there may be a dilemma on the part of the employee that if she disagrees she can face disciplinary proceedings or termination of employment or else the employee may be forced to re- sign. Saliba adopted the last option. She testified that discussions contin- ued after she tendered her resigna- tions with a view to come to some agreement. But it was clear that no agreement was reached. This took place during her notice period and therefore, since there was hope of an agreement, the termination was not on the date of resignation, but when she actually stopped work in Octo- ber 2018. Therefore, this plea was also turned down. Union cannot decide instead of member LAW mmifsud@mifsudadvocates.com.mt ASK MALCOLM Dr Malcolm Mifsud is a partner at Mifsud & Mifsud Advocates