Issue link: https://maltatoday.uberflip.com/i/1183404
| SUNDAY • 10 NOVEMBER 2019 maltatoday 15 AN employment contract is not one which is enlisted in Article 1233 which outlines contracts must be in writing on pain of nullity. Therefore, the Court can decide on the basis of the evidence before it whether an employee is owed the sum of wages promised by an em- ployer although not formalised in a written contract. This was held by Magistrate Caro- line Farrugia Frendo in the case of Mario Pisani vs KPM Marine Servic- es Limited on the 5th of November 2019. The court heard the pleas by the plaintiff who held that he was a li- censed captain who was approached by a certain Philip Cardona and Kevin Attard to work onboard their vessel MV Alice. He alleged that they agreed that he would go to Egypt and take the vessel to the Maldives and then return to Malta and embark again to the Maldives for a period of ten years. It was agreed that the plaintiff was to be paid EUR2000 per month for his services. In his first meeting with the defendants, Pisani was given the sum of EUR 750 as a guarantee that he would not take up any jobs with any other vessels. A few months later the defendants told Pisani that he had to immedi- ately fly to Egypt the following day and he claimed that the signing of the contract slipped his mind. Upon landing in Egypt he stated that the defendants assured him that his place was secure and that he would be giv- en a contract not long after. The plaintiff spent three months in Egypt living onboard the vessel Alice in less than favourable conditions. The Court heard evidence by his family members who stated that he regularly complained about his liv- ing conditions there, in that he had no kitchen or functioning shower and toilet. He recounted how a while later he was told by the defendants that their plans to contract with the Government of the Maldives fell through and that they could not pay him. After returning to Malta, Pisani was given EUR2,400 out of the agreed EUR18,424 he was promised. He stated how on the day he was given this sum of money he was also given a car of the make Toyota Starlet as a guarantee that he would be paid the rest of the money. Nonetheless, a while later the car disappeared and he claimed that the defendants had repossessed the car with all of his belongings, including the sum of EUR200 still inside. Be- cause of his financial situation, the plaintiff was sentenced to imprison- ment because he was unable to pay sums due for the maintenance of his daughter and remains to this day un- employed. The Court then heard the pleas by the defendant Attard who held that indeed they had agreed with the plaintiff on the sum of wages to be paid, however no contract was for- malised. He held that Pisani had gone to Egypt of his own accord as he was told by the defendants that the ves- sel was not yet ready. He stated that although plaintiff insisted on go- ing, there was no agreement that he would be paid for his duration of time in Egypt. The Court first considered the fact that since no written agreement was signed, it would have to rest on the evidence provided by the parties. It was held that in such cases, proof that there was an agreement could be brought in a variety ways, such as the admission by the defendants and also by means of circumstantial evidence. The Court held that in this case the fact that the plaintiff was given EUR 750 to not take up any other jobs, a fact confirmed in the defendants' tes- timony, showed that such an agree- ment had taken place and so the ef- fects of the contract began from that day. The Court also held that the fact that Pisani was paid EUR2400 upon his return to Malta also confirmed the plaintiffs' statement that he did not go to Egypt voluntarily, but that he was commissioned by the defend- ants to work on the vessel. The Court also relied on the docu- mentary evidence of emails provided by the plaintiff which show that he was making many preparations for his trip including the buying of ad- vanced maps for navigation. The Court, quoting the judgement Eucaristico Zammit vs Eustrachio Petrococchino(1952), held that al- though it is the role of the plaintiff to prove his case, in civil cases the role of the judiciary is to be morally satisfied of the evidence before it and conclude a case based on a balance of probabilities. It therefore concluded that the plaintiff's version of the story tallied with the evidence brought and with the circumstances following a verbal agreement between the parties. On this bases, the Court ordered that the defendants pay the sum asked for by the plaintiff minus the sum of EUR2400, already paid. They were also ordered to pay legal costs. Court awards sum of wages owed to employee although employment contract was not in writing LAW Dr Malcolm Mifsud is a partner at Mifsud & Mifsud Advocates Dr Robert Musumeci is an advocate and a perit having an interest in development planning law PLANNING AT issue was a planning application 'to construct a retirement home' in Mqabba. The site in question is cur- rently occupied by a water reservoir. For its part, the Planning Authority granted permission notwithstanding there being a number of objections from neighbouring residents. To jus- tify the decision, the Authority held that policy SMHO 02 of the South Malta Local Plan allows residential institutions provided that they are of a small scale and do not create an ad- verse impact on the residential amen- ity of the area. The proposal was also justified on the pretext that the site was located in close proximity to the town or local centre. Moreover, the Authority reasoned out that Thematic Objective 2 of the SPED 'guides the location of social and com- munity facilities to within the urban area' - in the present case, the home was to host 89 beds, hence considered of a 'small scale' . Following the decision, the objec- tors decided to lodge an appeal before the Environment and Planning Review Tribunal. In their appeal, the objectors made a specific request to have the per- mit revoked. In their arguments, the third party appellants observed that the eventual construction would eliminate a water reservoir that diverted the storm- water during heavy rains in an otherwise flood prone zone. Reference was indeed made to the Local Plan, which desig- nates the area as one that was prone to flooding. It followed that the area was not des- ignated to be developed. It was further held that a flood risk assessment re- port was commissioned by applicants without their knowledge, less so their involvement. The objectors contended that notwithstanding there being an- other permission to build a reservoir close by, works in that regard were nev- er taken in hand. As a final point, it was pointed out that the site was close to a busy arterial road and to make matters worse, the approved plans failed to meet the parking space requirements set out in the policy. In reply, the case officer stood by the Authority's decision to issue the per- mit. While it was true that the site was prone to flooding, the existing reservoir would, contrary to what the objectors asserted, remain intact since construc- tion was to take place above street level. Moreover, the Tribunal was reminded that 'another permit to support the ex- isting Reservoir in order to improve the current well-known flooding situation' was issued. In addition, the officer noted that the site was in close proximity to the Mqab- ba village centre, that being 'an ideal location for a retirement home' since it would make community facilities avail- able to 'older persons who require long-term care facilities.' Concluding, the Tribunal said that it was satisfied that there were no issues insofar as the stormwater and associat- ed flooding risks were concerned. Hav- ing said that, the Tribunal warned that part of the development footprint was to occupy an area designated as a pub- lic open space in the South Malta Local Plan. This implied that prior to deciding that a retirement home was acceptable, the Authority was obliged to 'determine the acceptability of development' in light of the zoning conditions as well as any other relevant material planning considerations relating to the site and to its context. The Tribunal found that the Authority had evidently failed to carry out such as- sessment. For this reason, the Tribunal annulled the permit and requested the Authority to reassess the proposal in line with the zoning conditions. Mqabba retirement home back to the drawing board robert@robertmusumeci.com ASK ROBERT mmifsud@mifsudadvocates.com.mt ASK MALCOLM LAW & PLANNING