Issue link: https://maltatoday.uberflip.com/i/1197486
| SUNDAY • 5 JANUARY 2020 maltatoday 13 Dr Malcolm Mifsud is a partner at Mifsud & Mifsud Advocates AN appeal application purely based on the disagreement with the analy- sis of the Industrial Tribunal with regards to the facts of the case shall be rejected by the Court of Appeal. This was held by the Court of Appeal presided by Hon. Judge Joanne Vella Cuschieri in the case of Carmen Ab- ela vs Centro Management Limited decided on the 12th of December 2019. The Appeal was filed following a decision of the Industrial Tribunal between the same parties that was decided on the 24th January 2019. Carmen Abela had been employed with the defendant company as a Sales Assistant on a part-time basis for a pe- riod of around eleven months. She had been employed on a definite basis for a period of three months which period could be automatically renewed for a further period of three months up to a maximum of four years. On the 18th November 2016 she received a letter where she was informed that her em- ployment contract was not going to be renewed and therefore her employment was going to be terminated on the 30th November 2016. Carmen Abela filed a complaint before the Industrial Tribu- nal wherein she argued that her em- ployment had been terminated unjustly and without there being a valid reason at law. She also requested the Industrial Tribunal to declare her reintegration in- to employment and to be awarded dam- ages for the unfair dismissal from work. When considering the facts of the case the Industrial Tribunal found that the definite employment contract Abela had with the defendant company had not been renewed, and therefore re- jected her claim that she had been un- justly dismissed from her employment. The Tribunal agreed with the defendant company's claim that they terminated the applicant's contract in accordance with the contract they had both signed, wherein Abela was to be employed for a recurring period of three months at a time. This period was to be automati- cally renewed for another three months unless the employer decided to termi- nate the contract, in which case a week's notice had to be given to the employee. The contract also stated that whichever party terminated the employment con- tract before the end of the three-month period had to pay half the sum of the wages due until the end of that men- tioned period. The Tribunal commented on the ad- ministrative shortcomings of the com- pany and stated that the way in which they handled the employment of their staff was disorganised. Nonetheless, it noted that when the letter of termina- tion of the contract was sent to the ap- pellant on the 18th of November 2016, in it was enclosed a cheque for half of her wages up until the end of that current three month period, which happened to be the 30th of November of the same year. Thus, although the employment contract was far from ideal, the employ- ers had every right to terminate the con- tract and did so in accordance with the agreement that both parties had signed. Furthermore, the Tribunal held that the plaintiff was not owed any compensa- tion for the termination as she had al- ready received what she was due. Abela felt aggrieved by this decision and filed an Appeal before the Court of Appeal. The Court of Appeal heard the pleas by the appellant who disagreed with the Tribunal's appreciation of the evidence presented by both parties. She stated that the Tribunal mistak- enly held that she started working with the defendant company on the 23rd of November 2015 since she had started working with them on another date. She also requested the Court of Appeal to allow her to present new evidence which would be able to prove that she started working with the company in December of that same year. On this point, the Court of Appeal agreed with the defendants that all proof had to be submitted at the Tribunal stage and refused to allow the production of new evidence. In considering the decision of the Tri- bunal, the Court of Appeal held that it agreed with the Tribunal's conclusions after considering the statements of vari- ous witnesses and the documents pro- duced by the parties. The Court of Ap- peal also stated that the date of the start of employment does not affect the case since the claim revolved around wheth- er the appellant had been notified in time and in accordance with the agree- ment regarding the non-renewal of her employment contract following the end of the term ending on the 30th Novem- ber 2016. The Court of Appeal agreed with the decision of the Industrial Tri- bunal that the notification sent on the 18th November 2016 was in accordance with the agreement signed between the parents and within the time frame of one week notice. Moreover, since the appeal was based on a point of fact and not a point of law, the Court of Appeal rejected the appeal application on the basis of Article 82 of the Employment and Industrial Relations Act, Chapter 452 of the Laws of Malta which states that in cases of unfair dismissal there shall be a right of appeal on a point of law. Therefore, the appeal was rejected, and the appellant was ordered to pay all costs. 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