Issue link: https://maltatoday.uberflip.com/i/1315450
maltatoday | SUNDAY • 6 DECEMBER 2020 15 THIS was decided by the In- dustrial Tribunal on the 1st De- cember 2020 in the case filed by Giulia Gattuccio against her former employer Suda Enter- tainments Ltd, claiming unfair dismissal. Gattuccio started working as a waitress in a restaurant of the Defendant Company on the 22nd December 2016, which employment was terminated on the 22nd July 2018. The issue arose when although the applicant was not in charge of a particular table, she was re- quested to serve a cheesecake to that table. The applicant re- fused to serve that cake since it was in a bad condition due to being taken out of the refrigera- tor more than one hour before. After having refused to serve the cake, the Manager instruct- ed the applicant to leave the restaurant and to return to work the following Monday. However, when Gattuccio re- turned to work, the Manager informed her that if she does not apologise in front of her col- leagues, she will be dismissed. The applicant claimed that the refusal to serve the cake was not an act of defiance, rather it was done for the restaurant's bene- fit. Therefore, Gattuccio believed that she should not apologize in the humiliating circumstances imposed. Whereas the applicant initiat- ed this case on the grounds of unfair dismissal, the Defendant Company declared that the ap- plicant resigned from her em- ployment, claiming that after 22nd July 2018 the applicant did not report to work without giving any prior notice. The Defendant Company held that there was an argument be- tween the applicant and anoth- er colleague, and the former did not want to work and collabo- rate with the latter. Due to this, the Manager in- structed the applicant to return to work the following Monday. However, the Defendant Com- pany insisted that there was no dismissal from employment, let alone an unjust dismissal. Conversely, the applicant claimed that the manner in which the Manager acted showed that the applicant's em- ployment will be terminated unless she humiliates herself and issues an apology in front of her colleagues. The applicant further held that despite any arguments that may have arisen between her and one of the colleagues, they always collaborated with each other. The Industrial Tribunal con- cluded that the Defendant Company's claim that the appli- cant did not cooperate to serve the cake due to disagreements with her colleague is unfounded since the evidence conveys that the order to serve the cake was issued by the Manager and not by her colleague. The importance of discipli- nary procedures was empha- sized by the Industrial Tribunal. The evidence presented con- veyed that the Defendant Com- pany is not aware of what a dis- ciplinary process entails. In fact, neither the General Manager nor the Manager were able to explain or show that they are aware of the existence of disciplinary processes, high- lighting the fact that no such process was implemented. The Industrial Tribunal held that a disciplinary process should have been followed prior to the termination of employ- ment, particularly since there were no verbal nor written re- cordings of warnings, abuse or negligence against the ap- plicant, and the evidence con- veyed that the applicant always carried out her work properly and professionally. The Tribunal held that there was a termination of employ- ment rather than an abandon- ment. Malpractice and lack of seriousness on the part of the Defendant Company was re- flected not only through the termination of the employment itself but even in the manner such termination was manifest- ed. Refusing to go against a prin- ciple by refusing to issue an apology in front of colleagues, which apology should not have been requested in the first place, is not tantamount to Construc- tive Dismissal. Constructive Dismissal does not arise in situations where an employee refuses to accede to the request to humiliate herself, in the absence of which she will be dismissed. The Industrial Tribunal fur- ther held that there is no aban- donment where there is an unbearable situation which constrains the employee to leave the employment. In this case, the employee did not even have the chance to choose be- tween what is bearable and not. Therefore, the Industrial Tri- bunal decided that there was no abandonment of employment nor a constructive dismissal. Following these considera- tions, the Industrial Tribunal concluded that the employ- ment termination was unjust and consequently ordered the Defendant Company to pay five thousand and sixty four Euro and twenty one cents (€5,064.21) to the applicant, which sum shall be paid within a month from the decision. COMMERCIAL CLASSIFIEDS CLASSIFIEDS INFO @MEDIATODAY.COM.MT Disciplinary processes required before serious decision to terminate employment HOLIDAY ACCOMMODATION MARSALFORN, Gozo - holiday apart- ments for short or long lets with mag- nificent sea-views. Call 21556021, 27556021, 79426883 PROPERTY TO LET XLENDI - catering premises in prime site to let. Can be used for other com- mercial purposes. Phone 79493021, 79426883, 77481592 or 77484029 PROPERTY FOR SALE QAWRA – Calling all developers this is an ideal development opportunity. 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