Issue link: https://maltatoday.uberflip.com/i/1372546
maltatoday | SUNDAY • 16 MAY 2021 19 When resigns not because he wants to but because of the sit- uation he or she is found at the place of work, is termed con- structive dismissal. This was held in a decision delivered by the Industrial Tribunal chaired by Mr Joseph Gerada on 7 May 2021 Doreen Saliba -v- Foster Clark Products Limited. Doreen Saliba filed an applica- tion in January 2019, where she claimed that there was a con- structive dismissal, since she felt she had to resign after her employer changed the nature of her work. She was ordered to work as a cleaner, but she had been promoted to Housekeep- ing Leading Hand. The Compa- ny rebutted this by saying that there was no constructive dis- missal since as she had volun- tarily resigned and worked un- til the end of the notice period. The Tribunal analysed the ev- idence brought before it. Saliba testified that she was employed as a part time cleaner in May 2014, but soon she received rap- id promotions until she reached the post of Housekeeping Lead- ing Hand. However, in August 2018, Saliba received instruc- tions that she should help the cleaners and was to start again wearing the cleaners uniform. Saliba informed her superiors that this was unacceptable and tendered her resignation. In the meantime, she approached the General Workers Union and was offered a compensation of €12,000 by the company. This was rejected. The Tribunal quoted from a Court of Appeal judgement Rodrick Azzopardi -v- Mal- ta Public Transport Services (Operations) Limited and de- scribed constructive dismissal where an employee is forced to resign against his/her will. As a consequence, the Tribunal had to examine the reasons for the resignation and weigh the rea- sons for the resignations to see whether any of the employment contract had been breached. The Tribunal also had to see whether there was a complaint procedure at her place of work, and time between the com- plaint made and the resigna- tion. In Sarah DeMarco -v- Malta University Residence Limit- ed, the Tribunal had quoted from the author Judge Arnold who held, "… in order to justi- fy a conclusion of constructive dismissal one has to consid- er whether the conduct com- plained of constitutes either a fundamental breach of the con- tract or a breach a fundamental term of the contract." In anoth- er Court of Appeal judgement, the court used what it termed as the "contract test" where it would examine the employer's behaviour and see whether the employer intended to observe the conditions of the employ- ment contract. In this case, a manager of the employer testified that the company was noticing that Saliba and the Housekeeper spending too much time to- gether and there was no need to work together. As a conse- quence, Saliba was instructed to put on the cleaners' uniform and was as a cleaner. Saliba felt that felt humiliat- ed, irrespective of the fact that the company wrote to her that she would maintain her status as Lead Cleaner. However, the Tribunal pointed out that in reality this was a demotion and the position of Lead Cleaner did not continue to have the same sense as it had before. This decision suggested that the employer had a lack of un- derstanding of the employee's wellbeing and that money was not everything. When manage- ment gives an employee au- thority and responsibility and then removes it, then it is con- veying a negative message. This would embarrass the employee and this is what took place in Saliba's case. When the order given by management was not accepted, then the company did not want that the contract of employ- ment to continue. In this case, Saliba hoped that the injustice be rectified, but it was not and was only interested in a finan- cial settlement. The Tribunal ruled that the company had breached Sali- ba's fundamental conditions of work. Saliba was not allowed to give her opinion on the instruc- tions given and it was a "take it or leave it" situation. The Tribunal noticed that Saliba resigned immediately, although she was advised by manage- ment to follow the instructions and then one could see later. As to compensation the Tri- bunal ordered the company to pay Saliba €31,600 within 6 weeks. LAW CLASSIFIEDS CLASSIFIEDS INFO @MEDIATODAY.COM.MT Constructive dismissal takes place when employee is forced to resign against his will H O L I D A Y 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. 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