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MALTATODAY 20 February 2022

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maltatoday | SUNDAY • 20 FEBRUARY 2022 15 LAW COMMERCIAL IF an employee feels that the em- ployer is humiliating him or her, then the decision to leave must be immediate, in order for not to be an indication of an agreement with the employer's action. This was held by the Court of Appeal, presided by Mr Justice Lawrence Mintoff, on 2 February 2022 in Doreen Saliba -v- Foster Clark Products Limited. Saliba had filed her case before the Industrial Tribunal as she claimed a constructive dismissal after she felt that she was being demoted. Saliba worked with the company since 2014 as a cleaner. She was promoted twice when she became a housekeeping leading hand in 2016 and in 2018, she was asked to become a cleaner again and put on her uniform. Saliba resigned and worked here notice period. There were at- tempts to settle the issue, but these failed. The Industrial Tribunal saw the documents presented and it showed that according to the memo she received in September 2018, Saliba was to remain with the same conditions, however, she was to work as a cleaner during the company's lean period and substi- tute the housekeeper when she is absent. The defendant company argued that the case should not have been heard because four months have elapsed from the date of the resig- nation as stipulated by Article 75 of the Employment and Industrial Relations Act. It also argued that the case is of a normal resignation and the elements of the construc- tive dismissal did not exist. In the Industrial Tribunal pro- ceedings, a representative of the General Workers Union had tes- tified that there was an agreement for an out of court settlement with the company, which was prepared to pay a sum to Saliba. Saliba ar- gued that she did not authorise this settlement and was not in agree- ment with the sum agreed upon. Saliba testified before the Tri- bunal that as an assistant house- keeper she had a number of re- sponsibilities such as stock taking and purchase of supplies. She was informed by the housekeeper that she had to put on her uniform and work as a cleaner once again. He felt humiliated and decided to re- sign. The company management testified and held that she resigned because she was in disagreement with the new instructions given. Management offered Saliba to fol- low the grievance procedure. They explained that employees should be flexible because there are pe- riods where the company has less work in some months. The Industrial Tribunal decided in favour of Saliba awarding her €31,600. It argued that accord- ing to another Tribunal decision Sarah De Marco -v- University of Malta, which quoted from an English judgement: "in order to justify a conclusion of construc- tive dismissal one has to consider whether the conduct complained of constitutes either a fundamental breach of the contract or a funda- mental breach of a fundamental breach of a fundamental term of the contract." In another case the Tribunal had said that constructive dismissal is in fact a contract test. The Tribu- nal pointed out that the company's management had testified that they were not happy to see Saliba and the housekeeper do the same work and it was the CEO who gave the instructions that Saliba should start cleaning again. The Tribunal concluded that this was a demo- tion. The company had decided that if the order was not to be fol- lowed then the company will not continue with the contract. Saliba had hoped that there would be a solution, but the company merely offered a settlement package. The company appealed arguing that the Tribunal was wrong to interpret what happened as con- structive dismissal. The company also appealed from a partial judge- ment delivered by the Tribunal wherein it had allowed the pro- ceedings to continue irrespective of the fact that the company and the union had reached an out of court settlement, but acknowledg- ing that Saliba did not authorise this settlement. On the first ground of appeal, the company explained that the English courts have listed two elements of constructive dis- missal. The first is that there must be a breach of the contract or else the employer undermined the em- ployee's trust. The second element is that the employee's reaction should be immediate. The compa- ny argued that there was no breach of contract and the measure it took was temporary. Although the ter- mination of the employment was not immediate, as she worked all her notice period. As to the second ground of ap- peal the company complained that the partial decision of the Tribunal was erroneous as the parties had agreed in terms of Article 992 of the Civil Code. The company al- so held that the Tribunal failed to explain how it arrived to the award of €31,600. Saliba rebutted this appeal and held the Tribunal's de- cision was fair. She held that from the circumstances of the case, it was clear that the company's ac- tions were unacceptable. The or- der for her to work as a clear was never withdrawn and there was very little discussion about the is- sue after she presented her resig- nation. As to the second ground of appeal, Saliba held that the partial decision was appealed on but not on this ground and therefore, the Court of Appeal decision on the partial decision was final and not appealable. The Court of Appeal first ana- lysed the issue whether the ter- mination of employment con- stituted a constructive dismissal. The Court held that although the company had a right to order Sali- ba to report to other departments, the facts show that she offered in her letter of resignation to resolve the issue. The company instead were negotiating to pay her to leave. If it was not for the fact that she was asked to wear a uniform again and do cleaning duties, Sal- iba would not have left the com- pany's employment. The Court felt that Saliba was right to feel humiliated and once her offer to find a solution was rejected, there was no option for her to resign and effectively leave. He criticised the company for not approach- ing Saliba to explain the reasons behind the order. There was no serious attempt to save Saliba's employment. The Court quoted from William Saliba -v- Avukat Dr Louis Cassar Pullicino noe decided on 9 May 1997, where the Court held that there is no definition of constructive dismissal under Mal- tese law and therefore, allows the court to give an interpretation. In this case Saliba's decision to offer her resignation was quick after she learned of her instructions. On the other hand the company was reluctant to come to some settle- ment. The company wanted to pay Saliba and close the issue. The Court held rejected this ground of appeal. The Court also rejected the second ground of appeal, because the company had already an op- portunity to appeal from the par- tial judgement, but failed to raise the issue on whether the was an agreement on the amount of com- pensation. The Court then dealt with the last ground of appeal, where it agreed with the company in that the Tribunal did not explain how it arrived to the amount of com- pensation to be paid to Saliba. The Court asked the Tribunal to give an explanation. Constructive dismissal must be an immediate action by the employee LAW REPORT MALCOLM MIFSUD Mifsud & Mifsud Advocates APS Bank partners with Trust Payments to offer merchant acquiring services APS Bank customers will now have the opportunity to offer merchant acquiring and eCom- merce services and solutions through a new partnership with payment technology lead- ers Trust Payments. The Bank's business customers will be able to accept card payments through a POS terminal and other forms of electronic payments, with the funds being deposited into their APS Bank account. They can al- so benefit from Trust Payments' innovative eCommerce platform which equips merchants with easy-to-use tools to build, scale and sell online. Steve Grech, CEO of Trust Payments Malta, said: "This is a great opportuni- ty for us to work together with APS Bank, a reputable long-es- tablished and fast-growing local bank, to help their business cus- tomers to access acquiring and eCommerce services and solu- tions quickly and easily." For further information on merchant acquiring services being offered, please visit mt/merchant-acquiring.

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