Issue link: https://maltatoday.uberflip.com/i/1471185
maltatoday | SUNDAY • 19 JUNE 2022 15 LAW CLASSIFIEDS WHEN determining whether the dismissal from employment is a fair one or otherwise, the Industrial Tribunal is obliged to verify whether the requisites and procedures outlined by the Mal- tese law were correctly applied by the employer. This was decid- ed by the Court of Appeal (Infe- rior Jurisdiction) in the names 'Philippe Guillaut vs HOSI Mal- ta Limited' on the 1st June 2022 presided by Honourable Justice Lawrence Mintoff. Mr Guillaut was dismissed from employment in virtue of a termination letter which did not indicate any reason for ter- mination. During his testimony before the Industrial Tribunal, the Chief Executive Officer of the Company at the time of the employee's dismissal, explained that the dismissal took place due to restructuring within the com- pany, which was facing financial difficulties at the time. The Court of Appeal over- turned the decision of the In- dustrial Tribunal, which decided that despite not being provided with the reason for termina- tion in the termination letter, the dismissal from employment of the employee was a fair one. Although the Industrial Tribu- nal itself acknowledged that the Company was insensitive in the way in which it dismissed its employee, it failed to refer to any evidence which proves that the requisites established by law were observed. The Industrial Tribunal is obliged to determine whether the process carried out by the defendant company was a legal one, meaning, whether it strictly observed what is provid- ed by the law or otherwise. The Court of Appeal con- firmed the plaintiff's argument that if the employee was in fact dismissed on grounds of redun- dancy, then the Industrial Tribu- nal had to determine what type of redundancy took place, that is whether it was an individual or a collective redundancy. Only then would the Industrial Tribu- nal have been able to apply the correct legislation in relation to the specific type of redundan- cy. In fact, the Court of Appeal confirmed that no proof was brought forward by the defend- ant company to prove that other employees were terminated at the same time or for the reasons provided by the CEO. In order to declare the dismissal as a fair one, the Industrial Tribunal had to be convinced that the employ- ee's representative was informed about the collective redundan- cies, that he received the details as required by the law and that the Director for Industrial and Employment Relations was in- formed about and involved in the process of collective dismiss- al by the defendant company, to ensure that no employee was ter- minated without a reason. Apart from the fact that this exercise was clearly not carried out by the Industrial Tribunal, the Court of Appeal also ob- served that the defendant com- pany did not bring forward any proof of the difficulties which it alleged to have suffered in 2018, or that it witnessed a decrease in the offshore and onshore de- mand, leading to a decrease in demand for the use of helicop- ters operated by the employee. Furthermore, no evidence of the restructuring programme alleg- edly implemented by the defend- ant company or of the financial crisis which impacted it, were brought forward. Likewise, there was no proof of the number of employees which allegedly were to be made redundant. The Court of Appeal confirmed that even if the redundancy in question was deemed to be indi- vidual redundancy, then the In- dustrial Tribunal was obliged to ensure that the defendant com- pany observed the requisites of Article 36(4) of Cap 452 of the Laws of Malta, which lays down the Last In First Out principle. This means that the last person to join the company is the first to be made redundant. This means that the Industrial Tribunal is to evaluate whether the person as- suming the role of the employee being made redundant, was em- ployed with the company before the said employee or otherwise. In this case, the Industrial Tri- bunal completely ignored this legal requisite and instead de- cided that the plaintiff was fair- ly dismissed as the person as- suming the plaintiff's role was more competent and occupied a better grade than him, without have any concrete proof of this. Conversely, when analysing the termination letter provided by the Company to the plaintiff, the Court of Appeal was under the impression that the employee taking over the plaintiff's em- ployment was engaged to replace the plaintiff and not that he was assuming the plaintiff's role in addition to duties already carried out by him. Unfair dismissal must be decided on basis of legal requisites, not arbitrary criteria LAW REPORT MALCOLM MIFSUD Mifsud & Mifsud Advocates 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 SAN GWANN - Close to all amenities and located in the commercial district is this 3 storey OFFICE BUILDING. 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