Issue link: https://maltatoday.uberflip.com/i/914278
50 maltatoday SUNDAY 10 DECEMBER 2017 I n Mark Muscat -v- HSBC Bank Malta plc, the First Hall of the Civil Courts held that when one alleges discrimination, then one must prove that there is a difference in how one is treated in the same or similar circumstances. This was held in a judgement delivered on 5 December 2015 by Mr Justice Silvio Meli. In his application, Mark Muscat, explained that he was employed as a Private Claims Manager at the bank, but also was the Malta Union of Bank Employees (MUBE) representative of the clerical and managers of the bank within the Wealth Management department. On 24 September 2012, the Union ordered a strike for the employees in the Wealth Management department on the threat to change the conditions of employment of these employees. When the strike took place, he left the office building but by mistake left his briefcase in the garage. He noticed this two weeks after, and when he returned, he informed his superiors. The CCTVs did not shed any light. As a consequence, Muscat faced disciplinary action for negligence and not following the bank's procedure. These proceedings were done in bad faith and in breach of the collective agreement. Muscat also claimed that he benefits from immunity in terms of the Employment and Industrial Relations Act, but all the same the bank asked him not to return to work. Muscat asked the Court to declare that he is subject to the legal immunity and to declare that the disciplinary proceedings were held in bad faith and to order the bank to allow him to return to work. The bank filed a statement of defence stating that the disciplinary proceedings are done by an independent board. Mr Justice Meli analysed the evidence brought before him. It was proved that the briefcase which was lost contained a list of clients with their information. Muscat had explained that he was under the impression that he left the briefcase in his office, but it resulted that he had taken it to the garage and left it where he had parked his car. The Court pointed out that this case dealt with whether the bank could take disciplinary action against the plaintiff Muscat. The Court held that from the evidence produced there is no connection between the strike and the disciplinary procedure. The fact that Muscat lost his briefcase had no bearing on the industrial action. Article 63 of the Employment & Industrial Relations Act, gives protection to a trade unionist against damages in case when there is industrial action. On the other hand the bank presented manuals and documents which state that staff are prohibited from removing from the bank premises any information of its clients. It resulted that the plaintiff did take out a list of clients without permission. This could have prejudiced the bank since the information was private and sensitive. The Court held that the bank was justified in taking disciplinary action and this was in accordance with the collective agreement. However, these proceedings were halted when a warrant of prohibitory injunction was issued. The plaintiff alleged that he was subject to discrimination. Therefore, it was up to the plaintiff to show that he was treated differently from similar cases. From the evidence produced the Court did not find any examples of how the bank acted in similar situations as that of Muscat. The court referred to a judgement Tarek Mohammed Ibrahim v Deputy Prime Minister et decided on 5th April 2011, which held that what has to be shown in discrimination is the different treatment. There are two elements, the first that a person is not treated in the same manner as another person in the same circumstances. There may be a comparison between who suffers a disadvantage and who receives an advantage. The bank rejected the claim that it intended to dismiss Muscat. A report on the loss of the briefcase was drawn up by a bank official who presented it to the human resources department, which then issued the disciplinary charges. The composition of the disciplinary board included an MUBE member. The Court then moved to dismiss Muscat's claims. Dr Malcolm Mifsud Partner Mifsud & Mifsud Advocates Opinion T he Planning Authority upheld a request for the sanctioning of retractable glass panels located along the perimeter of an elevated roofed terrace fronting a catering establishment. The premises in question consists of an old building situated along the Birgu Waterfront. Subsequently, the permit was appealed by a third party objector before the Environment and Planning Review Tribunal. In his appeal submissions, the appellant expressed his grievances as follows: 1. In its decision, the Commission ignored allegations pointing to the 'submission of fraudulent and incorrect information, declarations and plans', hence tantamount to an error on the face of the record. To substantiate his allegations, appellant underlined that the approved drawings showed an existing canopy supported on four vertical posts, completely 'detached' from the stone facade, whereas the canopy structure was in reality affixed to the façade. Moreover, the drawings showed a timber structure when the structure 'in situ' was made of aluminum; 2. Applicant had blocked a 1.5 metre passageway which, according to the objector, had to be retained unobstructed; 3. Applicant had indicated that he was the sole owner of the said passageway when in actual fact he held no such title; 4. Applicant was the operator of the restaurant under a title of lease and was therefore expected to obtain prior consent from the bare owner; 5. The glass panels were visually obtrusive, resulting in 'a negative and unacceptable visual impact on the facade of a historical building and on the Birgu waterfront'; 6. The Superintendent of Cultural Heritage had, in a previous application, imposed a number of conditions, which this time round have been disregarded. In reply, the case officer representing the Authority counter argued that appellant's concerns focused on ownership issues which fell outside the decision remit of the Planning Authority. It was also maintained that, contrary to appellant's assertions, the Superintendent of Cultural Heritage had expressed no concern with regard to the current application. On his part, applicant insisted that the submitted information was correct, adding that appellant 'possessed no proprietary or real rights over the site in question'. In its assessment, the Tribunal observed that it was prohibited to revoke a planning permit on the basis of alleged fraudulent or misleading information or incorrect ownership declarations. In addition, the Tribunal reminded the parties that planning permits are issued subject to saving third party rights. The Tribunal also confirmed that the Superintendent of Cultural Heritage had expressed no objection with regard to the current application – hence, any previous concerns carry no bearing. Against this background, the Tribunal held against appellant, confirming the validity of the permit. Dr Robert Musumeci is an advocate and a perit www. robertmusumeci.com Robert Musumeci Malcolm Mifsud Discrimination is the difference in treatment of the same situation Tribunal cannot investigate allegations of fraudulent information The Superintendent of Cultural Heritage had expressed no objection with regard to the current application - hence any previous concerns carry no bearing