Unfair dismissal under Maltese law in the past twenty-five years : what emerging principles and trends?

Abstract

"In the field of labour law, change is a palpable reality." This observation has been written by Mr. Justice Joseph R. Micallef twenty-five years ago in the introduction of his thesis Unfair Dismissal under Maltese Law. That statement remained echoing in my mind since I read it some three years ago. It made me feel curious about the changes and developments that took place since then. Also, the time is ripe to dissect the principles, trends (and vicissitudes, if any) that emerged through the judgements of the Courts and the decisions of the Industrial Tribunal, with regard the issues and the instances to concern the subject of Unfair Dismissal. Section 36(14) of Employment and Industrial Relations Act of 2002 specifies that an employer may dismiss an employee and the employee may abandon the service of the employer without giving notice, if there is good and sufficient cause for such dismissal by employer or abandonment of service by employee. What amounts to 'good and sufficient cause'? Is there a way such a catch-all situation phrase, open for a neverending interpretation, somehow be determined? It is the scope of this thesis that through the analysis of hundreds of decisions (awards) of the Industrial Tribunal and judgements of the Superior Courts, a dissection of the principles and trends established through the interpretation of what amounts to a good and sufficient cause in such decisions and judgements, will be established. The Industrial Tribunal and the Maltese courts have interpreted and discussed the phrase good and sufficient cause in several judgements and decisions, respectively. Considering that very often, each case has to be decided upon in its own light, merits and circumstances, the decisions of the courts and tribunal have drawn rules and parameters which are nowadays applied in every case which falls within a particular description. Guided by the principle that an employment is first and foremost the means of subsistence of every employee, the Industrial Tribunal always held that when a decision of employment termination is being considered, dismissal should be the last resort, and it should not occur except when there is a good and sufficient cause for dismissing an employee. As it is going to be explained later on with regard to the specific grounds of "dismissal", in Article 36(14) the law lists down the only specific instances that absolutely excludes a valid reason at law for an employer to dismiss. There is no set of indicative grounds, which though non-exhaustive, when a case of dismissal comes before a disciplinary board or the Industrial Tribunal, guide the parties to a contract of employment, let alone an assessment-criterion. Though a non-exhaustive set of grounds would clearly guide, it still remains up to the parties to prove and to the chairperson of the Industrial Tribunal or the judge to determine the level of proof, admittance of reason of dismissal and its justification, in a case-to-case manner. It is precisely from the corpus of decisions of the Tribunal and the jurisprudence of the Courts that we can establish the principles, trends or vicissitudes (if there had been any). From these decisions we can also dissect a set of guidelines that can help us determine what amount to good and sufficient causes.