Case study: Defending an employer

Employment law Malta

Background information to the case

Our client, a local company, had employed an individual on a full-time employment contract, for an indefinite period. The employee was dismissed from employment for negligent behaviour at work. Furthermore, the employee at that time had failed to inform our client, the employer, regarding her pregnancy, even though she had claimed that she was willing to return to employment on a full-time basis post maternity leave.

Employment problem

During the employment, the employee did not conduct herself properly and eventually, following a meeting held at the company’s premises, the directors notified the employee that they were no longer willing to employ her. The employee refused to resign, and eventually she was served with a letter from Jobsplus regarding her termination from her place of work for disciplinary reasons. The applicant felt highly aggrieved by this decision, attesting that she always performed her work diligently. Accordingly, she filed an action in front of the Industrial Tribunal, and raised the argument that her termination was solely a consequence of her pregnancy and referred to both Article 36(14) of the Employment and Industrial Relations Act (Chapter 452 of the Laws of Malta) and Subsidiary Legislation 452.9, ‘Protection of Maternity (Employment) Regulations’. This, even though our client was never made aware of her pregnancy.

The Tribunal did not uphold the applicant’s claim, and voted in favour of our client by asserting that the termination from employment was a result of her behaviour at work, and that her pregnancy was an external factor to such dismissal. The Tribunal based its conclusion on corroborating evidence from other employees and ex-employees of the company, who all alleged that the applicant was negligent in her duties and placed a burden on the other team members to conduct the tasks that were primarily assigned to her. Moreover, reference was made to other employees who, after their maternity leave had elapsed, returned to work on a full-time basis.

From cross examining one of the employees of the company, who had a managerial role, it was concluded that although no written attestation of wrongful behaviour was issued to the applicant, there were various verbal warnings on such regard. Consequently, the Industrial Tribunal pronounced that the termination of the applicant was based on just grounds and was not unlawful.

An appeal

The Tribunal’s decision was eventually appealed by the employee who through her lawyer reinforced the arguments and stated that although the witnesses had declared that the employee’s attitude at the place of work was not ideal, there was no concrete evidence to showcase this.

Sciberras Advocates argued that the appeal is null and void since an appeal from a Tribunal’s decision can only be on points of law and can never be on a point of fact.


Concluding, what the court had to decide is whether the appeal was done on a point of law or on a point of fact, basing itself on article 82(3) of the Employment and Industrial Relations Act. Moreover, the point of law being elucidated upon must have already been determined by the Tribunal itself. The Court upheld the Tribunal’s decision and argued that the appeal is not regarding on a point of law, but rather a fresh evaluation of the evidence produced. The court, ultimately, was not convinced with the way the aggravations were put forward, and accordingly, decided in our client’s favour.

This article is for information purposes only and should not be construed as legal advice.

Article written by Ms Caitlin Turner, currently reading a Bachelor of Laws (Honours) at University of Malta.

Sciberras Advocates founded by Dr Adrian Sciberras, is a law firm based in Malta. The firm prides itself to be multi-disciplinary, innovative and flexible in order to meet the changing times and any challenges in the local and international legal scenario. No matter what private or corporate complex demands are called for, Sciberras Advocates offers practical and cost-effective legal solutions to achieve your desired results. You may reach Sciberras Advocates by phone on +35627795222 or via email on [email protected].

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