{"id":5512,"date":"2026-03-26T09:53:31","date_gmt":"2026-03-26T08:53:31","guid":{"rendered":"https:\/\/sciberras.legal\/?p=5512"},"modified":"2026-03-26T09:53:34","modified_gmt":"2026-03-26T08:53:34","slug":"employment-law-unfair-or-forced-out","status":"publish","type":"post","link":"https:\/\/sciberras.legal\/fr\/2026\/03\/26\/employment-law-unfair-or-forced-out\/","title":{"rendered":"Employment Law: Unfair Or Forced Out?"},"content":{"rendered":"

From the series The Malta Employment Lawyer Explains \u2013 Article 8<\/strong><\/p>\n\n\n\n

The Difference Between Unfair And Constructive Dismissal<\/em><\/strong><\/p>\n\n\n\n

Introduction<\/em><\/strong><\/p>\n\n\n\n

Losing your job can be one of the most stressful experiences in your working life – especially if you feel that the decision was unjust or that you were left with no real choice but to resign. In employment law, these situations often fall under two key concepts: unfair dismissal and constructive dismissal.<\/p>\n\n\n\n

Although the terms are often used interchangeably, they describe very different circumstances. Unfair dismissal<\/em> typically involves an employer ending someone\u2019s employment without a fair reason or proper procedure. Constructive dismissal<\/em>, on the other hand, happens when an employee resigns because their employer\u2019s behaviour has made their position untenable.<\/p>\n\n\n\n

Unfair Dismissal<\/strong><\/em><\/p>\n\n\n\n

An employer has the right to terminate an employment contract, whether it is definite or indefinite, provided there is a good and sufficient cause<\/em>. Although Maltese law does not define this term, it specifies certain reasons that do not qualify. Under Article 36(14) of the EIRA termination on grounds such as union membership, pregnancy or maternity leave, marriage, absence due to force majeure, whistleblowing, or initiating legal proceedings over employment rights violations does not constitute a good and sufficient cause.<\/p>\n\n\n\n

Accordingly, if an employer dismisses an employee for any of these reasons\u2014and not due to a valid cause, redundancy, or retirement at pensionable age – the dismissal is deemed unfair. The EIRA defines unfair dismissal as the termination of employment, after the probationary period, that is neither based solely on redundancy nor justified by good and sufficient cause. It also includes dismissals that, while appearing to be for valid reasons, are in fact discriminatory or connected to trade union activity or participation in a trade dispute.<\/p>\n\n\n\n

Constructive Dismissal<\/strong><\/em><\/p>\n\n\n\n

Constructive dismissal occurs when an employee is effectively forced to resign because the employer\u2019s actions make continued employment impossible or unreasonable. Although the resignation may appear voluntary on paper, the employee has no real alternative but to leave. In such cases, the resignation is treated as resulting from a unilateral and unlawful act by the employer, effectively amounting to a termination.<\/p>\n\n\n\n

Common actions which may lead to constructive dismissal may include demotion, unilateral contract changes, harassment or bullying and the failure to address workplace issues.<\/p>\n\n\n\n

Maltese law does not define constructive dismissal despite this being recognised by the Industrial Tribunal and the Maltese Courts. In fact, in Philip Camilleri vs Bortex Clothing Co. Ltd., decided on the 4ta<\/sup> February 2014, whereby the Industrial Tribunal stated \u201cli ghalkemm mad-daqqa t\u2019ghajn l-impjegat ikun telaq u irrizenja, hu fil-fatt dan il-pass ikun rizultat tal-fatt li min ihaddem ikun, irragonevolment, pogga lill-haddiem daru mall-hajt sal-punt li dan ma kellux triq ohra hlief dik li jitlaq. Ma jkunux kwistjonijiet frivoli izda serji sew.\u201d<\/em><\/p>\n\n\n\n

According to the Industrial Tribunal, determining whether an employee was forced to resign involves a dual test. The first is the contractual test, which examines whether the employer seriously breached the terms of employment. The breach must be so grave that the employee is left with no choice but to resign, as the employment relationship has been irreparably damaged. The second is the reasonableness test, which considers whether there has been a fundamental breach of trust between employer and employee. A clear absence of reason or any conduct by the employer that undermines mutual respect may amount to constructive dismissal.<\/p>\n\n\n\n

Moreover, for a successful case of constructive dismissal, as reiterated in various caselaw, including Christopher Bonello vs OZO Services Limited decided on the 28ta<\/sup> of September 2023, the burden of proof rests on the employee who must additionally prove that:<\/p>\n\n\n\n