Employment Case Law Conference for 2019-2020 12th Annual Conference - - PDF document

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Employment Case Law Conference for 2019-2020

12th Annual Conference

Maltese Cases - Part 1

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Davis Davison vs De De La La Rue Rue Curr Currency & & Sec Securit ity Pri rint (C (CoA

• A) (11

(11th

th

Oct October 2019)

4th June 2012 - Industrial Tribunal 4th June 2012 - Industrial Tribunal 27th April 2016 - Court of Appeal 27th April 2016 - Court of Appeal 15th December 2016 - Industrial Tribunal 15th December 2016 - Industrial Tribunal 23rd April 2018 - Court of Appeal 23rd April 2018 - Court of Appeal 11th October 2019 - Industrial Tribunal 11th October 2019 - Industrial Tribunal

Davis Davison vs De De La La Rue Rue Curr Currency & & Sec Securit ity Pri rint (C (CoA

• A) (11

(11th

th

Oct October 2019)

THEFT & DISMISSAL THEFT & DISMISSAL

Davison took a broken plug to work to fix during his break Davison took a broken plug to work to fix during his break He took a small tube of glue, put it in his pocket, and continued his rounds He took a small tube of glue, put it in his pocket, and continued his rounds A company official spotted the bright bottle through his breast-pocket A company official spotted the bright bottle through his breast-pocket

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Davis Davison vs De De La La Rue Rue Curr Currency & & Sec Securit ity Pri rint (C (CoA

• A) (11

(11th

th

Oct October 2019)

The he first IT de decis isio ion fou

• und tha

hat the di dism smissal al was jus ustif tifie ied. The he CoA

• A revoked the

he de decis isio ion and nd ordered the he IT to to award com compen ensation n for

• r

unju unjust t di dism smissal. al.

Davison had been employed for 32 years with a clean record His role was to prevent others from acting as he did & the company’s high security nature required rigid compliance with rules.

Davis Davison vs De De La La Rue Rue Curr Currency & & Sec Securit ity Pri rint (C (CoA

• A) (11

(11th

th

Oct October 2019)

IT awarded the plaintiff €18,000 as compensation Davison appealed, claiming that the amount was meted out without justification CoA agreed and pointed

• ut that Davison had

claimed around €90,000 (backed by evidence) 5 6

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Davis Davison vs De De La La Rue Rue Curr Currency & & Sec Securit ity Pri rint (C (CoA

• A) (11

(11th

th

Oct October 2019)

The IT heard evidence again and awarded

• ver €90,000

The employer appealed, claiming that the IT had been too mathematical in the wake of the COA order The CoA rejected the appeal

Mif Mifsud vs FIM FIMBANK K plc (I (IT) T) (4 (4th

th De

December 2019)

Plaintiff starting working on reduced hours (family reasons) Plaintiff refused and resigned immediately Management asked her to gradually return to regular hours 7 8

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Mif Mifsud vs FIM FIMBANK K plc (I (IT) T) (4 (4th

th De

December 2019) Mif Mifsud vs FIM FIMBANK K plc (I (IT) T) (4 (4th

th De

December 2019)

The reduced hours arrangement was temporary and renewable annually While on reduced hours, Mifsud was still contractually a full-time employee

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Mif Mifsud vs FIM FIMBANK K plc (I (IT) T) (4 (4th

th De

December 2019)

Employer had attempted to help find solutions Mifsud had been too hasty in her decision to resign Case was dismissed

Caru Caruana vs GCS GCS Ac Accountin ting Ltd (I (IT) T) (9 (9th

th Jul

July 2020)

Caruana was dismissed on probation She was pregnant She had not submitted a medical certificate re pregnancy She claimed her dismissal was unfair 11 12

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GCS’s defence

Conflict of interest – Caruana’s partner passed clients to GCS Poor performance

Caru Caruana vs GCS GCS Ac Accountin ting Ltd (I (IT) T) (9 (9th

th Jul

July 2020) Caru Caruana vs GCS GCS Ac Accountin ting Ltd (I (IT) T) (9 (9th

th Jul

July 2020)

Poor Performance

• Errors were not grave enough to warrant dismissal

Conflict of Interest

• The Industrial Tribunal’s considerations:
• Caruana’s boyfriend and third party used to pass on work

to GCS, but had a falling out. The third party wrote to GCS, urging them to fire Caruana and threatening to otherwise stop passing on clients to the company. Caruana was shown this letter during her termination meeting.

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Caru Caruana vs GCS GCS Ac Accountin ting Ltd (I (IT) T) (9 (9th

th Jul

July 2020)

€10,000 compensation Dismissal was unjustified Reason was clearly based on business coercion Violation of Maternity Regulations

Cam Camil ille leri ri vs MIA MIA & & G4 G4S S – (IT T - Pre reli limin inary ry Dec Decis isio ion) (25 (25th

h

February ry 2020)

Employee of G4S Supplied to MIA as fire fighter MIA asked for the employee to be substituted and he was ‘returned’ to G4S MIA terminated contract with G4s two months later

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Cam Camil ille leri ri vs MIA MIA & & G4 G4S S – (IT T - Pre reli limin inary ry Dec Decis isio ion) (25 (25th

h

February ry 2020)

One day later MIA employed all other G4S workers who were fire fighters directly to do the same work, excluding Camilleri Camilleri claimed: (a) he had been framed; (b) he should have been offered to return to MIA with the rest (TUPE?) and (c) MIA was the entity that

• rdered his ‘dismissal’ and should be responsible for their actions

Tribunal didn’t go into the TUPE merits at all but stated that this was a temp. agency worker and that MIA control did not create a legal relationship with Camilleri as employer – ergo, MIA were let off the hook

Az Azzopard rdi i vs Ma Mapfre MS MSV Li Life plc (C (Cou

• urt of
• f Ma

Magis istr trates) (10 (10th De December 2019)

Employee works 2017 in full Gives notice

• f her

resignation in January 2018 Effectively resigns in March 2018 Company bonus for 2017 is payable in March 2018

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Az Azzopard rdi i vs Ma Mapfre MS MSV Li Life plc (C (Cou

• urt of
• f Ma

Magis istr trates) (10 (10th De December 2019)

Company bonus policy stated that as soon as

• ne hands in

notice bonus rights are lost Employee was duly informed of bonus and reminded upon resignation Employee claimed its unfair and such clauses in policy should not be enforceable Court upheld clause

What if there was no clause??

Carb Carbone vs Ga Gamm mma Cap Capit ital l Ma Mark rkets (C (Civil il Cou Court) (6 (6th

h

Oct October 2020)

Carbone is chosen to be employed as fund manager for Gamma Due to MFSA regulatory constraints, Carbone has to be approved before he starts the employment. No contract of employment is signed at this point but Company promises to file PQ for approval Parties enter into a consultancy agreement in the meantime and Carbone argues he passes on some clients and some knowhow… For various reasons, company did not submit the PQ and after a while relationship went sour….

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Carb Carbone vs Ga Gamm mma Cap Capit ital l Ma Mark rkets (C (Civil il Cou Court) (6 (6th

h

Oct October 2020) Carb Carbone vs Ga Gamm mma Cap Capit ital l Ma Mark rkets (C (Civil il Cou Court) (6 (6th

h

Oct October 2020)

750K

Rent; Office-related costs; Damages suffered due to change from employment to consultancy; Fees in pursuance of his application with the MFSA; Relocation fees, since he had to move to Malta; Management fees; Pecuniary and moral damages

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Carb arbone vs s Gam Gamma Cap apital Ma Markets (Civi ivil Cou

• urt)

) (6th Oct October 20 2020 20)

Court awarded….. €1,225

Az Azzopard rdi i vs. AP APS S Ba Bank Ltd (I (IT) T) (21 (21st

st Jul

July 2020)

Azzopardi was employed with APS on a definite contract as a Manager He had invested money in the MORE Supermarkets chain, which subsequently faced serious financial issues

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Az Azzopard rdi i vs. AP APS S Ba Bank Ltd (I (IT) T) (21 (21st

st Jul

July 2020)

A court case on MORE Supermarket guarantees (bills of exchange) was opened APS found out about Azzopardi’s investment - the operating company was a client APS accused Azzopardi of loaning money to a client and asked him to resign

Az Azzopard rdi i vs. AP APS S Ba Bank Ltd (I (IT) T) (21 (21st

st Jul

July 2020)

Azzopardi was dismissed after refusing to resign IT found that APS did not follow the proper disciplinary procedure and ordered FT penalty payment APS’ claim that FT contract employees did not fall under the MUBE CA was refuted as that would have been blatantly discriminatory

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Mif Mifsud vs. AX AX Ho Hotel l Op Operatio ions (I (IT) T) (28 (28th

th February

ry 2020)

SEXUAL HARASSMENT SEXUAL HARASSMENT

Indecent exposure Indecent exposure Lewd suggestions Lewd suggestions Constant double-meaning comments Constant double-meaning comments

Mif Mifsud vs. AX AX Ho Hotel l Op Operatio ions (I (IT) T) (28 (28th

th February

ry 2020)

Mifsud refuted the claims, stating that one

• f the managers

disliked him

Evidence on indecent relations between management and

• ther members of

staff was also presented

He claimed that

• ne of the

complainants actually harassed him

One manager would regularly refer to one of the receptionists as his ‘sunshine butt’

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Mif Mifsud vs. AX AX Ho Hotel l Op Operatio ions (I (IT) T) (28 (28th

th February

ry 2020)

IT considered that the employee was not given sufficient

• pportunity to defend himself

Doubt was shed on the integrity of the complaints, amplified by the unprofessional intimacy (kunfidenzji zejda) between staff and management Employer had no harassment policy – you cannot blame employees for not knowing what behaviour is acceptable

• r not when they say management acting like that!

Mif Mifsud vs. AX AX Ho Hotel l Op Operatio ions (I (IT) T) (28 (28th

th February

ry 2020)

Penalty was disproportionate considering the work environment Compensation of €2,000 awarded to the plaintiff

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Lora Lora Cas Cascun v Healt Health Min Minis istry try (I (IT) T) (27 (27th

th Jul

July 2020)

Ministry asked employee to go through a medical test at age 65 in line with PSMC Rules Employee refused. She stated that she was on a fixed term contract and she was not employed like

• ther employees

She also claimed age discrimination stating that the requirement should not be imposed without any reason other than age Tribunal concluded that there was no discrimination

Sp Spiteri v Vodafone Malta (P (Pro rohibitory ry Inj Injunction No. . 522/2020) ) (1 (15th

th May

y 2020)

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Case Study…. I smell a rat…. by ABC

I smell a rat!

You are the HR Director of a fintech company employing 135 people in Malta and 325 in different countries, EU and non-EU. You have received an anonymous but credible tip which confirms information you already hold that a middle-manager has compiled a dossier that she is planning to pass to a news portal that specializes in sensational financial news. From the information passed to you, it appears that the information relates to commissions being paid to intermediaries on major infrastructural projects and intended recipient was https://rijock.blogspot.com/ The company faces major reputational harm, and its directors are US citizens. The employee is employed on a fixed-term contract of three years in the Malta

• ffice, she is pregnant (not on maternity) and still on probation…

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Time to Vote …..

Maltese Cases - Part 2

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Ros

• ski v Emp

mperor Aviatio tion (C (CoA

• A) (30

(30th

th Sep

September 2020)

Contract for services with Emperor Aviation Jan 2018

• Contract terminated by company
• Roski claims that he is in effect employed and demands comp for unfair dismissal

Tribunal noted that there was no jobs plus registration

• Considered that Roski invoiced for his services via his company Almadine Company Ltd
• Did not specifically consider the Employment Status NSO
• Found Roski not to be an employee

Court of Appeal agreed with the Tribunal

• Considered that the base elements of the NSO were indirectly considered
• Referred to the Civil Code and stated that the contract between the parties was clear

Ho Holl lland v Of Offic ice Gr Group - (IT IT - De Decree) (22nd

nd Oc

October 20 2020)

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Cas Cassar vs. App Apple letree International l Li Limited (I (IT) T) (28 (28th

th

No November r 2020)

Cassar was employed on successive fixed term contracts with various gaps in between each of them She was dismissed 6 months after the expiration of the latest contract Cassar claimed that the decision to terminate was based on her chronic illness

Cas Cassar vs. App Apple letree International l Li Limited (I (IT) T) (28 (28th

th

No November r 2020)

The employer and the client with whom Cassar worked decided to terminate her She was dismissed 2 days before she was to switch to an indefinite contract Cassar also explained that she was about to leave for the UK for medical treatment

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Cas Cassar vs. App Apple letree International l Li Limited (I (IT) T) (28 (28th

th

No November r 2020)

Alleged performance issues No set disciplinary procedure Warnings and a form of hearing are still expected UNFAIR DISMISSAL €6,000 compensation

Sa Samm mmut vs. HS HSBC BC Ba Bank Ma Malta plc (C (CoA

• A) (12

(12th

th Jun

June 2020)

Discrimination claim on equal pay Sammut nominated 2 comparators Comparators worked with a separate HSBC company (UK)

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Sa Samm mmut vs. HS HSBC BC Ba Bank Ma Malta plc (C (CoA

• A) (12

(12th

th Jun

June 2020)

Sammut requested joinder of HSBC Holdings plc (UK) as the ‘single source’ Single Source: although not the employer

• f the plaintiff or comparator, has the

power to determine non-discriminatory decisions over both parties

Sa Samm mmut vs. HS HSBC BC Ba Bank Ma Malta plc (C (CoA

• A) (12

(12th

th Jun

June 2020)

IT: no, your contractual

relationship is with HSBC Bank Malta plc

CoA: still no, you

haven’t proved that the nominated comparators can in fact be considered to be legitimate comparators

To request a joinder of the ‘single source’ you must prove that you have a basis to compare with the comparators themselves 43 44

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From Europe, with love..

Fetic tico et t vs Gru Grupo De De Imp mpresas DI DIA (E (ECJ 588/1 /18) (4 (4th

th Jun

June 2020) 2020)

Marriage leave, birth leave bereavement leave;

Rest periods

• r

vacation leave

Any Days

• r work

days?

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Project manager working for ISS full time under tender

Atalian Atalian

Cleaning Masters NV

City of Ghent

ISS SS Facili lity Ser Servic ices NV NV v Go Govaerts et t (E (ECJ 344/18) (26 (26th

th

Ma Marc rch 2020)

Her erbai v v Hun ungary (11 (11608/15) ECHR, 5th

th Nove

vember 20 2019

• An HR Manager is dismissed from her

employment in a bank for blogging on technical HR matters on the side;

• Employer argued it was inevitable that she

was going to disclose company secrets, methodologies and HR strategy;

• Court considered, the nature of the speech in

question, the motives of the author, the damage, if any, caused by the ‘speech’ to the employer, and the severity of the sanction imposed…

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Employment Case Law Conference for 2019-2020

12th Annual Conference

51