The Employment and Industrial Relations Act (Chapter 452 of the laws of Malta) defines the term “unfair dismissal” as meaning:
The fairness or otherwise of the dismissal of an employee will also depend on the nature of the procedure followed by the employer to take such a drastic decision. As such, apart from identifying a lawful and just reason for the dismissal of an employee, the employer should ensure that its dismissal procedures are fully transparent, fair and proportionate to the circumstances of each particular case.
Apart from having carefully drafted employment contracts, the employer should never underestimate the importance of having clear internal policies and procedures relating to various aspects of its relationship with its employees, including the types of scenarios in which employees may be disciplined and eventually dismissed as well as the procedure to be followed by the employer should it decide to dismiss any employees.
Having such documented policies and procedures in place not only increases transparency with its employees, but also minimises the risk of the employer being deemed as having unjustly dismissed an employee.
It is also important for the employer to ensure that all steps that may be involved in any process that may lead to the dismissal of an employee – starting off with any disciplinary warnings and including any other communications, meetings, decisions and notifications – are documented in writing and with sufficient detail and clarity to ensure full transparency of the dismissal process.
Keeping in mind that prevention is better than cure, it is crucial for the employer to seek legal advice should it have any doubt as to the fairness of a proposed dismissal. In the same spirit, legal advice should also be sought by the employer when devising an internal policy framework that seeks to set out policies and procedures relating to the dismissal of employees.
The Employment and Industrial Relations Act does not expressly refer to the notion constructive dismissal. Nevertheless, constructive dismissal has been recognised by the Industrial Tribunal and the Maltese courts as a concept which is relevant to the Maltese employment legislative framework.
Simply put, constructive dismissal of an employee may be deemed to arise when the employee’s resignation or the abandonment of his employment is forced or induced by the employer, whose conduct or behaviour causes the employee to terminate or abandon his employment. In the absence of legislative definitions or criteria, the Industrial Tribunal and the Maltese courts typically defer to English legal authors and judgments to establish the parameters of what conduct would be considered as giving rise to constructive dismissal.
At Empleo, we provide legal advice to employers on all matters outlined above, including advice and assistance in the preparation of disciplinary and dismissal policies and procedures, as well as representation relating to the dismissal of any employee.
Some of our services in this area include the following:
You may get in touch with us here to request an initial free legal consultation in relation to any of the matters outlined above.
Mariella graduated from the University of Malta with a doctorate in law in 2005. She completed a master’s degree in ‘European Private Law’ from the La Sapienza, University of Rome, and was admitted to the bar in Malta in 2006.
Mariella is a people person – and it is this attribute which has really characterised and shaped her career.
Over the years, she headed the legal departments of several corporate services firms. Due to her skillset, she was also entrusted with managing and overseeing operations and human resources, where she gained technical and practical experience in various corporate, commercial and employment matters.
Her practical hands-on experience and insight perfectly complement Mariella’s technical knowledge of employment law, thus placing her in an ideal position to understand and advise employers and employees alike on various matters that may arise at the workplace.
Mariella is passionate about employment law matters and provides her clients with the highest-quality legal service to achieve the best possible outcome and resolve any employment law related issues and concerns.
Bradley graduated Doctor of Laws from the University of Malta in 2005 and was admitted to the Bar in Malta in 2006. He advises clients on various corporate, commercial, employment and regulatory matters, with particular focus on company and financial services law.
He has assisted clients in various corporate and commercial matters by providing company law advice and assisting in the implementation of corporate finance, restructuring, mergers and acquisitions and similar transactions.
Bradley has also advised and assisted investment funds, fund managers and other investment services providers, banks and financial institutions, on various legal and regulatory matters relating to the setting up, authorisation and ongoing conduct of their activities in Malta.
His practice also covers general employment law matters. Bradley’s experience in company and financial services law enables him to focus on various corporate and regulatory aspects of employment relationships. In particular, he advises organisations on the implementation of employee share option and participation schemes, the implications of business transfers on employment relationships, as well as relations with senior employees.
Karl graduated Doctor of Laws from the University of Malta in 2005 and was admitted to the Bar in Malta in 2006.
Karl has gained considerable expertise in technology law and regularly assists clients in relation to intellectual property issues, commercial contracts and ways to ensure compliance with the General Data Protection Regulation (GDPR) and privacy laws. Whilst such matters used to be only given incidental importance when dealing with employment matters, they are now widely acknowledged to be vital in all employment relationships.
He is also regularly engaged by C-level executives to assist in negotiating employment contracts and settlement agreements.
Karl advises across a multitude of industries including technology; marketing; adtech; financial services; gaming; esports; consumer products; and media and telecommunications.