The dispute between Perrine Maire-Louise Lydie Eulalie Bourgeais and Sara Grech Limited, which was finally decided by the Industrial Tribunal on 4 October, 2022 (decision numbered 2848), pertained to the termination of Ms Bourgeais’ employment as a real estate agent at Sara Grech Limited. This case has brought to light several crucial matters and considerations that are of equal significance to both employers and employees.
Engaging individuals as self-employed independent contractors is a common occurrence, especially in certain sectors such as the real estate agency sector. This dispute highlighted the importance of employers attributing the correct legal status to individuals who provide services or carry out work for them.
In this particular case, notwithstanding that Sara Grech Limited had formally and contractually engaged Ms Bourgeais as a self-employed agent, the Industrial Tribunal analysed Ms Bourgeais’ legal status in light of the Employment Status National Standard Order (Subsidiary Legislation 452.108).
For an overview of the various criteria and considerations that are set out in the Employment Status National Standard Order, please visit the following link: https://empleo.com.mt/employer_services/employment-status/
The Industrial Tribunal concluded that Ms Bourgeais’ engagement with Sara Grech Limited satisfied all eight criteria that are set out in the Employment Status National Standard Order, such that her legal status was deemed to be that of an employee, rather than a self-employed contractor.
Another key takeaway from this dispute is the importance of employers adopting and following internal disciplinary processes and procedures that are clear, transparent and adequately communicated to employees.
In this particular case, the Industrial Tribunal highlighted the following important considerations in the context of disciplinary actions against employees:
– The employer should clearly identify and determine the nature of an alleged transgression or misconduct by an employee.
– All details of the alleged transgression or misconduct should be clearly and comprehensively communicated to the relevant employee in writing.
– The employee should be allowed to provide his/her version of the facts, and to defend himself/herself against any alleged transgression or misconduct.
– Apart from engaging in written communications, the employer should set internal meetings for the relevant disciplinary case to be considered and discussed, during which the relevant employee should be entitled to be heard and defend his/her case.
– During any internal disciplinary meetings, the employee should be given the opportunity of summoning witnesses, as well as demanding that he/she be represented during any such hearings by a person of his/her choice.
– The employer should retain adequate written records of disciplinary processes and measures taken against an employee, even in the case of verbal warnings.
Adopting and implementing clearly written disciplinary policies and procedures may be a useful tool for the employer to establish clear parameters and standards of behaviour and performance of its employees, as well as to enforce a fair, transparent and proportionate disciplinary system amongst its employees.
Formal disciplinary policies and procedures may, for instance, outline the various scenarios in which disciplinary measures may be taken against an offending employee, the types of disciplinary measures that may be prescribed and taken by the employer, as well as the procedures and steps to be followed in relation to the imposition of any such disciplinary measures.
Such a document would benefit both the employer and the employee by increasing the transparency of the manner in which the employer deals with disciplinary matters, and by providing guidance and clarity to both parties as to the various procedures to be followed by each party in relation to disciplinary matters that may arise from time to time.
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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.