Posted Sunday, May 16, 2021
Constructive dismissal takes place when employee is forced to resign against his will

When resigns not because he wants to but because of the situation he or she is found at the place of work, is termed constructive dismissal. This was held in a decision delivered by the Industrial Tribunal chaired by Mr Joseph Gerada on 7 May 2021 Doreen Saliba -v- Foster Clark Products Limited.

Doreen Saliba filed an application in January 2019, where she claimed that there was a constructive dismissal, since she felt she had to resign after her employer changed the nature of her work. She was ordered to work as a cleaner, but she had been promoted to Housekeeping Leading Hand. The Company rebutted this by saying that there was no constructive dismissal since as she had voluntarily resigned and worked until the end of the notice period.

The Tribunal analysed the evidence brought before it. Saliba testified that she was employed as a part time cleaner in May 2014, but soon she received rapid promotions until she reached the post of Housekeeping Leading Hand. However, in August 2018, Saliba received instructions that she should help the cleaners and was to start again wearing the cleaners uniform. Saliba informed her superiors that this was unacceptable and tendered her resignation. In the meantime, she approached the General Workers Union and was offered a compensation of €12,000 by the company. This was rejected.

The Tribunal quoted from a Court of Appeal judgement Rodrick Azzopardi -v- Malta Public Transport Services (Operations) Limited and described constructive dismissal where an employee is forced to resign against his/her will. As a consequence, the Tribunal had to examine the reasons for the resignation and weigh the reasons for the resignations to see whether any of the employment contract had been breached. The Tribunal also had to see whether there was a complaint procedure at her place of work, and time between the complaint made and the resignation.

In Sarah DeMarco -v- Malta University Residence Limited, the Tribunal had quoted from the author Judge Arnold who held, “… in order to justify a conclusion of constructive dismissal one has to consider whether the conduct complained of constitutes either a fundamental breach of the contract or a breach a fundamental term of the contract.” In another Court of Appeal judgement, the court used what it termed as the “contract test” where it would examine the employer’s behaviour and see whether the employer intended to observe the conditions of the employment contract.

In this case, a manager of the employer testified that the company was noticing that Saliba and the Housekeeper spending too much time together and there was no need to work together. As a consequence, Saliba was instructed to put on the cleaners’ uniform and was as a cleaner.

Saliba felt that felt humiliated, irrespective of the fact that the company wrote to her that she would maintain her status as Lead Cleaner. However, the Tribunal pointed out that in reality this was a demotion and the position of Lead Cleaner did not continue to have the same sense as it had before. This decision suggested that the employer had a lack of understanding of the employee’s wellbeing and that money was not everything. When management gives an employee authority and responsibility and then removes it, then it is conveying a negative message. This would embarrass the employee and this is what took place in Saliba’s case.

When the order given by management was not accepted, then the company did not want that the contract of employment to continue. In this case, Saliba hoped that the injustice be rectified, but it was not and was only interested in a financial settlement.

The Tribunal ruled that the company had breached Saliba’s fundamental conditions of work. Saliba was not allowed to give her opinion on the instructions given and it was a “take it or leave it” situation.  The Tribunal noticed that Saliba resigned immediately, although she was advised by management to follow the instructions and then one could see later.

As to compensation the Tribunal ordered the company to pay Saliba €31,600 within 6 weeks.

 
 
 
Avv Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates
 
 
 
 The article is available on MaltaToday.
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