Posted Friday, January 4, 2019
Don’t press ‘like’ on the competition’s Facebook page

The Court of Appeal agreed with an employer which gave a warning to the employee for liking the Facebook page of its competition. This was held in a judgement delivered by Mr Justice Anthony Ellul on 18 December 2018 in Charichelon Company Limited -v- Alkida Rama.

The plaintiff company Charichelon Company Limited had filed an action against a former employee, Alkida Rama, asking her to pay €6,900 for terminating her employment, which was in breach of her employment contract.

Rama filed a statement of defence saying that she had sufficient grounds to terminate, since she was not treated well, she was forced to work excessive working hours and had her leave disapproved on  numerous occasions.

The Magistrates’ Court upheld the company’s claim and ordered Rama to pay the company €6,900. Rama appealed on the ground that the first court should not have concluded against her and that she had to leave work because of a cause and justifiable cause and the court should also not have liquidated the damages.

The Court of Appeal held that the concept of a good and sufficient cause to terminate one’s own employment is wide and did include constructive dismissal. The former employee complained that her working environment was oppressive. She had difficulties on using her vacation leave. She had an incident where he liked a Facebook page of a competitor, and the employer’s reaction was out of proportion.

She argued that she was a victim of constructive dismissal. She explained that in December 2012 she was 58.16 hours a week, while in January 2013 she worked 64.8 hours per week. This situation of long hours work caused tremendous stress, and on one night she slept on the wheel of her car. She claimed that this was contrary of the Organisation of Working Time Regulations. Although she was promoted the pay and the added responsibilities did not add up.

The Court of Appeal analysed the Magistrates’ Court judgement, which held that Rama failed to show to the court that there was sufficient cause to resign, without facing any legal consequences. She worked with the company for a long time and started as a make-up artist and was promoted to an assistant manager. She showed her appreciation of the promotion by writing an email. The First Court did not understand why she complained that the promotion brought with it additional responsibilities, which was a natural and logical consequence.

She was also sent to management courses, and she thanked the company in another email. Her resignation letter included an appreciation for the opportunities the company gave her she was in employment with them. The company, on the other hand, tried to have a good relationship, and her resignations was out of the blue. As to the incident when she liked the products of their competition, the company said that all they did was draw her attention to this by means of an email. As to her applications of leave, these were approved 88% of the time. From the punch clock readings, Rama worked for an average of 45.7 hrs per week.

The Court of Appeal held that Article 36(14) of the Employment and Industrial Relations Act reads:

(14) Notwithstanding the foregoing provisions of this article, an employer may dismiss the employee and the employee may abandon the service of the employer, without giving notice and without any liability to make payment as provided in subarticles (10), (11) and (12) if there is good and sufficient cause for such dismissal or abandonment of service”

As to the breach of contract, the court quoted from Cavendish Hotels Limited -v- Jesmond Beck, which held that the concept of good and sufficient cause, although not defined in the law, meant it brings about lack of trust between the employer and employee.

As to the vacation leave, the court held that there is nothing wrong with employers asking their employees to plan their vacation leave. From the evidence produced in almost 2 years, her leave was not approved on 6 occasions from 51. It was true that she was asked to join a meeting on one occasion when she was on leave. On another occasion, her leave was not approved but just the same, she did not report for work. The Court pointed out that it is true that vacation leave is the employees right, but it does not have to be approved, everyone.

The Court of Appeal gave an example of a clash between employees applications. It is also understandable that the employer asks the employees not to take leave in a particular part f the year. The Court held that vacation leave should be a welcome break from work and preferably the appellant should not have been asked to join a meeting when she was leave, but from the records, this was once and for less than an hour, and she left for the rest of the day.

As to the like she pressed on a competitor’s Facebook page, Mr Justice Ellul, held that Facebook is public and it was not a closed page and therefore, everyone could see that she was approving the company’s competition. Therefore, the company was correct to draw her attention to this.

As to whether she was ordered to work excessively and beyond 53 hours a week, the court held that this allegation was not proved by Rama, but from the Court’s calculations, this was less. In December 2012, she works for over 60 hours a week. The Court pointed out that there is no evidence that she objected to this. The employed contract stipulated that both the employer and employee had to agree whether she worked more than 48 hours a week.

The employment contract also stipulates that the employee could resign but had to give 3 months’ notice. It seems that there was no notice. From the evidence produced there was no evidence of difficulties between the employee and her superiors, and this was emphasised in her written resignation.

The Court then moved to turn down the appeal.

 
Dr. Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates
 
This article may also be accessed on MaltaToday.  
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