Posted Saturday, July 6, 2019
Union cannot decide instead of member

A Union cannot finalise an agreement with an employer without the explicit consent of the member. This was held in a preliminary decision delivered on 21 June 2019 by Mr Joseph Gerada in Doreen Saliba v Foster Clark Products Ltd.

Doreen Saliba filed the action after alleging that her resignation was in fact a constructive dismissal.

The company filed a number of pleas, the first two were that there was an agreement between the parties and this agreement was binding. Another plea was that the action was time barred in terms of Article 75 of the Employment and Industrial Relations Act. The Tribunal was asked to decide on these two pleas.

Mr Gerada analysed the evidence brought before him. With regard to the first plea on whether an agreement was reached the GWU representative had discussions with the company in order to come to a settlement on compensation. There were email exchanges between the two and it seemed that they reached an agreement on a financial figure.

The Union had also said that Saliba had agreed to the sum and the company had prepared a cheque for Saliba to collect. Saliba had testified in these proceedings and explained to the Tribunal that when the Union’s official rang her, he not only informed her of the sum agreed upon, but asked her to collect the cheque. At that point Saliba went to another lawyer. She claimed to have never agreed with the Union to accept this sum and that she was unaware that the Union had accepted and agreed to this sum.

The Tribunal noted that Saliba had worked with the company since May 2014 and she had sent her letter of resignation in August 2018 and described this resignation as a constructive dismissal. On receiving the resignation, both parties were discussing on how to fix the problem, however, the problem was never solved.

From the Union’s point of view it was negotiating within parameters to obtain the best compensation for their member. Both the Union and the company had come up with different figures, but then agreed on one figure.

The Tribunal held that Saliba’s version was more credible. Unions have a right to give advice on most aspects on industrial issues and represent their members before their employers. However, a Union cannot decide instead of its members and take decisions without their approval. In this case the agreement was not signed by Saliba and therefore the Tribunal turned down the plea that there was an agreement between the two.

With regard to the second plea on whether the action was time barred, the Tribunal held that Article 75(3) of the Employment and Industrial Relations Act gives four months for one to file an action. The resignation took place in August 2018, but the employee stopped work in October 2018 and the action was instituted in January 2018. The company argued that the resignation was a voluntary one and therefore the four months should have started in August 2018. Saliba argued that there were mitigating circumstances to justify that the prescriptive period started beyond this date.

The Tribunal comments that when someone resigns because the person feels forced to do so, this is a serious thing. In this case Saliba felt that she was being treated unjustly when her duties were changed, although she was earning the same wage. She had received working instructions and in such circumstances there may be a dilemma on the part of the employee that if she disagrees she can face disciplinary proceedings or termination of employment or else the employee may be forced to resign.

Saliba adopted the last option. She testified that discussions continued after she tendered her resignations with a view to come to some agreement. But it was clear that no agreement was reached. This took place during her notice period and therefore, since there was hope of an agreement, the termination was not on the date of resignation, but when she actually stopped work in October 2018. Therefore, this plea was also turned down.

 
This article may also be accessed on Malta Today
Avv Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates 
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