An employment contract is not one which is enlisted in Article 1233 which outlines contracts must be in writing on pain of nullity. Therefore, the Court can decide on the basis of the evidence before it whether an employee is owed the sum of wages promised by an employer although not formalised in a written contract. This was held by Magistrate Caroline Farrugia Frendo in the case of Mario Pisani vs KPM Marine Services Limited on the 5th of November 2019.
The court heard the pleas by the plaintiff who held that he was a licensed captain who was approached by a certain Philip Cardona and Kevin Attard to work onboard their vessel MV Alice. He alleged that they agreed that he would go to Egypt and take the vessel to the Maldives and then return to Malta and embark again to the Maldives for a period of ten years.
It was agreed that the plaintiff was to be paid €2000 per month for his services. In his first meeting with the defendants, Pisani was given the sum of €750 as a guarantee that he would not take up any jobs with any other vessels.
A few months later the defendants told Pisani that he had to immediately fly to Egypt the following day and he claimed that the signing of the contract slipped his mind. Upon landing in Egypt he stated that the defendants assured him that his place was secure and that he would be given a contract not long after. The plaintiff spent three months in Egypt living onboard the vessel Alice in less than favourable conditions. The Court heard evidence by his family members who stated that he regularly complained about his living conditions there, in that he had no kitchen or functioning shower and toilet.
He recounted how a while later he was told by the defendants that their plans to contract with the Government of the Maldives fell through and that they could not pay him. After returning to Malta, Pisani was given €2,400 out of the agreed €18,424 he was promised. He stated how on the day he was given this sum of money he was also given a car of the make Toyota Starlet as a guarantee that he would be paid the rest of the money.
Nonetheless, a while later the car disappeared and he claimed that the defendants had repossessed the car with all of his belongings, including the sum of €200 still inside. Because of his financial situation, the plaintiff was sentenced to imprisonment because he was unable to pay sums due for the maintenance of his daughter and remains to this day unemployed.
The Court then heard the pleas by the defendant Attard who held that indeed they had agreed with the plaintiff on the sum of wages to be paid, however no contract was formalised. He held that Pisani had gone to Egypt of his own accord as he was told by the defendants that the vessel was not yet ready. He stated that although plaintiff insisted on going, there was no agreement that he would be paid for his duration of time in Egypt. The Court first considered the fact that since no written agreement was signed, it would have to rest on the evidence provided by the parties. It was held that in such cases, proof that there was an agreement could be brought in a variety ways, such as the admission by the defendants and also by means of circumstantial evidence.
The Court held that in this case the fact that the plaintiff was given €750 to not take up any other jobs, a fact confirmed in the defendants’ testimony, showed that such an agreement had taken place and so the effects of the contract began from that day. The Court also held that the fact that Pisani was paid €2400 upon his return to Malta also confirmed the plaintiffs’ statement that he did not go to Egypt voluntarily, but that he was commissioned by the defendants to work on the vessel. The Court also relied on the documentary evidence of emails provided by the plaintiff which show that he was making many preparations for his trip including the buying of advanced maps for navigation.
The Court, quoting the judgement Eucaristico Zammit vs Eustrachio Petrococchino (1952), held that although it is the role of the plaintiff to prove his case, in civil cases the role of the judiciary is to be morally satisfied of the evidence before it and conclude a case based on a balance of probabilities. It therefore concluded that the plaintiff’s version of the story tallied with the evidence brought and with the circumstances following a verbal agreement between the parties.
On this basis, the Court ordered that the defendants pay the sum asked for by the plaintiff minus the sum of €2400, already paid. They were also ordered to pay legal costs.
Av. Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates
This article may also be accessed on Malta Today.
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