This was decided by the Industrial Tribunal on the 1st December 2020 in the case filed by Giulia Gattuccio against her former employer Suda Entertainments Ltd, claiming unfair dismissal. Gattuccio started working as a waitress in a restaurant of the Defendant Company on the 22nd December 2016, which employment was terminated on the 22nd July 2018.
The issue arose when although the applicant was not in charge of a particular table, she was requested to serve a cheesecake to that table. The applicant refused to serve that cake since it was in a bad condition due to being taken out of the refrigerator more than one hour before.
After having refused to serve the cake, the Manager instructed the applicant to leave the restaurant and to return to work the following Monday.
However, when Gattuccio returned to work, the Manager informed her that if she does not apologise in front of her colleagues, she will be dismissed.
The applicant claimed that the refusal to serve the cake was not an act of defiance, rather it was done for the restaurant’s benefit.
Therefore, Gattuccio believed that she should not apologize in the humiliating circumstances imposed.
Whereas the applicant initiated this case on the grounds of unfair dismissal, the Defendant Company declared that the applicant resigned from her employment, claiming that after 22nd July 2018 the applicant did not report to work without giving any prior notice.
The Defendant Company held that there was an argument between the applicant and another colleague, and the former did not want to work and collaborate with the latter.
Due to this, the Manager instructed the applicant to return to work the following Monday. However, the Defendant Company insisted that there was no dismissal from employment, let alone an unjust dismissal.
Conversely, the applicant claimed that the manner in which the Manager acted showed that the applicant’s employment will be terminated unless she humiliates herself and issues an apology in front of her colleagues.
The applicant further held that despite any arguments that may have arisen between her and one of the colleagues, they always collaborated with each other.
The Industrial Tribunal concluded that the Defendant Company’s claim that the applicant did not cooperate to serve the cake due to disagreements with her colleague is unfounded since the evidence conveys that the order to serve the cake was issued by the Manager and not by her colleague.
The importance of disciplinary procedures was emphasized by the Industrial Tribunal.
The evidence presented conveyed that the Defendant Company is not aware of what a disciplinary process entails.
In fact, neither the General Manager nor the Manager were able to explain or show that they are aware of the existence of disciplinary processes, highlighting the fact that no such process was implemented.
The Industrial Tribunal held that a disciplinary process should have been followed prior to the termination of employment, particularly since there were no verbal nor written recordings of warnings, abuse or negligence against the applicant, and the evidence conveyed that the applicant always carried out her work properly and professionally.
The Tribunal held that there was a termination of employment rather than an abandonment. Malpractice and lack of seriousness on the part of the Defendant Company was reflected not only through the termination of the employment itself but even in the manner such termination was manifested.
Refusing to go against a principle by refusing to issue an apology in front of colleagues, which apology should not have been requested in the first place, is not tantamount to Constructive Dismissal.
Constructive Dismissal does not arise in situations where an employee refuses to accede to the request to humiliate herself, in the absence of which she will be dismissed.
The Industrial Tribunal further held that there is no abandonment where there is an unbearable situation which constrains the employee to leave the employment. In this case, the employee did not even have the chance to choose between what is bearable and not.
Therefore, the Industrial Tribunal decided that there was no abandonment of employment nor a constructive dismissal.
Following these considerations, the Industrial Tribunal concluded that the employment termination was unjust and consequently ordered the Defendant Company to pay five thousand and sixty four Euro and twenty one cents (€5,064.21) to the applicant, which sum shall be paid within a month from the decision.
Av. Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates
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