No need to write "under protest", but alternative work must be pursued: Azzopardi v Malta Public Transport Services

Does a resignation have to say “under protest”? In Azzopardi, the Court of Appeal said no: it is enough to show failings by the employer that left the employee no other way. But it still upheld the rejection of the claim, because the employee had done little to secure the alternative work he said he had been denied.

Facts

Azzopardi worked as a bus driver for the company in Gozo from 2012. In February 2016 a medical condition meant he was advised not to drive, at first for a year and then indefinitely. After his sick leave ran out he was on unpaid leave. Through his union he asked for alternative work; the company said that its small Gozo operation had no vacancy for him, and invited him to suggest a role he could do.

About six months later, without income and with a family to support, he resigned by email, giving medical reasons. He claimed that by failing to offer him other work the company had in effect dismissed him.

The Tribunal

The Tribunal was sympathetic. It found that he could not be blamed for resigning in the circumstances, and that the company had left him to his own devices: it could have done more, for example by telling him when vacancies arose. But that was not enough for constructive dismissal. An important element, a resignation under protest, was missing, since his letter said he was resigning for medical reasons. He had also never used the grievance procedure under the collective agreement. A claim based on the duty of reasonable accommodation for disability was not decided, because it had not been pleaded. The claim was rejected.

The appeal

On appeal he argued that a resignation under protest is not a necessary element. The Court agreed in principle. While a resignation under protest is one of the elements of constructive dismissal, there is no need for a person to specify that they are resigning under protest; it is enough to show failings attributable to the employer that leave the employee no other way but to leave. The Court quoted earlier Maltese decisions describing constructive dismissal as a resignation, caused by the employer’s fault, that is treated as a dismissal, together with the English duty not to destroy mutual trust and confidence.

On the facts, however, the Court found no constructive dismissal. He had never made a formal request for alternative work, relying only on his union’s representations. Vacancies had been posted on the notice board where drivers reported for work, and he had not applied for any of them. The company, with a small workforce in Gozo, had no obligation to create a new post, and had kept open its offer to take him back if his health allowed him to drive again. Had he applied and been passed over, he would have had a strong case to challenge the selection. Instead he waited months and then resigned, in part to access the benefits to which he was entitled. A further ground, that his conduct showed he had resigned under protest, was a question of fact outside the appeal. The appeal was rejected with costs.

Significance

The judgment settles a point that is often misunderstood: no form of words is required in a resignation letter. What matters is the substance, and the employee’s conduct before resigning. An employee seeking alternative work, or any other remedy from the employer, should ask formally, use the grievance procedure and apply for what is available. An employer, for its part, is better placed if it can show it kept the door open.

Related: Constructive dismissal in Malta · Spiteri v Malta Gaming Authority · Bilocca v HSBC Bank Malta · Good and sufficient cause