The three elements of constructive dismissal, and an alternative post during discipline: Bonello v OZO Services

Bonello is the Industrial Tribunal decision whose three elements of constructive dismissal the Court of Appeal adopted in 2026, in Veselji v St Andrew’s Football Club. On its own facts, it rejected the claim of an employee who resigned months after being offered night work while serious disciplinary allegations were pending.

Facts

Bonello had worked since 2010 for a succession of contractors, latterly as a maintenance coordinator and supervisor stationed at a client’s facility. In January 2020 his employment transferred to OZO Services on the same terms. Over 2019 and 2020 he faced disciplinary charges, which he denied, including allegations of being absent from the site without authorisation. Disciplinary proceedings were delayed by a question about which union was recognised, and he was suspended and later on sick leave.

The client asked for him to be replaced. In October 2020 the company told him he had been removed from his role at the client’s site and offered him night work cleaning buses, at the same pay. He refused, saying the offer was abusive and amounted to constructive dismissal, and asked for compensation. Lawyers for both sides met in December 2020. In January 2021 the company told him the disciplinary proceedings would resume. Four days later he resigned with immediate effect.

The test

The Tribunal noted that Maltese law gives no definition of constructive dismissal and that Maltese courts and tribunals have relied on the English implied term of trust and confidence. It set out three elements: whether the employer breached the contract of employment; whether the breach was serious enough to justify resigning because of it; and whether the employee did not accept the breach, in the sense that he did not resign long after the conduct.

The decision

The contract was not decisive: it described him as an administration clerk, and his duties had changed over the years without any new contract. More importantly, the company had a serious disciplinary process pending. It acted sensibly in not offering him a supervisory post elsewhere while those allegations were unresolved, and it could reasonably offer alternative work until the process ended. The reasons he gave for resigning would have carried weight had there been no charges to be processed.

On timing, the Tribunal observed that if he believed the offer was a way of getting rid of him, he could have resigned in October 2020. Instead he resigned in mid-January 2021, as soon as he was told the disciplinary process would continue. The Tribunal concluded that he resigned because he sensed the process might lead to dismissal and to the loss of any compensation, and found no good and sufficient reasons amounting to constructive dismissal.

Significance

The three elements are now the clearest statement of the Maltese test, endorsed at appeal level. The facts show how they interact: an alternative post offered for a reason during a pending process is unlikely to be a serious breach, and a resignation timed to something else is unlikely to have been caused by it. For employees, the moment to object and decide is when the conduct happens, not months later.

Related: Constructive dismissal in Malta · Veselji v St Andrew’s Football Club · Barbaro-Sant v World Aviation Group · Transfers of business