A conditional resignation accepted on the spot was constructive dismissal: Manicolo v Broadcasting Authority

A resignation letter is not always a resignation. In Manicolo, the Court of Appeal held that a long-serving Board Secretary who wrote that his letter should be treated as a resignation if the Board no longer trusted him had in fact been left with no choice, and that the Authority’s immediate acceptance of the letter was an unfair dismissal.

Facts

Manicolo joined the Broadcasting Authority in 1992 and had been Secretary to its Board since 2012. In 2020 he was diagnosed with a serious illness and went on long-term sick leave. While he was away, negative views about him built up at Board meetings he did not attend, and in November 2020 he was charged with several disciplinary offences, including abuse of sick leave, and suspended.

The disciplinary board upheld only part of the charges and recommended that he be kept on in a changed role. Before any penalty was decided, he wrote to the Board that he was prepared to return to his duties and close the matter with a written reprimand, but that if the Board no longer had trust in him, his letter should be considered a resignation, submitted with regret. The Board accepted it with immediate effect.

The Industrial Tribunal found the resignation voluntary and rejected his claim of unfair dismissal.

The appeal: a point of law

The Authority argued that the appeal was inadmissible because it only challenged the Tribunal’s view of the facts. The Court disagreed. Whether a case amounts to constructive dismissal, it held, is a question that fits within the determination of a point of law, even though the law does not define the concept and the answer can only be reached by evaluating all the facts. The Court could not decide in a vacuum.

The decision

Looking at the evidence as a whole, the Court found that the Authority’s conduct from the charges onwards lacked humanity and respect for the employee’s dignity. It pointed to the collective conduct towards him, the removal of various responsibilities from him over the years, the silence of colleagues and the way he had been discussed without his knowledge while he could not defend himself. It doubted that a small amount of work done at home, consistent with medical advice to keep active, could fairly be presented as abuse of sick leave.

When he had offered to apologise and accept a warning, he was told in effect to let the process run or resign. The last sentence of his letter was itself a sign that he felt he had no choice. The Board, the Court said, had taken him at his word without further discussion. This was a very clear case of constructive dismissal: he had been put with his back to the wall and left no choice but to leave.

The Court sent the case back to the Tribunal to assess compensation within three months, directing it to take account of his salary and the difficulties he faced after being forced to leave. It did not fix an amount. A separate ground alleging disability discrimination was not decided. The Authority was ordered to pay the costs of the appeal.

Significance

The judgment cites no earlier case law; it applies the “no choice” and “back to the wall” language that runs through Maltese decisions. Its practical weight lies in three points. A role can be hollowed out over years, and that history counts. A disciplinary process run harshly against an absent, ill employee can itself be the conduct that forces a departure. And a conditional letter is not a safe resignation to accept, least of all when the employer’s own process has recommended keeping the employee on.

For executives, a dated record of how the role changed may matter as much as the final letter. For employers, the safer course with an ambiguous letter is to clarify it.

Related: Constructive dismissal in Malta · Exit review · Spiteri v Malta Gaming Authority · Fenech v MFSA