Told to resign or be dismissed, and a letter of thanks: Spiteri v Malta Gaming Authority

“Resign or be dismissed” is a common ending to a difficult meeting. In Spiteri, the Malta Gaming Authority’s Head of Enforcement resigned the day after such a meeting. The Industrial Tribunal found his resignation voluntary, and the Court of Appeal upheld that finding, giving weight to the tone of his letter.

Facts

Spiteri, a retired colonel of the Armed Forces of Malta, was employed by the Authority as Head of Enforcement on an indefinite basis from February 2016. In April 2021, when conflict of interest declarations were being collected, it emerged that a private security firm for which he worked, and of which he later became a director, counted among its clients a company licensed and regulated by the Authority. He had not declared the interest on the form, though he maintained he never had a conflict and that the work had been cleared when he was hired.

On 20 April 2021 he was called to a short meeting with senior management. According to both his evidence and the chief executive’s, he was told that his position was no longer tenable and that he would be dismissed if he did not resign. The next day he resigned by email. In the letter he defended his conduct, apologised, and thanked the Authority for having always supported him in difficult moments. It contained no hint of protest at the way he had been treated.

The Tribunal

The Tribunal, relying among other things on Camilleri v Bortex Clothing Industry, found that the resignation was voluntary and freely given, after he himself considered that his position at the Authority was no longer tenable. It rejected the claim of constructive dismissal.

The appeal

Spiteri argued that the Tribunal had not examined the evidence properly, that its reasoning was too brief, and that a resignation need not be “under protest” to be a constructive dismissal.

The Court held that his first ground raised no point of law. Appreciation of the facts is left exclusively to the Tribunal, and the appellant’s view that it should have gone deeper was an opinion, not a legal error. That ground was declared void. The Tribunal’s reasons did not need to be detailed: under the Tribunal’s procedural rules it is enough that the decision shows the relevant arguments of both sides were considered.

On the letter, the Court found the Tribunal’s remarks justified. Having tried to justify his conduct, he went on to thank the Authority’s officials. That, the Court said, was far from the conduct of someone backed against the wall by his employer. The wording of the letter had a bearing on the final decision. The appeal was rejected and the decision confirmed in full, with costs against the appellant.

Significance

The Court did not rule that an ultimatum can never lead to constructive dismissal; the ultimatum appears in the evidence, not as a ruling of principle. What decided the case was the employee’s own acknowledgement that his position was untenable, and a letter that read as a gracious departure. For an employee who is told to resign or be dismissed, the reply and the letter need advice before they are sent. For an employer, an ultimatum is safe only where a dismissal would itself be justified.

Related: Constructive dismissal in Malta · Leaving a regulated role · Manicolo v Broadcasting Authority · Camilleri v Bortex Clothing Industry