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Is it Redundancy or Unfair Dismissal?

The dismissal of an employee could be one of the most difficult decisions that an employer can take. It could also be one of the most stressful events in an employee’s life, especially where such a dismissal occurs due to a situation which he/she had no control upon. Such a scenario should only be resorted to if the situation so requires and if the employer has no other option than to fire. However, deciding whether a dismissal is justified or otherwise can, at times, prove challenging.

A dismissed housekeeper: but is it redundancy if her tasks are inherited by others?

One such scenario where a dismissal is justified at law is in case of redundancy. Maltese law does not provide a definition for redundancy and in fact our courts and industrial tribunal have often times resorted to English law to help define such term. Such a lacuna in our law particularly emanates from the fact that a situation of redundancy requires a case by case analysis. No hard and fast rule exists which can provide the answer to this query.

In a recent judgment delivered by the Industrial Tribunal on the 12th of June, 2020, in the names, ‘Dorianne Bartolo Vella vs Web International Services Limited’, the Tribunal was faced with the question whether the dismissal of an employee from her role as ‘housekeeper’ was a case of genuine redundancy or unfair dismissal.

The brief facts of the case were as follows: plaintiff was engaged with the defendant company as a ‘housekeeper’. She was the only person with that title in the company and her job list consisted mainly of tasks such as cleaning, cooking, sewing and doing all other errands which were necessary in the premises of defendant company. Throughout her employment with the company, it did not emerge that the company suffered from any financial difficulties. On the contrary, a director sitting on the company’s board testified that the turnover of the company increased and the employees on their payroll had also increased. However, one fine day, and after about one year and a half after employment, the plaintiff received the news that her employment with the company was being terminated on grounds of redundancy. During the case hearing it emerged that the role of the plaintiff following her termination was absorbed by different individuals and third party companies. In fact, a number of receipts issued by a cleaning company were presented.

In its judgment, the Tribunal took into consideration a number of factors, particularly the fact that the company did not encounter any notable operational or financial difficulties throughout the plaintiff’s employment, and the fact that the plaintiff’s role did not cease. In this regard, the Tribunal commented that the role must disappear in order to present a case of true redundancy. In its judgment, the Tribunal also gave some advice as to the manner in which such dismissal should be tackled, particularly in view of the distressing effects which such an event can create.

On these grounds, the Tribunal proceeded to award the plaintiff €14,400 as compensation for unfair dismissal.

Dismissing an employee could be a very difficult decision to take. Due consideration of all the factors present in such dismissal could prove to be the key in ensuring that such dismissal is strictly necessary and justified at law. Nevertheless, a fine line can exist in arriving to such decision.

Dr Chris Vella was legal counsel for plaintiff.

Dr. Christopher Vella

Commercial Law - Civil Law - Employment Law

This commentary should not be regarded as legal advice, If you are facing legal issues affecting your job or your employees, kindly contact us so we can assist.

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