The Court of Appeal reviews facts established by the Industrial Tribunal
In its judgment of 16 March 2022, on behalf of NV v Bilom Construction Limited, the Court of Appeal, presided over by the Honorable Lawrence Mintoff, set aside a decision of the Industrial Tribunal on the ground that the facts had not been assessed correctly and the decision was not in accordance with the law.
The facts of the case were as follows: NV, the plaintiff, appealed a decision given by the Industrial Tribunal on 25 June 2021 in which it ruled that the defendant company, Bilom Contruction Limited, had good and sufficient reason to terminate the employment of NV. .
NV has been employed on an indefinite contract with the defendant company as a shutter / fixer / steel builder since 23. February 2015. On 18 December 2018 NV was involved in an accident at work, where she slipped while on a concrete brick. Consequently, he was injured and diagnosed with a slip disk. NV alleged that the defendant company had not provided a safe working environment and had to resort to injury leave. The plaintiff was called to appear before the Medical Board of the Department of Social Security in April, May and June 2019, and on each occasion, was declared unfit for work. In his last appearance before the Board, NV was granted a period of thirteen weeks of injury leave at the end of which his condition was to be reviewed by the Board. NV also claimed that during July 2019, the defendant company asked her to return to work, despite being certified as unfit for work. The plaintiff claimed that after his sick leave, he returned to work but was still unable to do any work, so he stopped reporting for work. On 2 August 2019, the defendant company terminated NV’s employment, citing health reasons as the cause of termination. On August 9, 2019, the plaintiff called the company office and collected his last salary and other payments to him until the date of termination.
NV appealed on the ground that the Industrial Tribunal had failed to take into account the termination provisions contained in the Employment and Industrial Relations Act, in particular section 36 (15), which provides that an employment contract cannot be terminated by the employer over a period of time. incapacity for work of the employee caused by personal injury by accident resulting from, and in the course of, employment. This termination protection does not apply beyond the first twelve calendar months of incapacity.
In addition, NV appealed against the fact that the Industrial Tribunal claimed that it was working with another competing company during April 2019, while it was still in the books of the defendant company.
On the other hand, the defendant company responded to the appeal by stating that NV was precluded from appealing on points of fact, and that according to the provisions set out in the Employment and Industrial Relations Act, it it could only appeal on points of law. . In addition, the defendant company claimed that there was no evidence that the plaintiff had suffered an injury in the performance of his duties and, as a consequence, the protection provided for in the Employment Act. and Industrial Relations against termination during a period of injury leave does not apply to this case. The defendant company also argued that the Industrial Tribunal had correctly assessed the facts of the case.
The Court of Appeal ruled that the Industrial Tribunal had failed to take into account the provisions protecting employees from termination during a period of injury leave. On the basis of the evidence, the Court of Appeal concluded that NV was injured during his employment and as a result, the defendant company was precluded from terminating his employment for a period of 12 months. calendar. The court found that NV had appeared several times before the Social Security Board and was certified unfit for work. The court also took into account the fact that NV had a good employment history, no complaints about his behavior at work, and no history of absences. The Court of Appeal also held that the Industrial Tribunal erred in concluding that NV was working with a competitor during April 2019.
The defendant company argued that the fact that NV had obtained a job immediately after termination showed that he was not really injured but that his injury was an excuse to avoid performing his duties. On this point, the Court of Appeal noted that the individual was a third country national and therefore there was an urgency to secure immediate employment as otherwise he would have had to leave Malta. In addition, the Court of Appeal also noted that there was no evidence that NV was actually working as a shutter installer with a competing company. In addition, the Court of Appeal ruled that it could not conclude that NV was working with a competitor prior to its termination with the defendant company.
On the basis of this evidence, the Court of Appeal considered that the Industrial Tribunal was wrong and that the conclusion of the Industrial Tribunal could not be considered correct. On those grounds, the Court of Appeal found that NV had been unfairly dismissed and referred the case to the Industrial Tribunal so that it could determine adequate compensation for NV.
Lara Pace is Associate with Ganado Advocates