Employment and Industrial Relations Law

The Reinstatement of an Employee Following a Case of Unfair Dismissal

22 Feb 2021

4 min read

Author: Ann Bugeja

The Employment and Industrial Relations Act[1] (‘EIRA’) regulates the powers of the Industrial Tribunal (‘Tribunal’) in cases of dismissal. Article 81(1) of the EIRA states that upon concluding that the dismissal of an employee was unfair, and upon the specific request by the complainant, the Tribunal may proceed with the reinstatement or re-engagement of such employee.

Under Maltese law there exists no definition as to what ‘reinstatement’ constitutes. However, it is understood that this involves placing the employee back in his/her former position prior to dismissal and thus, retaining the same employment terms. The Tribunal will, at its sole discretion, analyse whether it is feasible to order such reinstatement or re-engagement, and whether this would be practicable and in accordance with equity. If these conditions are fulfilled, and upon the discretion of the Tribunal, the reinstatement or re-engagement of the complainant may be ordered.

It is significant to note that the complainant must make the specific request for reinstatement or re-engagement in the statement of his/her case, as this is not determined automatically (‘ex officio’) by the Tribunal. In addition to this, when the complainant is employed in a managerial or executive post, a role which requires special trust in the person, the Tribunal may not order the employee’s reinstatement or re-engagement to such post.[2] However, where the complainant was appointed or selected for such managerial or executive post by his fellow workers, the Tribunal may reinstate or re-engage the complainant to the post held by him before such appointment or selection.

In cases where the request is not made, or when the request is made but not accepted by the Tribunal, the Tribunal shall grant compensation, after having considered the real damages and losses incurred by the worker who was unjustly dismissed, as well as other circumstances, such as the worker’s age and skills.

Olaf Woods vs. Vivaldi Hotels Operations Limited

In the case of Olaf Woods vs. Vivaldi Hotels Operations Limited,[3] Mr. Woods was employed by the Golden Tulip Vivaldi Hotel on an indefinite part-time contract and occupied the position of a ‘Night Auditor’. On the 29th of January 2011, Mr. Woods received a letter from the Employment and Training Corporation (‘ETC’), informing him that his resignation was registered on the 2nd of January 2011. This dismissal seems to be linked to a specific episode wherein the employee was on duty, and contacted the General Manager to solve a problem. Coincidentally, this episode took place on the 2nd January 2011. Moreover, the employer linked the dismissal to other reasons and the Tribunal concluded that the dismissal was neither just, nor sufficient, and thus ordered the re-instatement of Mr. Woods to his former position whilst also ordering compensation of EUR 2,500 in favour of the employee.

Aldo Briffa vs. Malta Freeport Terminals Limited

In a more recent case of Aldo Briffa vs. Malta Freeport Terminals Limited,[4] the plaintiff was caught sleeping at work and a few days later, was diagnosed with obstructive sleep apnea (‘OSA’) by a Consultant respiratory physician. The physician stated that this condition is not a permanent one, and that Mr. Briffa should return to normal in a few weeks’ time.

However, following this incident, the employer terminated Mr. Briffa’s employment on the grounds of discipline and stated that over the past 4 years, Mr. Briffa’s record had got worse. He was terminated for several reasons including carelessness, negligence, and an unacceptable attitude, amongst others.

After considering all facts of the case, the Tribunal concluded that the termination was unjust and that the plaintiff should be reinstated to his employment, subject to various conditions. Furthermore, it did not award any compensation, due to the fact that the plaintiff’s behaviour at work was of a serious nature.

In light of the above, it is evident that a decision as to whether one should be reinstated following an unfair dismissal, is essentially within the discretion of the Industrial Tribunal. Furthermore, the Tribunal must consider all facts of the case in order to decide as to whether such reinstatement or re-engagement is viable, depending on the merits of the case at hand.

[1] Chapter 452 Laws of Malta

[2] Article 81(1), Employment and Industrial Relations Act, Chapter 452 Laws of Malta

[3]  Olaf Woods vs Vivaldi Hotels Operations Ltd, Industrial Tribunal, March 2012

[4] Aldo Briffa vs Malta Freeport Terminals Ltd, Industrial Tribunal, October 2020