The Four-month rule to file

Authors: Ann Bugeja & Christine Borg Millo

The Four-month rule to File

As a juridical body, the Industrial Tribunal has exclusive competence to settle trade disputes and to consider and decide all cases of alleged unfair dismissals. This is as established in terms of the Employment and Industrial Relations Act (Chapter 452 of the Laws of Malta, and hereinafter referred to as the “Act”).

In this discussion, a case of unfair dismissal is defined by the Act as constituting four (4) scenarios. It may mean:

• The termination by the employer of an indefinite contract of employment, not made on the grounds of redundancy or else not made for a good and sufficient cause; or
• The dismissal made in contravention of article 64(4) which relates to an act done by the employee in contemplation or furtherance of a trade dispute and in pursuance of a directive issued by a trade union; or
• The termination which, although made on grounds of redundancy or for a good and sufficient cause, is discriminatory and includes any failure by the employer to re-employ such person; or
• The termination by the employer, of a fixed term contract of employment, prior to its expiration.

Prescription plea in limine litis

Where it is alleged that an employee has been unfairly dismissed by an employer, the matter is referred to the Tribunal by means of a referral in writing made by the employee alleging the breach, or by some other person acting in the name and on behalf of such employee. The referral has to be done by not later than four (4) months from the effective date of the alleged breach.[1] The effective and alleged breach of the employment is when the working relations between the employer and employee are indeed terminated. Moreover, the four (4) months begin to run immediately and automatically from the stipulated date of the alleged breach – which in cases of unfair dismissal, would mean the date of the termination of employment of the employee.

Essentially, a late submission would result in the case being time-barred and therefore outside the legitimate timeframe according to law.

Case law

The four (4) month time-bar request in front of the Industrial Tribunal sittings must be raised in limine litis, and a failure to raise such a plea in the initial stages of the case, through the application or note of Submissions, filed at the Court Registry, would amount to a tacit renunciation to such plea.[2] Ulterior pleas can only be raised at a later stage if it shown that:

1. The matter giving rise to such plea did not in fact exist at the time of the reply; or
2. The respondent could not have possibly known of its existence at the time of the reply.

This was held in the cases of Benjamin Bugeja vs British High Commission (Malta) as well as Glynis Valerie Pace vs British High Commission (Malta) both decided on the 1^st of November 2011. In these two (2) cases, regarding unfair dismissal, the four (4) month plea was not regularly raised by means of an application and therefore the Tribunal abstained from deciding upon it, and shifted to investigate the facts of the case on whether the applicants in question were unfairly dismissed or otherwise.

In the situation that the 4-month plea been raised at the initial stages of the proceedings, the result would have been an extinguishment of action, meaning it is peremptory in nature.

In these two cases, the Tribunal also explained that the four (4) month period set out by the Act is not a period or plea of prescription. Hence, the principle that a plea of prescription can be raised at any stage of proceedings, even in appeal, does not apply.[3]

[1] Article 75 (1) of the Act;

[2] Article 2108 and 2109 of the Civil Code (Chapter 16 of the Laws of Malta);

[3] Refer to article 2112 of the Civil Code.