Warning letters in Employment

Authors: Ann Bugeja & Christine Borg Millo

In the determination of the valid termination of an employee from their employment based on a good and sufficient cause,[1] such termination must be justified by the employer. This stems from various case-law on the matter.

In practice, the justification of termination based on a good and sufficient cause implies that the employer must firstly provide a formal charge letter enlisting the reason/s for which attention is being drawn to the employee. Every charge letter would then need to be followed by an adequate disciplinary hearing. Depending on the outcome of the hearing, this may then result in the issuance of the warning letter, where one (1) to three (3) written warning letters is the norm to highlight the insufficient action/s of the employee.

The number of charge letters, disciplinary hearings and/or warnings provided by the employer is namely dependent upon the specific case at hand and the seriousness of the actions of the employee, which merit the decision being taken.[2]

In the case of Reuben Fenech vs The Malta Financial Services Authority, decided by the Industrial Tribunal on the 20^th of September, 2024, the Chairperson Sir Joseph Gerada explained how the typical composition of warning letters in an employment context requires that it must be:

1. Clear about the issue in question;
2. Incisive and straightforward when declaring that the issue at hand is not being tolerable; and
3. Firm in that who issues the warning letter must clearly and without doubt state that a repetition of the issue would result in termination of employment.

In his regard, the Tribunal made reference to Selwyn wherein he states that:

“The warning letters should make clear the nature of the conduct which will not be tolerated and spell out in no uncertain terms that the consequences of a failure to heed the warning will be a dismissal”.

Should the warning letter not contain such information in a direct manner, it loses its purpose and may contribute towards the insufficient and unjustified termination of employment of an employee. In this regard, the Tribunal also exclaimed that a feedback letter could never be used as, or replace the usage of, a warning letter because their use and function is different. In employment, a feedback letter is commonly used by the employer to enhance employee performance by identifying areas for improvement in productivity, unlike a warning letter which holds the function of ‘alerting’ the employee.

As an example, in the case of Owen Catania vs Fiona Farrugia, decided by the Court of Appeal (Inferior jurisdiction) on the 19^th of October 2022, by Hon. Judge Lawrence Mintoff, the Court confirmed the verdict of the Industrial tribunal on appeal, and decided in favour of the employer in that the termination was just and based on a good and sufficient cause, coupled with sufficient evidence of warning letters regarding several matters which finally led to his dismissal. The dismissal in question was namely due to the deterioration of the behaviour of the employee in the aggressive conduct shown by the employee, the use of his personal mobile phone during working hours and that the employee displayed a sense of entitlement during working hours of his employment.

The judgment also made reference to Emanual Mifsud vs AX Hotels Limited, decided on the 28^th of February 2020, wherein the Chairperson Dr Anna Mallia declared that in the matter of dismissal from employment, a number of principles emerging from English doctrine must be satisfied, one of which is that:

“L-addebitu tan-nuqqas jew tal-imġiba ħażina jrid ikun speċifiku, jiġifieri għandu jkun formulat b’mod ċar tal-aspetti essenzjali u materjali tal-fatt denunzjat. Mhux aċċertat allura li l-addebitu jkun bażat fuq sempliċi suspetti vagi jew ridott għall allużjonijiet ġeneriċi”

Overall, therefore, any charge which should precede a warning letter must be specific and formulated in a clear form in that the essential aspects for which the dismissal is taking place must be material, and not vague or generic. The warning letter which follows would thus require to reflect such points necessary for the rehabilitation of the employee, and the time frame for this in extreme circumstances, for the valid termination based on a good and sufficient cause in terms of local employment law.

[1] As defined in article 36 (14) of the Employment and Industrial Relations Act, Chapter 452 of the laws of Malta;

[2] As moreover confirmed in the case of Charlot Scerri vs ST Microelectronics (Malta) Limited on the 1^st of March, 2006 by the Court of Appeal (Inferior jurisdiction) in that: “Ta’ importanza…huwa l-prinċipju tal-proporzjonalità bejn l-addebitu u s-sanzjoni li tiġi komunikata mill-prinċipal. Dan fis-sens illi l-provvediment dixxiplinarju jrid ikun in relazzjoni mal-għażla u l-miżura tas-sanzjoni u in rapport għall-gravità tan-nuqqas; s’intendi, valutata fl-entità tagħha, soġġettiva u oġġettiva.”