The Industrial Tribunal
The Industrial Tribunal
Competence and Composition
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, discriminatory treatment, breach of the principle of equal pay for work of equal value, victimisation and harassment and this 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”).
Disputes between parties at the Tribunal are heard in public, but it may also hold private sittings, as necessary. No application fee or court fees are payable, excluding the expenses of the transcripts which are obtained at a reasonable fee (if needed) from the Law Courts, and the fee due to the lawyer assisting the applicant.
Notably, the composition of the Tribunal changes according to what the case is about. In fact:
- In cases of discrimination, harassment, victimisation and/or the principle of work of equal value, the Tribunal is always composed of one (1) chairperson (as per article 30 (3) of the Act);
- In cases falling within jurisdiction of Tribunal as stated in article 75 of the Act, like cases of unfair dismissal and claims for sums due to the employee post termination (the penalty), the Tribunal is always composed of one (1) chairperson alone (as per article 73 (4) of the Act);
- In all other cases, mainly industrial disputes, the Tribunal shall consist of Chairperson and two other members selected by Chairperson (as perarticle 73 (3) of the Act).
Employment disputes, inter alia, may be settled by resorting to the Industrial Tribunal or by means of negotiations or discussions between the parties.
A dispute resolution process for an employee will typically commence from a conflict, leading to a grievance. This will typically be followed by a management decision, which, following unsuccessful negotiations between the parties will lead to the case being instituted and then heard before the Industrial Tribunal.
Local legislation has no provisions for mandatory judicial mediation with respect to unfair dismissal, discrimination and harassment. However, if parties do opt for mediation, both private and state mediation are available (although this is not a popular choice). In the event that there is a breach of the employment contract, recourse must be sought to the Maltese Courts and not to the Industrial Tribunal.
On the other hand, decisions given by the Industrial Tribunal have the force of a Court, are binding on both parties, and are equally as enforceable. Industrial Tribunal decisions may only be appealed on points of law. Such appeal shall be made by an application to the Court of Appeal and shall be filed by not later than twelve (12) days from the date of the decision of the Industrial Tribunal.
Cases of Discrimination, Victimisation and Harassment
The Industrial Tribunal also hears cases of discrimination, harassment and victimisation. The employee who alleges the breach by the employer may lodge a complaint within four (4) months from the alleged breach to the Industrial Tribunal to hear such complaint and carry out any investigation as it deems fit.
Once the Tribunal is satisfied that the complaint is justified, it can take any measure as it deems fit, such as:
- The cancellation of any contract of service of the employee;
- The cancellation of some clause of the contract of service which is deemed discriminatory;
- The cancellation of a collective agreement which if affecting the employee;
- The ordering of payment of compensation for loss and damage sustained by the aggrieved party as a consequence of the breach.
Cases of Unfair Dismissal
Cases relating to unfair dismissal would also fall under the jurisdiction of the Industrial Tribunal.
Where it is alleged that an employee has been unfairly dismissed by an employer, the matter shall be referred to the Tribunal. This can be done 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. Once again, this has to be done by not later than four (4) months from the effective date of the alleged breach. If the complaint is found to be well-founded, the Industrial Tribunal may either order the:
- Compensation; or
- Reinstatement; or
- Reengagement; or
(iii) Both reinstatement/reengagement and compensation for lost wages.
In determining the amount of such compensation, the Industrial Tribunal takes into consideration the real damages and losses incurred by the employee who was unjustly dismissed, as well as other circumstances, including the employee’s age, qualifications, employability and skills as may affect the employment potential of the said employee.
Whereas reinstatement refers to the situation where the employee returns to his former position, as if the dismissal never took place, re-engagement comprises of the re-employment of the party who had primarily been dismissed, under a new contract, whilst still possessing comparable working conditions to his previous position, prior to the dismissal.
However, the Industrial Tribunal very rarely orders reinstatement because:
- it is rarely requested by the employee; and/or
- many times, the employee has found new employment due to the length of time these cases take to be concluded.
Furthermore, no reinstatement can be requested by the employee, and ordered by the Court in cases where the employee holds a position of trust.