Insights

In its judgement dated 16 March 2022, in the names of NV vs Bilom Construction Limited, the Court of Appeal, presided over by the Honorary Lawrence Mintoff, overturned a decision of the Industrial Tribunal as the facts were not assessed correctly and the decision was not in line with the law.

The facts of the case were as follows: NV, the plaintiff, appealed a decision given by the Industrial Tribunal on the 25 June 2021 in which it held that the defendant company, Bilom Contruction Limited, had a good and sufficient cause to terminate NV’s employment.

NV was employed on an indefinite contract of employment with the defendant company as a shutter/steel fixer/builder from 23 February 2015. On the 18December 2018 NV was involved in an accident at the place of work, where he slipped while standing 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 was had to resort to injury leave. The plaintiff was called to appear before the Medical Board of the Social Security Department in April, May and June 2019, and on each occasion, he was declared as unfit for work. In his last appearance before the Board, NV was given a period of thirteen weeks of injury leave at the end of which, his condition was to be reviewed again by the Board. NV also claimed that during July 2019, the defendant company requested him to return to work, even though he was certified as being unfit for work. The plaintiff claimed that after his sick leave, he returned to work but was still unable to carry out any work, so he stopped reporting to work. On the 2August 2019 the defendant company terminated the employment of NV citing health reasons as the cause for termination. On the 9 August 2019, the plaintiff called the company’s office and collected his last salary and other dues to him until the termination date.

NV appealed on the grounds that the Industrial Tribunal had failed to consider the provisions on termination found in the Employment and Industrial Relations Act, in particular article 36(15), which provides that a contract of employment cannot be terminated by the employer during a period of incapacity for work of the employee caused by personal injury by accident arising out of, and in the course of, employment. This protection against termination does not apply beyond the first twelve calendar months of incapacity.

In addition to this, NV appealed the fact that the Industrial Tribunal claimed that he was working with another competitor company during April of 2019, whilst still on the books of the defendant company.

On the other hand, the defendant company countered to the appeal by stating that NV was precluded from appealing on points of fact, and that in line with the provisions set out in the Employment and Industrial Relations Act, he could only appeal on points of law. Moreover, the defendant company claimed that there was no evidence to show that the plaintiff had suffered an injury during the course of his duties and as a result of this, the protection set out in the Employment and Industrial Relations Act against termination during a period of injury leave does not apply to this case. The defendant company also argued that the Industrial Tribunal had assessed the facts of the case correctly.

The Court of Appeal held that the Industrial Tribunal had failed to consider the provisions which protect employees from being terminated during a period of injury leave. Based on the evidence, the Court of Appeal concluded that NV was injured during his employment and because of this, the defendant company was precluded from terminated his employment for a period of 12 calendar months. The court considered that NV had appeared several times before the Social Security Board and had been certified as unfit for work.  The court also considered the fact that NV had a good employment history, there were no complaints on his conduct at work, and he had no history of absences. The Court of Appeal also considered that the Industrial Tribunal was wrong to conclude that NV was working with a competitor during April 2019.

The defendant company argued that the fact that NV had secured immediate employment after termination showed that he was not really injured but that his injury was a pretext to avoid carrying out 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. Moreover, the Court of Appeal also noted that there no evidence to show that NV was really working as a shutter installer with a competing company. Moreover, the Court of Appeal held that it could not conclude that NV was working with a competitor prior to his termination with the defendant company.

On the basis of this evidence, the Court of Appeal was of the view that the Industrial Tribunal was wrong and that the conclusion of the Industrial Tribunal could not be considered correct.  For these reasons, the Court of Appeal determined that NV had been unfairly dismissed and the sent the judicial acts to the Industrial Tribunal so it could determine an adequate compensation in favour of NV.

This article was first published in the Malta Independent.