Definite Employment Contracts And Recourse Before The Industrial Tribunal

Following the judgment Galea Waldemar David vs University of Malta (Appeal no. 35/2018), delivered by the Court of Appeal on the 25th of January 2019, the jurisdiction of the Industrial Tribunal (the “Tribunal”) was put under scrutiny. In brief, the University appealed from a decision of the Tribunal which had declared itself as having the competence to decide on matters relating to unjust dismissal of an employee engaged under a fixed term contract. The Court of Appeal noted the lack of clarity in the legal drafting, which in turn gave rise to anomalous situations. The Court of Appeal analysed various judgments and concluded that given that the complaint did not fall within the competence of the Tribunal in terms of Art. 75 (1)(a) and (b) of the Employment and Industrial Relations Act (the “EIRA”)1Chapter 452 of the Laws of Malta, the tribunal could not exercise jurisdiction.

In November 2020, a Bill was tabled in Parliament with the aim of clarifying the jurisdiction of the Tribunal, particularly in cases relating to unfair dismissal of employees engaged under a fixed or definite term contract. This lacuna was rectified by Act LVIII (the “Act”) which was enacted in December 2020. The primary scope of this Act was to extend the definition of “unfair dismissal” as contemplated under Article 2 of the EIRA to encompass workers engaged under a fixed term contract.

With the exception of fixed or definite term contracts, which have to date expired, workers who are wrongfully dismissed by their employer may now resort to the Tribunal. No other substantial amendments were implemented to the provisions dealing with fixed-term contract. Hence, the rules on payment of half the full wages accrued where either of the parties terminate the contract in the absence of good and sufficient grounds still apply, with the exception that now, the Tribunal is also vested with the authority of adjudicating whether or not the dismissal was for a good and sufficient cause or otherwise. Whether or not the Tribunal is enabled to award other remedies remains to be seen.

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