12th January 2021
Author: Mattea Pullicino, Associate
It’s safe to say that 2020 has been quite the year for us all, the Industrial Tribunal (‘Tribunal’) included.
Sittings before the Tribunal were suspended for a substantial amount of time over 2020 due to the pandemic, naturally resulting in delays, however we did see the conclusion of several pending claims.
Under Maltese Law the Tribunal is neither obliged to provide a detailed rationale behind a decision (it is enough for the Tribunal to indicate that it took into account all of the evidence presented), nor the basis upon which damages have been liquidated, thereby leading to many uncertainties. Historically, many decisions would only express a high-level consideration of facts and a brief decision upholding or rejecting the claim with a quantum of compensation, if any.
There are, however, certain key factors which the Tribunal is seemingly considering in determining compensation, when such is due. Such factors include inter alia, the period of time that one remained unemployed following the unjust dismissal from employment, the length of the employment relationship between the employee and employer, and any reduction in earnings upon new employment.
In recent years there has been an apparent upward trend in compensation being granted to successful plaintiffs, thereby increasing the risks for employers significantly, and 2020 was no exception. In fact, in some decisions the Tribunal ventured into somewhat new territory, encouraged also by Court of Appeal judgements which called for more diligence and attention to detail particularly when a claimant presents evidence of damages which goes unchallenged.
If one were to compare the total average of compensation in cases won by the plaintiff in 2019 to 2020, the 2020 figure is more than double that of 2019, in that the total average for 2020 is just over 26,500 Euro. The lowest amount granted to a successful plaintiff was 800 Euro, whilst the highest amount was 140,000 Euro. By way of example, the Tribunal awarded 74,600 Euro to an employee who was found to have been unfairly dismissed on the premise of a sham redundancy (pre-COVID).
The consequences of the COVID pandemic are still ongoing and 2021 continues to put employers to test. We are now starting to see claims relating to measures implemented by employers as a reaction to COVID. How the hardships brought about by the pandemic will impact compensation awarded by the Tribunal is yet to be seen. We would expect that a Tribunal would not go easy on any employer that may be perceived to have dishonestly exploited the pandemic to the detriment of an employee.
It is no secret that success in the Industrial Tribunal, as with any litigation suit is never guaranteed, and it is for this very reason that advice should be sought at the outset prior to action being taken or otherwise, as indeed this could end up saving a client a lot of time and expenses down the line.
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©Fenech & Fenech Advocates 2021
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