Reinstatement of Employee after Finding of Unfair Dismissal

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This article was written by​ Dr Christine Calleja and Tessa Borg Bartolo

In a recent judgment, 67/2020 LM, the Court of Appeal dealt with a case where an employee was claiming to have been unfairly dismissed by his employer on account of a medical condition - Obstructive Sleep Apnoea.

The employee had been diagnosed with this condition by a professional in the field after multiple warnings were given to him by his employer in this regard. The employer had brought to his attention the numerous occasions in which he was found sleeping while at work, as well as other instances in which the employer was unhappy with his performance and attitude. The employee was finally called before the internal Disciplinary Board which decided to terminate his employment. The employee appealed this decision before the Board of Appeal, wherein the decision of the first Disciplinary Board was confirmed.

The employee filed proceedings before the Industrial Tribunal, which decided that the dismissal was unfair, and that the employee was to be reinstated in the position which he held within the employing company, subject to a list of conditions. However, his request for compensation was rejected by the Tribunal. The Tribunal reasoned that the period during which he had been unemployed, from the date of his dismissal until a decision of the Tribunal was given, was to be considered as a period of suspension without pay as a disciplinary measure. The Tribunal reasoned that the plaintiff was indeed responsible for poor performance at work and his condition did not exonerate him totally from such responsibility. The plaintiff felt aggrieved by this decision and filed an application before the Court of Appeal.

The Court of Appeal agreed with the Industrial Tribunal and outlined the powers of the same Tribunal. It noted that the Tribunal was empowered, by virtue of Article 81(1) of Chapter 452 of the Laws of Malta, to reinstate the employee back into his previous employment while also imposing conditions on such reinstatement. The Tribunal had given a detailed explanation as to how it had arrived at its decision after considering, apart from other issues of performance, the fact that whilst it was true that the plaintiff did suffer from a medical condition, he had never done anything about it.

The Court of Appeal rejected the appeal brought forward by the employee and confirmed the decision of the Industrial Tribunal in its entirety.


This document does not purport to give legal, financial or tax advice. Should you require further information or legal assistance, please do not hesitate to contact Dr. Christine Calleja.

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