Lack Of Due Process: Fair Or Unfair Dismissal?

In a recent judgment delivered by Malta’s Court of Appeal (Inferior jurisdiction) (“the COA”) on the 25^th March 2019, the COA reached some interesting conclusions which will serve as guidance to employers, employees, and employment law experts in their consideration of employment disputes based on similar circumstances. The facts of the case were as follows:

• The employee (“Appellant”) was engaged by an online betting company (“the Company”) on the 12 April 2012. He started working without a written contract of employment and was provided with a written contract of employment three months later.

• On the 31^st August 2012, the Appellant was informed by a work colleague, both verbally and by means of a sticky note, that he had to upload certain games on the Company’s online portal. Later that day, the Appellant could not find the written note, and given that he had received previous instructions on 26^th August 2012 stating that employees could not touch the live betting games, he decided not to contact anyone and did not upload the games.

• On 1^st September 2012, the Company informed the Appellant that his employment was terminated in view of his failure to upload the instructed sports betting events on the company online portal.

The Appellant contested the termination for want of a good and sufficient cause and also because of the Company’s failure to follow due process since he was not given any prior warnings before his employment was terminated. He therefore took his grievance before the Industrial Tribunal, claiming compensation for unfair dismissal.

On 10^th August 2015, the Industrial Tribunal rejected the Appellant’s claims and upheld the Company’s line of defence stating that the termination of employment was justified. The Appellant subsequently appealed the decision.

The COA analysed whether in this case due process was followed. The COA looked at the Company’s disciplinary code, which required the employer to request the employee to provide a written statement with respect to the allegations made against him. The Company did not contest the fact that the decision to terminate Appellant’s employment was taken without giving him any warning and before speaking to him. The Company argued that, had they spoken to Appellant, the reasons given by him to explain his conduct would not have made a difference to its decision to terminate his employment.

The COA, referring to foreign jurisprudence on the matter, deemed such reasoning by the Company unacceptable, since it would be possible for a dismissal to be unfair, but then not award any compensation given the employee had contributed to his dismissal with his actions or behaviour. The COA noted that Appellant admitted that he did not upload the games because the sticky note given to him was misplaced and he forgot about it. The COA noted that given that live betting was the main source of business of the Company, the Appellant’s statement that he simply forgot the instructions given to him by his colleague was untenable since he could have either noted these instructions down or else asked someone for clarifications. The COA did not accept the argument that the Appellant’s failure did not result in any lost profits for the Company, because this was due to the timely intervention of his manager, who uploaded the games on time.

The COA concluded that although the Appellant’s termination of employment was not done following the process outlined in the Company’s disciplinary code, the Appellant was not due any compensation, since the incident giving rise to the dismissal was sufficiently serious to warrant termination.