Maltese employment laws focus primarily on employee protection at work, particularly by setting minimum thresholds for work conditions. Article 26 of the Employment and Industrial Relations Act protects current and prospective employees against discriminatory treatment at work, including "actions whereby the Employer knowingly manages the work, distributes tasks or otherwise arranges the working conditions so that an employee is assigned a clearly less favourable status than others on the basis of discriminatory treatment".

Should an employee feel that he or she was discriminated against regarding the conditions of employment, possibly leading to dismissal, he or she may lodge a complaint and trigger a case with the Industrial Tribunal within four months of the alleged breach. The latter is obliged to investigate and determine whether any compensation for loss or damages should be awarded to the aggrieved employee.

The following case is illustrative. On 26 July 2022, in the Patrick Borg Cardona vs Enemalta plc case, the Tribunal expounded on its competence as well as the threshold required for the employer's conduct to be considered as discriminatory.

The employee was engaged as an engineer with the Enemalta Corporation (now Enemalta plc) in 1995 and promoted to a managerial post in 2014. Concurrently, Enemalta had transferred all its employees to Engineering Resources Limited (the "Company") by virtue of the applicable Act. On 8 June 2017, Enemalta's acting Executive Chairman notified the employee that his employment was being terminated without giving a reason. When the employee emailed to ask for one ten days later he was told that it was because of company restructuring.

The employee claimed that he was victimized and aggrieved by several events that took place in the four months leading his termination. He tabled four claims:

  • His responsibilities were repeatedly reduced without giving him the reason. These decisions were communicated to by him Executive Chairman via emails on weekends and during approved vacation leave;
  • The Executive Chairman claimed that the he never agreed with his opinions, although the latter always followed protocol;
  • He was relieved of managerial duties on two CRT projects without being given a reason; and
  • The Executive Chairman used insulting and harsh language in his regard.

The employee lodged a complaint on 3 October 2017, alleging that Enemalta was abusive, arrogant, and discriminatory in his regard. In addition, he claimed that only a sitting Executive Chairman could fire him. Given that only an acting one did, the termination amounted to an abuse of power, the employee was victimized and owed compensation.

Since Enemalta's obligations had been assumed by the Company following the transfer, the former was deemed not to be party to the case and was thereby dismissed from the hearings. In turn, the Company argued that it was not the Tribunal competence to rule a claim of abuse of power. It added that originally the employee had incorrectly filed proceedings against the Executive Chairman directly and in his personal capacity, pointing out that it is only the employer who could be made party to the proceedings. It is for this reason, the Company argued, that the employee summoned it to the proceedings on 15 March 2018.

The Tribunal, while agreeing with these exceptions, nevertheless proceeded to determine whether any abusive or discriminatory treatment was suffered by the employee at the hands of the Company.

The Tribunal acknowledged that victimization arises from the employee's perception. However, quoting Norman Selwyn, it added that such perception must be reasonable for articles 26 and 30 of the Act to subsist.

In this context, the Tribunal took cognizance of two issues. First, in relation to the termination, not only was the employee aware of the purpose of the meeting which was held on 8 June 2017, but it transpired that there were approximately another 1,100 employees whose employment was terminated. Thus the Tribunal could not conclude that the Company discriminated or victimized the employee.

Secondly, there was the issue of alleged abusive language and behaviour. The Tribunal noted that several witnesses (who were also employed by the Company) testified that given the working environment and regular deadline pressures, certain language and tonality were normal. Therefore, that such tonality is interpreted as victimization or discrimination does not necessarily make is so.

Based on these considerations, the Tribunal concluded that the employee's allegations were purely subjective. It also recognized that the nature of the work may sometimes create tension and pressure on employees to perform as efficient as possible. The Tribunal therefore held that the Company did not inflict discriminatory or victimizing treatment with malicious intent on the employee. All the claims made by the latter were therefore dismissed.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.