On the 15 September 2021, in the case 'Albert Gyorgy vs. Crystal River Cruises Manning Ltd', the Court of Appeal in its inferior jurisdiction, presided over by Mr Justice Lawrence Mintoff, declared, among other things, that the Industrial Tribunal was not the competent court to determine a seaman's unfair dismissal case. The ordinary courts were vested with jurisdiction.
Mr. Albert Gyorgy, a Chief Engineer, instituted unfair dismissal proceedings against his employer, the Maltese company Crystal River Cruises Manning Ltd, before the Industrial Tribunal after his employment on board the vessel 'Crystal Bach' was abruptly terminated, allegedly, without justification, valid at law on 15 November 2019.
He claimed to have been diligent in his work and that he never had incidents in the past, nor had he ever received any warnings about his conduct prior to his dismissal.
Recalling the incident which led to his dismissal, Gyorgy explained that on the day when he was travelling back home, he had obtained permission from the captain to disembark the vessel early before its arrival at its final destination. This not to miss his flight that very same morning. Before leaving the vessel, he arranged for another engineer to replace him in line with maritime requirements, which required an engineer to be on board at all times.
River Cruises Manning, on the other hand, reacted by dismissing him instantly.
Gyorgy protested and challenged his employer's decision to terminate his employment to be unfair and taken for no good reason and without hearing his version of events.
Faced with this situation Gyorgy, requested the Industrial Tribunal:
- To declare that he was unfairly and unlawfully dismissed from his employment, and that his dismissal contravened the provisions of the Malta Employment and Industrial Relations Act, Chapter 452 of the Laws of Malta, and
- To order his employer to provide him with adequate compensation.
Crystal River Cruises Manning Ltd, in reply, contested the jurisdiction of the Industrial Tribunal to determine this dispute. Its principal argument was that the Tribunal did not have jurisdiction over "seamen" as such term was defined in the Merchant Shipping Act, and that Gyorgy as chief engineer was effectively a 'seaman'.
The defendant further stated that the applicable law regulating Gyorgy's contract of employment was the Merchant Shipping Act, Chapter 234 of the Laws of Malta, which vested jurisdiction in the ordinary courts and not the Industrial Tribunal.
Article 39 of the Employment and Industrial Act expressly excluded seamen employed on ships under the provisions of the Merchant Shipping Act from the scope of its provisions on termination of employment:
"Article 39: The provisions of articles 36, 37 and 38 shall not apply in respect of seamen employed on ships under the provisions of the Merchant Shipping Act; and in the event of any conflict between any of the provisions of the said Act and any of the provisions of this Act, the former shall apply."
With regards to the merits, it alleged that it was untrue that Gyorgy was denied the opportunity to justify his actions. The decision was only reached after taking into account his defence. The employer also made reference to a specific clause in the employment contract which provided, inter alia, that employees who disembarked the vessel without permission could be dismissed at the employer's discretion without notice.
On the 8 February 2021, the Tribunal affirmed its competence, and rejected Crystal River Cruises' plea of its lack of jurisdiction.
It reasoned that it was not divested of jurisdiction by the general exclusion provision, article 39, as it deemed the role of a 'chief engineer' to be akin to a 'master' of a vessel, and consequently not fitting within the definition of 'seaman'.
Reference was made to a similar case of unfair dismissal of a master of a vessel (Appeal No 30/2015 Judge Anthony Ellul) where it was held that the Industrial Tribunal was exclusively empowered to decide a dispute of unfair dismissal of a master under the Employment and Industrial Relations Act.
A 'master' was not included in the definition of 'seaman' and came within the scope of the Employment and Industrial Act. By analogy, the Tribunal found that the same reasoning applied in the circumstances of this case.
It also noted that Gyorgy had granted a special power of attorney to his legal counsel, which was submitted to and accepted by the Tribunal, and that the necessary procedural requirements had been observed.
Aggrieved by the decision of the Tribunal, Crystal River Cruises appealed, calling for its revocation and for the Court to uphold its claims – primarily that the Tribunal lacked jurisdiction to determine this case, and that the Merchant Shipping Act, Chapter 234 of laws of Malta applied in the circumstances.
River Cruises Manning pleaded that the provisions on termination of employment in Chapter 452 (Employment and Industrial Relations Act) were not applicable and that the term 'seaman' also included a chief engineer.
River Cruises Manning reiterated that it was the ordinary courts which had jurisdiction to determine this dispute. The relevant provisions in the Merchant Shipping Act were Articles 114, 129, 129A, 130, 141, 142 and 145.
It further contended that, even if this Court were to find that the Tribunal had jurisdiction, it should apply the special provisions of our Merchant Shipping Act, Chapter 234 and not Chapter 452.
The Court accepted River Cruises Manning's appeal.
The Industrial Tribunal did not have jurisdiction
The Court agreed with River Cruises Manning that the post of 'chief engineer' fell within the definition of a 'seaman' as defined in terms of the Merchant Shipping Act, and that the Merchant Shipping Act regulated his contract of employment rather than the Employment and Industrial Relations Act.
This meant that the ordinary courts were vested with jurisdiction to determine this case and not the Industrial Tribunal.
The court did not consider a 'chief engineer' to be co-equivalent to a master of a vessel.
The Merchant Shipping Act provisions (Chapter 234) particularly Articles 114, 130, 145 and Articles 169 et seq. applied to seamen, such as a chief engineer, serving on board Malta registered vessels, underlined the court. This was an ad hoc law specifically dealing with seamen's contract of employment and it followed therefore that this law should apply to the current dispute.
For these reasons, on 15 September 2021, the Court of Appeal gave judgement by revoking the decision of the Industrial Tribunal of 8 February 2021, and by declaring that the Tribunal did not have jurisdiction to determine this unfair dismissal case.
The author would like to thank Sasha Muscat, Advocate at Ganado Advocates for her assistance in the preparation of this law report.
This article was first published in the Malta Independent.
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