Ship­ping com­pany em­ployee awarded €30,000 for un­fair dis­missal

Malta Independent - - NEWS - Neil Camil­leri

A for­mer ship­ping com­pany em­ployee who was made re­dun­dant had ac­tu­ally been sacked to make way for an­other em­ployee, an Ap­peals Court has ruled.

Vanessa Fenech went to the In­dus­trial Re­la­tions Tri­bunal in 2012 af­ter she was dis­missed by her em­ployer, SL Ship Man­age­ment Com­pany Ltd, with the ex­cuse that busi­ness had slowed down and a re­struc­tur­ing ex­er­cise was needed.

Ms Fenech was told that an ex­ist­ing em­ployee would ab­sorb her du­ties but later found out that the com­pany had em­ployed some­one from out­side to do the job.

She ar­gued that, if the va­cancy were to arise again within a year, she had the right of first re­fusal.

The com­pany said it had acted within its rights and that Ms Fenech’s re­place­ment had pro­vided his ser­vices to the com­pany, and the group, for sev­eral years.

The In­dus­trial Tri­bunal ruled in 2014 that Ms Fenech had been un­fairly dis­missed and that her ter­mi­na­tion was cer­tainly not a re­dun­dancy. The com­pany was or­dered to pay Ms Fenech €30,000 in com­pen­sa­tion.

The com­pany ap­pealed and in­sisted that it had re­sorted to a ‘last-in-first-out’ sys­tem in its re­struc­tur­ing. Ms Fenech’s role, it said, had been out­sourced to a more ex­pe­ri­enced per­son. The com­pany said the woman had failed to in­voke the spe­cial le­gal pro­tec­tion af­forded to em­ploy­ees dur­ing a change in com­pany own­er­ship, de­spite know­ing that her job had trans­ferred to an­other com­pany due to a de­crease in the vol­ume of trade.

Mr Jus­tice An­thony El­lul, pre­sid­ing over the Court of Ap­peal, said that a re­dun­dancy re­quired the post to be abol­ished.

The court said that for the ‘lastin-first-out’ ar­gu­ment to be valid, it needed to be shown that the em­ployee had first been trans­ferred to the ac­quir­ing com­pany, who would then give the em­ployee no­tice of ter­mi­na­tion. This had not hap­pened, it ob­served.

The court also noted that Ms Fenech had been fired around a year af­ter busi­ness started to drop and that no other em­ploy­ees had been sacked.

There was no ev­i­dence that the woman was in­formed of the pos­si­bil­ity of re­dun­dancy be­fore her em­ploy­ment was ter­mi­nated. This put the com­pany’s ar­gu­ments in doubt.

Fur­ther­more, cor­re­spon­dence pre­sented in court showed that busi­ness was ac­tu­ally in­creas­ing in the months be­fore Ms Fenech’s ter­mi­na­tion, and her re­spon­si­bil­i­ties had been in­creased.

Other emails showed that Fenech had a strained re­la­tion­ship with her new su­pe­rior, who had even started dis­ci­plinary pro­ceed­ings against her.

In the ter­mi­na­tion let­ter, Ms Fenech was specif­i­cally told that her du­ties were to be ab­sorbed by the cur­rent se­cu­rity su­per­in­ten­dent. But her job started to be per­formed by an em­ployee in an­other com­pany.

The court also re­jected the com­pany’s claims that the €30,000 fig­ure was un­jus­ti­fied and un­ex­plained. The sum was more than jus­ti­fied, it said, and should be paid in its en­tirety with im­me­di­ate effect.

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