Freeport worker awarded €10,000 for unfair dismissal
A Freeport worker who was sacked for allegedly doing manual work at his cousin’s home while out on sick leave, has been awarded €10,000 for unfair dismissal.
Warren Mallia had been working at Malta Freeport Terminal Limited as a crane operator and truck driver since 2012 when one day in August 2021 he went to his relative’s house where his brother was carrying out some manual work.
He later claimed that he had gone there to check on his brother.
But he offered to lend a hand with the installation of a drainpipe on the roof and that was when he was spotted by a neighbour who happened to be an official working within the company’s human resources office.
She later reported him to their superiors for allegedly doing part-time work when he was out on sick leave, thus triggering disciplinary action.
The matter landed before the Disciplinary Board and subsequently the Appeals Board.
Mallia was fired for abusing sick leave and failing to declare his part time work, in breach of the company’s collective agreement. The worker claimed that his dismissal was unjust and abusive and thus pursued his grievance before the Industrial Tribunal.
He argued that a doctor had recommended that he could go out during sick leave and in fact had written “can go out” on his medical certificate. Therefore, he had done nothing wrong by visiting his relative’s home and had simply lent a hand while there.
His employer countered that sick leave abuse was a serious matter and could not be tolerated. Workers knew they faced dismissal if caught.
When deciding upon the issue, the tribunal highlighted certain irrefutable facts. The applicant’s medical certificate permitted him to go out. Mallia had done manual work at someone else’s home while out on sick leave and that amounted to abuse.
The tribunal observed that the allegation that Mallia was doing part-time work was not proven.
There was no evidence that he was paid for the work done at his cousin’s home.
The tribunal noted that when he appeared before the disciplinary board, Mallia did not disclose the fact that that was his cousin’s home. He later explained that he had purposely withheld that information because of a pending issue between his cousin and the neighbour who had reported him to his superiors.
Mallia feared that “she [the neighbour] would make [his] life hell” if he continued to work at the Freeport.
The tribunal was convinced that Mallia’s dismissal was a disproportionate measure. In fact, the collective agreement provided for a gradual escalation of disciplinary measures, starting with a written warning for a second offence and leading up to suspension without pay plus a written warning for a fourth offence.
From then on, the company could issue a final warning or refer the matter to the disciplinary board.
In Mallia’s case the company sought to justify the dismissal by claiming that his attitude was “wrong and unacceptable,” but
failed to support that claim, simply citing sick leave abuse and the worker’s disciplinary record.
In light of all evidence, the tribunal concluded that Mallia had indeed abused his sick leave but the dismissal itself was unjust since it was not proved that he was doing part-time work.
Nor was his “wrong and unacceptable” attitude proven.
His abuse of sick leave did not justify his dismissal which was deemed “disproportionate.”
However, since reinstatement was not a “wise” option, the tribunal ordered the company to pay its former employee €10,000 by way of compensation.
Lawyer Edward Gatt assisted the worker.