Dam­ages fol­low­ing an un­jus­ti­fied ter­mi­na­tion of em­ploy­ment

In a re­cent case, the In­dus­trial Tri­bunal had to con­sider whether the dis­missal of an em­ployee who used to work from home and had re­fused to re­turn back to the of­fice con­sti­tuted an un­jus­ti­fied ter­mi­na­tion of em­ploy­ment.

The Malta Independent on Sunday - - DEBATE & ANALYSIS - Joseph Calleja

The facts of the case were as fol­lows: an em­ployee (now plain­tiff) who was em­ployed as a cre­ative web de­signer on a full-time ba­sis re­quested the com­pany em­ploy­ing him to per­mit him to start car­ry­ing out his du­ties from home. This re­quest was made af­ter a rec­om­men­da­tion by the em­ployee’s doc­tor as he suf­fered from a chronic heart con­di­tion and fol­low­ing the man­i­fes­ta­tion of cer­tain symp­toms re­lated to this con­di­tion.

The com­pany de­cided to ac­cede to this re­quest for a onemonth trial pe­riod and on con­di­tion that the em­ployee re­ported to the of­fice for a weekly meet­ing. It sub­se­quently ex­tended this trial pe­riod af­ter a month had elapsed. Af­ter some weeks, the com­pany in­formed the em­ployee that it re­quired him to re­turn to the of­fice to carry out his du­ties. He was of­fered the op­por­tu­nity of re­turn­ing back to the of­fice on a grad­ual ba­sis and the com­pany also in­formed him that it was ready to dis­cuss other so­lu­tions to fa­cil­i­tate his work. How­ever, the em­ployee said that the so­lu­tion would be for the sit­u­a­tion to re­main as it was, ie with him work­ing from home. The com­pany, in turn, in­formed him that it was ter­mi­nat­ing his em­ploy­ment.

In his tes­ti­mony, the com­pany’s Man­ag­ing Di­rec­tor said that, due to an in­crease in work and projects, they re­quired a graphic de­signer to be in the of­fice as part of the team and it was for this rea­son that they had dis­missed the plain­tiff. These facts were also confirmed by the Chief Mar­ket­ing Of­fi­cer, who fur­ther af­firmed that when one works from home the qual­ity of the work suf­fers and mat­ters tend to com­pli­cate them­selves. He also said that he used to ob­serve the plain­tiff be­ing dis­tressed and that the ar­range­ment to work from home had only been a tem­po­rary mea­sure.

He also men­tioned that, prior to the ter­mi­na­tion of his em­ploy­ment, and as a way of help­ing the plain­tiff, they of­fered him the pos­si­bil­ity of work­ing as a free­lancer. When ques­tioned about the qual­ity of the work pro­duced by the plain­tiff, the wit­ness said he was very sat­is­fied with his work.

The Con­sul­tant Car­di­ol­o­gist en­trusted with the care of the plain­tiff, also took the wit­ness stand. She ex­plained that her rec­om­men­da­tion that the plain­tiff work from home was mainly due to the fact that com­mut­ing to and from work was neg­a­tively af­fect­ing his health. She also pointed out that the com­pany had never ap­proached her in re­la­tion to the cer­tifi­cates she had re­leased to the em­ployee.

In his tes­ti­mony, the plain­tiff ex­plained that, on his en­gage­ment with the com­pany, he had dis­closed the con­di­tion from which he suf­fered to the com­pany when com­plet­ing the Med- ical In­surance Pol­icy doc­u­ments. The rea­son why he re­quested the com­pany to al­low him to work from home was to avoid com­mut­ing as this was leav­ing him ex­hausted due to the con­di­tion from which he suf­fered. He said that his col­leagues of­ten used to praise his work and that he al­ways car­ried out the du­ties he was as­signed.

The plain­tiff ex­plained that, fol­low­ing his dis­missal, he had un­der­gone ma­jor surgery, as a re­sult of which his health had im­proved sig­nif­i­cantly. He also said that at present he was, in fact, work­ing from an of­fice and that had he had his oper­a­tion while he was still em­ployed with the de­fen­dant com­pany, he would have re­turned to the of­fice.

In its fi­nal sub­mis­sions, the com­pany pointed out that, in view of the plain­tiff’s con­di­tion, it had un­der­taken to as­sist and ac­com­mo­date him. It also made ref­er­ence to the em­ploy­ment con­tract with the plain­tiff, which stip­u­lated that he had to work from premises in­di­cated by the com­pany. With re­gard to the med­i­cal opin­ion, the com­pany ob­served that this was merely a rec­om­men­da­tion and did not manda­to­rily state that the plain­tiff had to work from home.

The plain­tiff sub­mit­ted that the whole is­sue which the Tri­bunal had to de­ter­mine was whether there ex­isted any duty or obli­ga­tion on an em­ployer to make ad­just­ments in the sys­tem of work of em­ploy­ees as a re­sult of cer­tain per­sonal cir­cum­stances in which the said em­ploy­ees find them­selves, and if such an obli­ga­tion ex­isted, what are the pa­ram­e­ters. The Plain­tiff pro­ceeded to ar­gue that, although no em­ployer had a gen­eral duty to ac­com­mo­date the re­quests of em­ploy­ees, there ex­isted cer­tain in­stances con­tem­plated in law, specif­i­cally the Equal Op­por­tu­ni­ties (Per­sons with Dis­abil­ity) Act, Chap­ter 413 from home. Nev­er­the­less, if the em­ployer ac­ceded to such a re­quest the em­ployee con­cerned should be treated the same as the other em­ploy­ees work­ing in the of­fice. The Tri­bunal agreed with the sub­mis­sions made by the plain­tiff that the de­fen­dant com­pany had failed to pro­vide ev­i­dence that the em­ployee was fail­ing in his du­ties or that his work was not sat­is­fac­tory. Nei­ther did the com­pany pro­duce any ev­i­dence to sub­stan­ti­ate the up­com­ing ma­jor projects that were men­tioned.

The Tri­bunal ob­served that dis­missal of an em­ployee should be seen as a last re­sort and that an em­ployer should do its best to avoid it. On this note, the Tri­bunal held that the em­ployee was never given any for­mal warn­ing that he was fail­ing in his du­ties or that he was not work­ing the weekly hours he was ex­pected to work. It also ob­served that the con­di­tion from which the plain­tiff suf­fered qual­i­fied for the def­i­ni­tion of ‘dis­abil­ity’ as con­tem­plated at law. It held that em­ploy­ers had an obli­ga­tion to ad­dress the dis­ad­van­tages from which peo­ple with dis­abil­ity suf­fer. The Tri­bunal held that mak­ing ar­range­ments for a dis­abled em­ployee to work from home com­prised a mea­sure that sat­is­fied the ‘rea­son­able ac­com­mo­da­tion’ re­quire­ment pro­vided for at law. Fail­ure to im­ple­ment this on the part of the em­ployer was con­sid­ered as dis­crim­i­na­tion against em­ploy­ees on the grounds of dis­abil­ity.

For these rea­sons, the Tri­bunal deemed that this ter­mi­na­tion of em­ploy­ment by the de­fen­dant com­pany was un­just and dis­crim­i­na­tory. Fol­low­ing due con­sid­er­a­tion of all the facts of the case, it pro­ceeded to con­demn the com­pany to pay the em­ployee €20,000 as com­pen­sa­tion for the un­just dis­missal and €10,000 as com­pen­sa­tion for the dis­crim­i­na­tion from which he suf­fered.

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