This short article attempts to deal with the most basic issues that every employer should know. These issues and more, but with specific reference to engagement and dismissals, will be discussed during the MIA half-day seminar of the 5th April 2016, entitled EMPLOYMENT ISSUES – ENGAGEMENT & DISMISSAL. The seminar will discuss the above mentioned issues and more. It’s all about participating in this learning curve. The more knowledgeable one is, the less likely s/he is to err.
In a recent decision, (Daniel Scicluna vs Inspirations Limited – 11th December 2015), the Industrial Tribunal decided that plaintiff was right in claiming unjust dismissal, and decided that the employee should be re-instated with effect from date of termination, be paid all his salaries and bonuses etc. in one lump sum. Although the employee still had to face disciplinary procedures to answer for the charges which had led to his dismissal two years earlier, since the dismissal was now declared to have been unlawful and wrongful.
The decision is subject to appeal, so the merits of the case will not be discussed, but suffice is to point out at this stage, that as things stand, the employer’s cost will run into thousands of Euros. This cost will comprise the payment of around two years’ salary “gratis” to the employee, legal costs, disciplinary proceedings which have to be initiated and possible further litigation following such proceedings together with other ancillary costs/liabilities. Besides, the employer will certainly be facing issues related to the logistics behind the effects of this decision. One doubts whether the evidence which the company needs in order to re-commence the whole process afresh before a disciplinary board is still available. Furthermore, the employer will face issues relating to the employment of other staff instead of the dismissed employee. Other ancillary issues will arise such as issues of trust and others.
It is becoming increasingly difficult to give advice on employment issues due to changing attitudes and trends of the Industrial Tribunal as determined in its awards and decisions. Yet, certain fundamental matters are still applicable and it is vital that every employer is aware of them. Certain basic practices should be elementary and central to every entity. They should be implemented so as to avoid similar awkward situations which could prove to be very costly.
Employees are becoming increasingly aware of their rights and obligations. This is positive and should be encouraged. However, employers should do likewise and become more knowledgeable of their rights and obligations in the ambit of employment relationships. This also means that employers and should engage competent HR managers and provide for continued education in this field of law and management. It is vital that they adopt the right framework of employment relationships.
An employment relationship does not start from the date of commencement of employment. It starts beforehand, potentially with the publication of an advert for situations vacant on local papers, social media etc. There are certain rules which have to be adhered to in order to avoid discriminatory behaviour, possibly leading to potential liabilities.
An employer should make the right choices. Employers should determine precisely what type of employee they need, the job such an employee will be entrusted with and whether the interviewing board knows of all these issues so as to make the right choices throughout the selection process. If and when necessary, professional people should conduct such interviews, particularly when recruiting managerial and technical personnel.
Equally important is the employment agreement drawn up by the parties once the selection process is concluded. An employer should prepare the employment agreement prepared beforehand, including a clear job description, but should always leave room for discussion and potential changes to accommodate any specific requests by the new employee. The probationary period is of fundamental importance to any employer. There are a few basic rules which one must know. The probationary period is generally of six months unless the parties agree to a lesser period (a longer period of probation is not permissible). On the other hand, in the case of managerial, executive, administrative or technical employees, unless otherwise specified in a collective agreement or contract of service, the probationary period is of one year. This period is of essential importance as, in the case of unsatisfactory performance by an employee, it gives the right to an employer to terminate the employment agreement without giving any reason and without the need to justify such termination. Hence, the probationary period is a trial period and a time when an employer should continuously assess his/ her new employee.
Another important aspect of the employment relationship is the termination thereof. Our law speaks of unjust and unfair dismissal as being a termination which is not made solely on the grounds of redundancy or for a good and sufficient cause. The interpretation of this definition is widespread and should definitely be applied on a case by case basis. Our law fails to speak specifically about “wrongful dismissals”, but within the definition of “unfair dismissal” our Tribunals have allowed the introduction of this concept as primarily developed in the UK. Needless to say, an employer should also be aware of the consequences of collective or non-collective redundancies and issues relating to claims put forward by employees in respect of constructive dismissals. Misconceptions about “warnings” should be wiped out and employers should have clear minds on how to give a warning, what makes an effective warning, when a warning is valid and whether it should be stated verbally or in writing, be administered and recorded.
To this effect, an employer should have proper employment policies in place. Policies dealing with disciplinary procedures, sexual harassment and other forms of discrimination, teleworking and other particular concessions, policies relative to the use of social media and others. Such policies tend to avoid the inconvenience of what may seem to be trivial issues but which can be problematic in nature, particularly when dealing with employees collectively.
Claims before the Industrial Tribunals against employers vary, these include claims of discrimination, issues of unjust dismissal cases of collective bargaining and interpretation of agreements. Certain issues may also lead to criminal prosecution against employers, such as in cases of sexual harassment or lack of payment of wages, bonuses or leave entitlements.
Employment issues that may be encountered by employers are clearly varied. A recent case attesting this fact is the decision of the Court of Appeal decreed on the 30th September 2015 in the case Roberta Spiteri vs ST Microelectronics. In this case, the Court of Appeal essentially declared that giving a wage increase to an employee as a result of positive appraisals was in breach of the law relative to non-discrimination in pay, better and more commonly known as “the equal pay for work of equal value” principle. The Court remarked that, if over the years, a pool of similar employees were paid different salary packages as a result of different results obtained in their performance appraisals, then that would be tantamount to discriminatory treatment since they are being given to employees in the same category of workers. The Court concluded that, should the employer wish to positively compensate the employee, than a one-time payment bonus would be more appropriate to avoid discriminatory treatment.
The issues are never ending. And this is reasonably so. Employment is all about human beings interacting between themselves performing their daily duties at the place of work in return for salaries. Up until ten years ago no one spoke of the phenomenon whereby employers face a high level of absenteeism at the place of work on a Monday morning. This is a modern problem at the place of work. The law might not provide the solutions. But employers will find solutions themselves, one hopes, with least inconvenience, liability, cost, and above all, illicit actions.