The term “wages” as defined in Article 2 of the Employment and Industrial Relations Act (Chapter 452 of the Laws of Malta), excludes at the outset any bonuses or allowances related to performance or production, payable by the employer in favour of the employee. The definition of this term however includes remuneration or earnings and any statutory bonuses payable to the employee as may be established by the Minister of Finance or as the Government may announce in the General Estimates from time to time, i.e., what we generally call ‘Government Bonuses’.

The Industrial Tribunal was established by Article 73 of the Act, and was granted exclusive jurisdiction to decide upon all cases of alleged unfair dismissal, all claims for sums which may be due to an employee or to an employer following the termination of a contract of service before the expiration of the specified term (where the contract of service is for a fixed term), and all cases falling within the Tribunal’s jurisdiction under Title I of the Act or any regulations therein prescribed.

In April 2022, the Industrial Tribunal was faced with an application filed by an irritated employee demanding payment of a performance bonus from his employer, the Malta Financial Services Authority, which the employee claims was part of his salary and therefore should have been paid. The employee also requested the Tribunal to liquidate an additional amount payable in compensation for the Authority’s breach of the employment conditions which had been previously agreed upon. The Authority rebutted this claim with a preliminary plea challenging the Tribunal’s lack of competence to consider and decide upon the employee’s claim, by making reference to local jurisprudence and Article 75 of the Act regarding the exclusive jurisdiction of the Tribunal, as cited in the previous paragraph. By virtue of this plea, the Authority claimed that it was the Civil Court that had the competence to consider and decide on the application put forward by the employee regarding payment of the performance bonus, not the Industrial Tribunal.

The Industrial Tribunal consequently resorted to a number of judgments on the subject matter regarding an employer’s breach of the employment agreement or employment conditions, namely the cause delivered by the Industrial Tribunal on 29 November 2022 in the names of ‘Ioannis Katakis v. Pinnacle Gaming Group Limited’, where it was decided that an employee seeking damages for a breach of employment conditions and/or his contract of employment must lodge his claim before the Civil Courts, not the Industrial Tribunal. The Tribunal stated the following regarding the subject in issue:

It-Tribunal Industrijali jiddeciedi, li din il-materja mhix kompitenza ta’ dan it-Tribunal Industrijali li jiddeciedi fuq dawn l-aspetti ta’ ksur ta’ kundizzjonijiet tax-xoghol u kuntratti bejn il-partijiet ghax il-kompitenza ta’ dan it-Tribunal Industrijali hija li jiddeciedi jekk it-terminazzjoni ta’ l-impjieg kienitx ingusta u jekk jirrizulta li tkun ingusta jghati rimedju. Ghaldaqstant, rigward ksur tal-kundizzjonijiet tax-xoghol u kuntratti ir-rikorrenti ghandhu jirreferihom lill Qorti kompitenti li tiddeciedi fuq din il-materja.

The provisions of the Employment and Industrial Relations Act made sure to define the term “conditions of employment”, which term includes wages (which term has been defined above), the period of employment, the hours of work and leave and benefits arising from a contract of service, terms of engagement, terms of work participation, the manner of termination of any employment agreement and the mode of settling any differences which may arise between the parties to the agreement.

Notwithstanding the above, the Employment and Industrial Relations Act caters for those employees that fall victim to a breach of employment conditions by the employer where this concerns discrimination, breaches of the principle of work of equal value, victimisation or harassment. Article 30 of the Act allows said employees to lodge a complaint before the Industrial Tribunal, that shall hear the complaint and carry out any investigations as it deems fit. If the Industrial Tribunal is satisfied that the complaint is justified, it may take such measures as it may deem fit including the cancellation of any contract of service or of any clause in a contract or collective agreement which is discriminatory and shall order the payment of compensation for loss and damage sustained by the aggrieved party due to the breach.

In arriving at its decision, the Industrial Tribunal also referred to the judgment delivered by the First Hall of the Civil Court on 30 September 2010, in which the latter had gone into the merits of what the legislator intended when drafting the provisions of the Act, claiming that the parameters of the Tribunal’s competence must not be interpreted widely and freely. The Civil Court First Hall therefore concluded that:

Għalhekk, salv fil-każijiet indikati fil-liġi stess, id-disposizzjonijiet tal-Kap. 452 ma jistgħux jiġu nterpretati b’mod wiesgħa tant li jiġu estiżi sabiex jinkludu setgħat li l-leġislatur ma ndikax fil-liġi għax ma riedx li dawn jidħlu fil-parametri tas-setgħat tat-Tribunal. Fi kliem ieħor, il-ġurisdizzjoni tat-Tribunal Industrijali u s-setgħat li għandu huma dawk espressament indikati fil-liġi stess li stabbiliet il-parametri tal-operat tiegħu.

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Standing up to sexual harassment at the work place, and moreover reporting it might be one of the hardest things for an employee to do at the workplace primarily because the unwelcomed behaviour comes from a colleague in a professional sphere.

Whether coming from a superior or not, attempting to shrug it off and dismissing it as a harmless flirtatious act might seem like the easiest way to handle it, especially at the office, often in an effort to avoid an uncomfortable conversation with a superior or Human Resources.

Although prohibited under Maltese law, uncertainty about what actually constitutes sexual harassment, who one should report it to, not wanting to seem like a drama queen, and worrying about all the repercussions which circle reporting sexual harassment are among the reasons which employees easily find when seeking to justify the reason for failing to report the harassment they face occasionally, and possibly daily at their place of work.

So, what is sexual harassment ?

This form of harassment may take different forms; being physical acts, words or gestures, and also displays of sexual material. The essential element which constitutes sexual harassment is that the sexual conduct in question is unwelcomed by the victim.

It is not about a close friendship with a colleague, but the unnecessary and unwelcomed familiarity with a colleague, the suggestive jokes or comments, as well as unwelcome physical contact such as touching, hugging or kissing.  It is indeed qualified as sexual harassment, unless it is sexual behaviour between employees in romantic, sexual or even mutual flirtatious relationships.

It is immaterial that the behaviour may not offend other colleagues or that it has been accepted at the work environment in the past. Indeed an employee might even feel sexually harassed following a romantic relationship break-down, where one who continues to manifest acts of a sexual nature directed at an ex-partner at the office, and such if it is unwelcome by the person against who it is directed, the victim.

A quick google search of the term ‘sexual harassment’ depicts countless images of a women sitting at a desk and a male colleague rubbing her shoulders or making physical contact with her in any way. These images are what have easily described the term sexual harassment in images, however sexual harassment is way be more than that. Practical examples include:

• subjecting the victim to an act of physical intimacy,
• requesting sexual favours;
• unwanted invitations to go out on dates or requests for sexual interaction;
• intrusive questions about an employee’s private life or body;
• insults or taunts based on one’s sex;
• sexually explicit messages;
• humiliating, offensive, and intimidating acts or remarks;
• subjecting the victim to any act of with sexual connotations, images and/or behaviour which would also be an offence under the criminal law, such as physical sexual assault, indecent exposure, and obscene or pornographic communications.

One may think that his/her conduct is welcome, or at least perceived as flattering and inoffensive towards the victim. In turn, the victim might not say anything back, and at times the victim might end up even going along with the unwanted behaviour to avoid awkward confrontation or exclusion at work, with the office ending up being a hostile or even toxic place one frequents every day.

Employers have a responsibility towards their employees to ensure that sexual behaviour between employees, even if reciprocated does not create an unpleasant workplace for other employees.

At times met by a shrug from the employer, especially within small to medium sized businesses and firms run without a human resources team, and all in an effort to keep the feeling of a peaceful, drama-free working environment, the office might end up being regarded as a sexually hostile space for the staff members, both the victims of sexual harassment, as well as to those who find themselves sharing an office with colleagues  who reciprocate sexual behaviour towards one another.

The best preventive measure an employer may take to offer a safe working-environment, is the adoption of a sexual harassment policy, clearly underlining procedures which victims should follow in order to make complaints, as well as guidelines which enable the employer to handle such complaints.

It is as critical for the employer to make sure that the sexual harassment policy is clearly understood by all the employees and that no tolerance is allowed at poking fun at the policy.

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“Unfair dismissal” is defined by the Employment and Industrial Relations Act as the  dismissal  by  the  employer of employees, who are no longer within their probationary employment period, and, which dismissal is not made solely on the grounds of redundancy or which lacks good and sufficient cause.

Unfair dismissal further extends to dismissal of an employee which, though made on grounds of redundancy or for a good and sufficient cause, is discriminatory[1] or which is based on an act done by an employee in contemplation or furtherance of a trade dispute and in pursuance of a directive issued by a trade union.

A “good and sufficient cause” for dismissal in Malta is not strictly defined in the law, however  amongst those not considered to be good and sufficient causes for dismissal are maternity, paternity, parental, carers’ leave, time off from work on the grounds of force majeure, exercising the right to request flexible working arrangements (for parents and carers of children under the age of 8)[2] and contracting marriage, indeed such ‘reasons’ are considered to be discriminatory.

The competence of the Industrial Tribunal in such cases of dismissal extends to both those employees engaged on indefinite time contracts as well as those employees employed on a definite time contracts.[3]

In cases  of  unfair  dismissal,  if  there  is  no  specific request  for  reinstatement  or  re-engagement  or  the Tribunal  decides  not  to  make  an  order  for reinstatement  or  re-engagement  as  aforesaid,  the Tribunal shall make an award of compensation, to be paid by the employer to the dismissed employee (the complainant), in respect of the dismissal.

In determining the amount of such compensation,  the  Tribunal   takes   into consideration the real damages and losses incurred by the  worker  who  was unjustly dismissed,  as  well  as other circumstances, including the worker’s age and skills which may affect the employment potential of the said worker. Other facts the Industrial Tribunal tends to consider are the period that the complainant remained unemployed for following an unjust dismissal; the length of the employment relationship between the employee and employer; and any reduction in earnings on new employment.

The key to avoid litigation in employment disputes is communication. That said, communication is most productive prior to the dismissal of an employee and when held in an environment seeking to fruitfully resolve the issues in dispute, other than looking for an excuse for the termination of an employee’s contract or creating unrealistic deadlines for the employee to work on the highlighted issues, thus purposely setting the employee up to fail.

Where  it  is  alleged  that  a  worker  has  been  unfairly dismissed by an employer, or where there is an alleged breach of any obligation arising out of any matter falling within the jurisdiction of the Industrial Tribunal, the cause shall be referred to the Tribunal by means of a declaration stating the facts of the case, presented in the Registry of the Tribunal and shall, in all cases, be so presented by not later than four (4) months from the effective date of the alleged breach.

If the parties do end up in litigation, it is the employer who is to prove that the employee was dismissed on just grounds, and not the employee who is burdened with proving that there was no just cause for the dismissal.

[1] Discrimination includes discrimination made on the basis of marital status, pregnancy or potential pregnancy, sex, colour, disability, religious conviction, political opinion or membership in a trade union or in an employers’ association

[2] Article 14 of S.L. 452.125 of the laws of Malta introduced in August 2022

[3] ACT No. LVIII of 2020 of 11^th December 2020

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August 2022 welcomed the introduction of subsidiary legislation 452.125[1]; ‘The work-life balance for parents and carers regulations’ the scope of which was to transpose the relevant provisions of Directive (EU) 2019/1158.

Undoubtedly, this is a steady start towards achieving equality between parents of both genders with respect to employment opportunities and fair treatment.

Although much is yet desired by fathers in Malta, especially by fathers who have to fight for a minute of quality time with their children as they remain doomed by archaic Maltese law in custody and separation legal battles, this recent law introduced the concepts of paternity leave, carers’ leave and flexible working arrangements in Maltese labour law for both sexes who are workers, irrespective of the period of employment or service, marital or family status.

The so-called ‘second parent’

Initially, the tone of the new law is that parents are not equal, as article 4 of S.L 452.125 distinguishes between the first parent and ‘the second parent’, an equivalent to a father.  However, this specific article introduces the long-awaited introduction of the 10 working days of paid leave for ‘second parents’, on the occasion of the birth or adoption of their child; a great improvement from the previous single day, which fathers used to be entitled to on the occasion of the birth of their child.

‘Parental leave’ and Flexible working arrangements

Workers with children up to 8 years of age, and carers, now have the right to request flexible working arrangements for caring purposes. Such flexible working arrangements may be requested in the form of remote working, reduced hours, flexitime or other means, taking into account the needs of both employer and worker, however, these may be limited in duration.

The newly transposed law also provides workers with a right to request to return prematurely to the original working arrangements and pattern, before the end of the agreed period, where a change in circumstances is justified.

With regard to ‘parental leave’, the law makes reference to ‘the individual right of each parent’ for a period of 4 months until the child attains the age of 8, notably an even greater step to achieving equality between parents.

During the period of parental leave, or upon the granting of parental leave, the employee shall also have the right to apply for promotion opportunities within the work-place. At the end of the respective period of leave, workers ( of either sex) have the right to return to their original patterns and working arrangements or equivalent posts and similar conditions, which are no less favourable to them.  They shall also be entitled to any benefit accruing during their absence, which they would have been entitled to, had such leave not been taken.

Paid parental leave amounts to two months, which shall be paid at the same rate as established for the sickness benefit entitlement under the Social Security Act in the following manner:

(i) 50% of entitlement shall be paid where the child (or children) for whose parental leave was granted has/have not yet attained the age of 4 years.

(ii) 25% of entitlement shall be paid where the child (or children) for whose parental leave was granted is/are between 4 and 6 years old.

(iii) 25% of entitlement shall be paid where the child (or children) for whose parental leave was granted is/are between 6 and 8 years old.

The Introduction of Carers’ leave

Legal Notice 201 of 2022 further introduced the concept of carers’ leave, granting every worker 5 days of unpaid leave to attend to the needs of relatives or persons who live within the same household, suffering from illness and are in need of support and care.

Employer- employee disputes regarding entitlements covered by this regulation may be referred to the Director General of the Employment and Industrial Relations who will act as a mediator between the two.

[1] Subsidiary Legislation 452.178, Parental Leave Entitlement Regulations, has been repealed.

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Perhaps the most common measure adopted by governments worldwide over the past two years has been, quarantine.

As a result of such a forceful measure, millions of people at some point or another are forced to remain confined to their homes either due to a positive swab test result or due to their close contact with someone who tested positive for coronavirus.  This measure has left several consequent ripple effects especially on employers and employees.

With employees being restricted to their homes on a daily basis, the novel of “quarantine leave” was introduced.

According to Subsidiary Legislation 452.101, quarantine leave is “leave to be granted to the employee without loss of wages in such cases where the employee is legally obliged to abide by a quarantine order confining the employee to a certain area or to certain premises as determined by the Superintendent of Public Health under the Public Health Act or by any public authority under any other law.”

Therefore, quarantine leave is not available to those who out of their own will decide to self-isolate but is only available to those who have received a formal letter by the authorities ordering them to quarantine. Additionally, the novelty of this concept is also remarked due to the fact that quarantine leave is not meant to serve as a replacement to paid vacation leave or sick leave, but is a new form of leave entitlement altogether.

Interesting are the interplays between sick leave and quarantine leave. If an individual tests positive for Covid-19, then that particular individual is to be considered as sick – therefore being entitled to sick leave from his/her employer. A similar system applies to individuals who although having initially tested negative for Covid-19, would have tested positive during their period of quarantine. When the illness terminates, if the person is ordered to remain in quarantine, then the quarantine leave regime will apply. Conclusively, only people who test negative for Covid-19 and are ordered by the Superintendent of Public Health or other authorities to remain in quarantine are eligible to avail themselves of quarantine leave, whereas those who test positive for Covid-19 avail themself of their sick leave entitlement.

The remarkable feature of this definition lies in the fact that whilst an employee is availing himself of quarantine leave, that employee has his mind at rest that he will not suffer any deduction in his wage.

The Maltese legislator has created a scenario wherein a person who tests negative for Covid-19 but is nonetheless ordered to quarantine, is afforded full protection of his wages. Yet, opposingly a person who is ordered to quarantine for testing positive for Covid-19, is not entitled to the same sort of protection.

The entitlement to sick leave is regulated under Regulation 3 of Subsidiary Legislation 452.101 which caters for a stipulated period available to an employee as sick leave for which the employee is entitled to receive his full wages. Therefore, if one considers a scenario wherein an employee avails himself of his full sick leave entitlement, and subsequently contracts Covid-19, the employee may find himself in a position wherein he does not qualify for quarantine leave and would have to avail himself of further sick leave which may result in loss of wages.

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The beneficial impacts of modern technology do not come as a hard nut to crack for they are easily recognised and generally accepted by society. What is often bypassed however, is the question of the price paid by the effects of technological advancements and whether these are dwindling the boundary between family life and work life at the expense of our well-being. This statement finds its own special footing within the ambit of employment since employees are seemingly only a few clicks away from their employer irrespective of whether it is the weekend, whether they are on holiday or whether it is 10pm and way out of their working hours.

The nature of the world of work continues to evolve with the growing use of smartphones, tablets, and laptops by employees. With synced work mailboxes into personal smartphones, the growing use of instant messaging, and now also through the heightened use of video conferencing portals and interactive meetings, the employee is barely given time to switch off from his working environment.

This reality is what has sparked debates between European Union Member States concerning the infamous right to disconnect. Apart from the remarkability of this right in its’ own merits, one should not disregard the fact that this Recommendation was pushed for by a Maltese Member of the European Parliament. Following the adoption of a parliamentary resolution on the 21^st of January 2021, recommendations have been made to the European Commission with the prospect of issuing a directive which will see the right to disconnect serve as a foundational right to all citizens of the European Union. The wording of the resolution highlighted the problem of being constantly connected along with the high demands of the workplace together with the rising expectation that workers are reachable at any point in time can negatively impact employee’s rights, and their physical and mental health and well-being.

There is a difference between working time, during which an employee must be at the disposal of the employer, and contacting an employee outside working time, where an employee has no obligation at all to be at the employer’s disposal. It can be drawn that the main purpose behind the introduction of the right to disconnect is aimed to safeguard the employee’s health with special focus on protecting employees from the psychological risks of anxiety, depression, burnout, and technostress.

The situation is not the same in all Member States. Under the current legislation and the case-law of the Court of Justice of the European Union, employees are not required to be available to the employer on a 24/7 basis and without interruption whatsoever. Notwithstanding, the right to disconnect is still absent from Union law, and the situation amongst Member States varies widely.

As proposed, the right to disconnect enables employees to refrain from engaging in any sort of work-related tasks, activities, and electronic communication including phone calls and emails, at any time falling outside of their working time. This right shall also extend to rest periods, vacation leave, maternity, paternity or parental leave as well as public holidays. With the protection of the right to disconnect, the employee will need not fear that he will face adverse consequences for having failed to respond to an email or answer a phone call whilst outside working time. As a matter of fact, the proposed law seeks to underline this particular point – that employers should not expect, let alone require workers to be directly or indirectly available or reachable outside their working time. This restriction shall also extend to co-workers who should likewise refrain from contacting their colleagues outside the agreed working hours for work-related purposes.

It must be pointed out that this law is at present still in its recommendation stage to the European Commission and as a result has no force of law within Member States of the European Union. It is only once the prospected directive is conclusively adopted by the European institutions that it finds its applicability within the local context. That said, the crux shall ultimately rest in the hands of the Maltese legislator to transpose the wording of the directive into Maltese law. Nonetheless, the introduction of the right to disconnect is a hopeful step towards restoring the boundary between family life and work life and it is set to greatly influence the current functioning of most workplaces.

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As wonderful as the word ‘leave’ sounds, this is very important in the work and social life. The benefit of taking leave promotes good physical and mental health in the workplace and improves people’s work-life balance, which in turn boosts employees’ enthusiasm and productivity upon their return.

The Minimum Special Leave Entitlement Regulation lays down the minimum entitlement of sick leave, birth leave, bereavement leave, marriage leave, injury leave, and leave for jury services to whole-time employees. Recently, another form of leave entitlement was introduced by means of Legal Notice 62 of 2020 – the paid quarantine leave for all employees, payable by the employer.

What is an employee entitled for in terms of vacation leave?

With effect as from 1st January 2020, an employee working 40 hours per week is entitled to 216 hours of paid annual leave. This is calculated on a 40-hour working week, and an 8-hour working day. If the average normal hours (excluding overtime) calculated over a period of 17 weeks is below or exceeds 40 hours per week, the vacation leave entitlement in hours should be adjusted accordingly.

Interestingly, the employee has the possibility to take the leave in hours (rather than whole days) through mutual agreement with the employer. Nevertheless, if no agreement has been reached, the leave must be availed of as whole days.

Apart from vacation leave, what is the minimum special leave that an employee is entitled to?

In terms of article 4 of Legal Notice 62 of 2020, every employee is entitled for:

(a) one working day of bereavement leave;
(b) one working day of birth leave;
(c) two working days marriage leave;
(d) up to one year of injury leave;
(e) jury service leave for as long as necessary;
(f) quarantine leave for any period of quarantine as may be determined by the Superintendent of Public Health or by any other public authority

This being said, any collective agreement or private employment agreement can stipulate different annual leave rules so long as such agreements are more favourable to the employee.

What about sick leave?

The amount of sick leave varies substantially according to the relevant sector of industry. Where the sector is not covered by a Wages Council Wage Regulation Order, an employee is entitled to two working weeks of sick leave annually.

Additionally, the employer is only obliged to pay the amount of sick leave entitlement provided by law. If an employee remains sick after having exhausted all the sick leave entitlement, the employee will only continue to receive the sickness benefit from the Social Security to which the employee may be entitled.

What about quarantine leave?

After the Covid-19 pandemic, the Minimum Special Leave Entitlement was amended to introduce special paid quarantine leave to all employees. The employee is entitled to paid quarantine leave for any period of quarantine as may be determined by the Superintendent of Public Health. This type of leave is over and above any other leave and cannot be deducted from the employee’s annual leave or sick leave.

But how does the law define quarantine leave?

The law defines quarantine leave as,

“as leave to be granted to the employee without loss of wages in such cases where the employee is legally obliged to abide by a quarantine order confining the employee to a certain area or to certain premises as determined by the Superintendent of Public Health by any public authority under any other law.”.

Upon the return of the employee to work, the employer is entitled to request evidence from the employee ascertaining that the employee was obliged to abide by quarantine order.

But, who is legally obliged to abide by a quarantine order?

In terms of S.L. 465.13, any person arriving in Malta from any country other than those listed in sub-article (3) must submit himself to a fourteen (14) day period of quarantine immediately upon his arrival in Malta. At the time of writing, this list included Austria, Cyprus, Japan, Jordan, Romania, Portugal, Italy and Denmark. This order applies to persons who live in the same residence who is in mandatory quarantine.

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Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact Dr Graziella Cricchiola on graziella@azzopardilegal.eu.

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