Malta News

Tribunal Proceedings conducted in parallel with Criminal Proceedings

Industrial Tribunal Decision number 2568, decided on the 8th of January 2019

Priscilla Falzon vs Maltapost PLC

An interesting case which deals with tribunal proceedings when conducted in parallel with criminal proceedings.

 

Background

A long-standing employee had her main duties at Maltapost’s sorting station, and outdoors. While executing her duties, the employee experienced a sharp knee pain resulting in the postwoman stopping mid-route and being taken to a doctor, who confirmed that she required two full days of rest – evidenced in a medical certificate prepared by the employee’s doctor. The employee stated that once abandoning her route, she called the office to inform her superior and to advise that some letters were still undistributed, however no one answered the phone.

The employee recounted that on the day of her return (after sick leave) she advised her direct superior that she intended to hand in her medical certificate, however, her direct superior, who was attending to other work, advised her to wait. On this same day, another incident occurred, which incident led her to being hospitalized, and to take up injury leave. It is worth remarking that in view of all this, the medical certificate was not handed in on that day (the day of her return to work).

After the above incidents, Ms Falzon’s colleagues and direct superiors noted that there were undistributed letters in Ms Falzon’s tray (dated back from her first incident). This flagged a concern in view of the commitment that Maltapost has to a timely delivery, which commitment is then passed on to the employees. The Code of Behaviour of the Collective Agreement states that in the event that a postman becomes unable to distribute letters and to respect the timeframe established for delivery periods, the postman in question shall inform his/her direct superiors through a call/SMS. Given that Ms Falzon did not get through to her superiors on the day of the initial incident, upon her return from injury leave, the employee was brought forward for disciplinary hearings, which resulted in the dismissal on grounds of breach of the Code of Behaviour of the Collective Agreement.

Criminal action was also instituted in line with the Postal Services Act, Chapter 254 of the laws of Malta, which criminal action did not find Ms Falzon guilty.

 

The Tribunal’s Decision

Given that a breach of conduct within the postal services gives rise to criminal action, the Employer should have commenced disciplinary hearings only after the conclusion of the criminal proceedings in court.

The Tribunal went on to quote Norman Selwyn in relation to an investigation relating to an employee’s conduct. The salient points being the following:

  • It is important to conduct a fair investigation and test the evidence of an accuser where there could be serious consequences to the
  • An employer should also investigate allegations of dishonesty involving breach of trust with care.
  • It is unreasonable that the employer does not look into the evidence which might have shown that the employee was not dishonest. There is no particular form of procedure to be adopted, as long as the employee is given a fair hearing.
  • If the evidence produced is sufficiently indicative of guilt (in the absence of any explanation) the employer is entitled to take some action. If, however, there are doubts, fairness may require the employer to wait until the criminal proceedings have been concluded.

The Industrial Tribunal concluded that it opines that the employee’s actions were not malicious, and with no intent of deceit towards the employer, but merely a result of the circumstances that the employee found herself in at that particular moment.

 

About the Author

The article has been authored by Dr Maria Tabone, Advocate at CSB Legal, who specialises in Employment Law and Company Law.