Dismissal for a good and sufficient cause

Dismissing an Employee for a "good and sufficient cause"

We often hear of cases of employees being dismissed from a hotel or other place of work. The question we try to answer succinctly in this feature is: What justifies the dismissal of an employee? The Conditions of Employment Regulations Act (enacted in 1952) states that an employer may dismiss an employee, and the employee may abandon service on his part if there is a “good and sufficient cause” (Section 34(14)).

The Maltese legislator, not unlike his British counterpart, has shunned from providing a clear definition of the phrase "good and sufficient cause", allowing it to be construed by the competent authority in each individual case. Effectively this means that the employer or the employee at the time of terminating a contract need not make reference to any clause or list determining what can be considered a "good and sufficient cause" (although such a list may well exist in a collective agreement). The legislator merely provides five circumstances which the employer may not set up as a good and sufficient cause. (See below) Any other case would be determined on its own merits. The classical example is that of the prohibition of smoking. An employee who breaches the prohibition in a public area would have to be treated differently from an employee who lights up in an area where smoking may well cause an explosion!

If one party feels that a contract has been terminated for a cause which cannot be considered as "good and sufficient", that party may contest that decision in front of the Industrial Tribunal (and in the Civil Court in the case of a definite contract of employment).

The Industrial Tribunal, as can be demonstrated through case law, decides each case on its own merits. In general the Tribunal is reluctant to accept the outright dismissal of an employee unless in fairly grave circumstances, encouraging instead far less drastic measures such as demotion or reduction of benefits (W. and P. Hotel, 26th March 1982, Dec. No. 118, Vol 53)

Dismissal must not be seen as an opportunity to demonstrate the employer's "power" over his employees or as a means to counter insubordination (M.B. and S.J.I. Clothing Industry Co Ltd, 1st October 1986, Dec. no. 286, Vol 64)

Nonetheless, there are instances where the Tribunal will, almost invariably, admit dismissal for a "just and sufficient cause". Whilst absence from work in itself is not a "good and sufficient cause", such absence without a justified cause may well lead to justified dismissal. (J.B. and Alfred Gera & Sons Ltd, Dec. no. 220)

It seems clear from the Tribunal's decisions, that the Tribunal does not hesitate to consider theft or attempted theft as a just cause for the termination of a contract of service. Yet, even such a dismissal must be carefully weighed to consider the circumstances which may arise as a result of such dismissal (D. and S.F.C. Ltd., 25th June 1984, Dec. No. 170, Vol 55) The Tribunal seems to be suggesting here the requirement of a social conscience on the part of the employer.

Whilst I have found copious cases in which the employee has sought redress against a decision of the employer to terminate employment, I have come across no instances where the employer seeks to challenge the employee's own termination of a contract. As a matter of fact, with regard to indefinite contracts of employment the employee need not provide any cause for the termination of employment provided he/she gives notice. As the use of definite contracts continues to increase we will undoubtedly be witnessing case law where the specialist nature of a definite contract of employment may well justify the employer's reluctance to accept abandonment for a cause not considered to be "good and sufficient".

Regardless of what may be termed "a good and sufficient cause" the Tribunal has encouraged a responsible and equitable conduct from both the employers and the employee. Whatever the reason for such an abrupt termination, the Tribunal is firmly advocating that rash behaviour on any part will not confer a good and sufficient cause and that the parties should be allowed to retract from a decision based on impulse rather than reason.

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Section 35(14)

An employer may not set up as a good and sufficient cause:

(a) that the employee at the time of the dismissal was a member of a trade union; or

(b) except in the case of a private domestic employee, that the employee no longer enjoys the employer’s confidence; or

(d) that a female employee is pregnant with child; or

(e) that the employee is suspended from attending to his work by virtue of an order made in pursuance of the provisions of section 13 of the Prevention of Disease Ordinance.