Can Covid-19 be used as Justification for Dismissal?


In this Article

This article delves into a recent local Tribunal case in Malta in respect of unlawful dismissal from an employer, whilst also giving some background on the Covid-19 pandemic and its consequences for employees. Consequently, readers are also invited to ask questions regarding any unfortunate consequences to their employment and seek help and possibly legal advice on the matter.

The Covid-19 Pandemic and Dismissal

Let’s face it, the Covid-19 pandemic has turned these past two years into a dreadful and challenging saga. Professionally speaking, employers and employees have had to deal with major concessions and let-downs; some employees have had to work harder, with less pay, or lost their job altogether, whilst employers lost valuable people and incurred major losses.

A way to mitigate losses for employers is to reduce expenses with regard to employees. This is a general rule that occurs within or without a pandemic context. This may result in a salary cutback and/or a reduction in the employment personnel; meaning a redundancy.

At this point, there is nothing illegal or unjust in a company’s actions. However, if such a redundancy is done in a discriminatory manner or if a person was given the position instead of the same person being made redundant, the company may possibly be in breach of the Employment and Industrial Relations Act. In turn, this would provide the person made redundant with grounds for a possible claim before the Industrial Tribunal.

What Does the Law of Malta Say?

Employment and Industrial Relations Act

Chapter 452 of the Laws of Malta, entitled the Employment and Industrial Relations Act is the primary basis of employment law in Malta. It defines unfair dismissal as being, amongst others;

“[…] the termination by the employer in respect of that worker of a contract of employment for an indefinite time (other than probationary employment as defined in this Act) being a termination which is not made solely on the grounds of redundancy or for a good and sufficient cause”.

In simple terms, you would be unfairly dismissed if you were dismissed because your role was no longer needed (redundant). There would need to be a very good reason for your dismissal, “sufficient cause”, and this is determined by the Courts on a case-by-case basis.

Recent Dismissal Case Example

On the 16th of March 2022, a claim was decided before the Industrial Tribunal in the names of Miriam Garcia Medina vs Plan 17 Limited. The applicant was dismissed from her employment as a waitress at a restaurant on the 2nd of August 2020, during the first year of the pandemic.

Both the Assistant Operations Manager as well as the ex-General Manager argued in favour of the applicant and said that even though they had heard minor complaints about her, such complaints should not have resulted in her dismissal. According to the defendant, the principal reason for dismissal was due to the fact that the applicant had travelled to Rome without informing the management beforehand and without obtaining its permission to do so. When questioned about this dismissal, the Director the defendant stated that the reason was;

“because it was totally subordination (sic) and it prejudiced the livelihood of her team members, it prejudiced the business, the Company, and it was not acceptable at all this course of action from their end. I mean, I have no idea why they went for two or three days to Rome, it’s not in my interest, but they did not inform none of the Management about it”

Let’s break this down. On the one hand, it is true that the restaurant had to close down temporarily and suffered a loss as a result of the applicant having tested positive for Covid-19 after returning to Malta. On the other hand, the Tribunal also noted that at the time there were no regulations in place prohibiting people from travelling. Moreover, the Tribunal argued that employees do not have a duty to inform their employer of their whereabouts whilst making use of their allocated annual leave. Furthermore, employers have no right to request such information from their employees.

The end result? The reasons behind the dismissal and the logic behind them were seen as frivolous by the Tribunal, which ruled in favour of the applicant, awarding her €9,000 in damages.

How We Can Help

Laws are in place so that even during hard times such as these, employees are guaranteed certain rights. It is very important to note the employee’s right to keep their job unless gross misconduct occurred from their part.

Have you been fired from your job during the pandemic without a justified reason? Are you hesitant about requesting a valid reason for your dismissal from your employer? Do you know what rights you have in this matter? We can not only help you answer these questions, but also advise you on the legal steps that are within your right to take. Michael Kyprianou Advocates and Legal Consultants have extensive knowledge and experience in these areas of the law, so please feel free to contact us.

The content of this article is valid as at the date of its first publication. It is intended to provide a general guide to the subject matter and does not constitute legal advice. We recommend that you seek professional advice on your specific matter before acting on any information provided. For further information or advice, please contact infomalta@kyprianou.com or telephone +356 2016 1010.