Court of Appeal Judgement– last in first out

The Tribunal had delved into Article 36 of the Employment and Industrial Relations Act (Chapter 452 of the Laws of Malta) listed factors which it considered in determining whether there was a genuine redundancy.

The Tribunal acknowledged that the law does not provide a definition of redundancy, and so, referred to guidance in case law, including Alessandra Theuma vs. Alfred Mangion (AIC 23 May 2008). The UK case established the following guidelines:

1. Was the employee dismissed?
2. If so, had the requirements of the business for the employees to carry out the work of a particular kind ceased or diminished (or were expected to do so)?
3. If so, was the dismissal caused wholly or partly by that state of affairs?

The Tribunal also referred to the case Vanessa Fenech vs. SL Shipping Management Company Limited decided on 31 October 2016, where the Court of Appeal, once again referred to UK law which stated that for there to be redundancy, there must be an abolition of the post.

From the evidence presented in this case, or rather, the lack of evidence presented in this case, the Tribunal is not convinced that this was the case. In light of the evidence presented, this Tribunal concluded that the employee’s dismissal occurred at a time when there was an issue between two employees and the company considered their behaviour unacceptable. Rather than taking disciplinary action against both of them, the employer was seen to have taken an easier route and dismissed on the basis of a false redundancy.