Industrial Tribunal Decision – Maria Concetta Debono vs Foster Clark Products Limited – Injury Leave – Unfair Dismissal.

On the 4th June 2013 the Industrial Tribunal, following a claim for unfair dismissal filed by Mrs Maria Concetta Debono, awarded a decision in her favour and ordered her re-instatement with Foster Clark Products Limited and the payment of wages for the duration of her unemployment.

In its decision the Industrial Tribunal examined the provisions of Article 36 (15) and (16) of the Employment and Industrial Relations Act – Chapter 452 of the Laws of Malta (“EIRA”).

Facts of the Case

Mrs Debono was employed on an indefinite contract with Foster Clark Products Limited as an operator and had been working there for around thirty years.

On 4th February 2010 she suffered an injury at her place of work, wherein she slipped in water on the floor which had just been washed. Further to the injury she was ordered to go home and not attend work until she had recovered.

On 3rd February 2011 Mrs Debono returned to work following an order by the Injury Board of the Social Security Division, confirming that she was fit enough to do so.  After a few hours from her to return to work, the Director of Human Resources queried her presence at work and asked her to leave the premises.

On the 8th February 2011 the Company sent her a letter informing her that her employment was terminated with effect from the said date on the grounds that she was not fit enough to return to work.

Mrs Debono proceeded to file a claim with the Industrial Tribunal requesting it to declare that her termination of employment with the Company and subsequent dismissal was unfair.

In its defence the Company stated inter alia that more than a year had passed from the date of the accident on 4th February 2010 and the date of termination of her employment and therefore her dismissal was effected in terms of Article 36 (15) of the EIRA which states that: “A contract of service shall not, except with the consent of the employee, be terminated by the employer during any period of incapacity for work of the employee caused by personal injury by accident arising out of and in the course of employment. Provided that this provision shall not apply beyond the first twelve calendar months of incapacity.”

The Company went on to argue that it followed Article 20 of the Collective Agreement which states that:  “In the event of injury on duty, absence from work will be permitted up to one year on full pay. In case when the company exerts its right to send its own medical Doctor to visit the employee, the Company will advise the employee accordingly in order that the employee would be found at home or at an address, previously advised to the Company, where the employee would be visited. If an injury is due to negligence on the part of the employee no wages will be paid by the Company for any absence necessitated by the injury.”

Moreover the Company claimed that according to Article 36(16) of the EIRA, Mrs Debono’s request for re-instatement had to be made in writing within seven days of the cessation of the incapacity for work and not return to work without prior notification.

The Company requested the Tribunal to claim that Mrs Debono’s dismissal was for a just and sufficient cause.

Considerations by the Industrial Tribunal

Prior to giving its decision the Tribunal considered the following facts:

1. Mrs Debono had been in employment with the Company for around thirty years and was injured at her place of work.
2. Mrs Debono received no disciplinary warnings during her period of employment.
3. The Company’s remark that Mrs Debono returned to work one day prior to the expiration of her injury leave period was irrelevant since she returned to work upon receiving authorisation from the Injury Board of the Social Security Division.
4. The doctors of Mrs Debono and the Company, issued medical certificates dated 28th January and 31st January respectively. The first certificate indicated that she was fit to return to work within two weeks and fit to lift heavy objects within two/three weeks, while the second certificate indicated a further recovery period of four weeks before she was fit to return to work.
5. The Injury Board of the Social Security Division confirmed, in its certificate dated 1st February 2011, that Mrs Debono was fit to return to work on the 31st January 2011.
6. 6. In spite of the certificates of the other two doctors, Mrs Debono followed the instructions of the Injury Board of the Social Security Division and returned to work on the 3rd February 2011 and worked in a normal manner under no special conditions.
7. The Tribunal considered the provisions of Article 36(16) wherein it is stipulated that: “On the cessation of the incapacity for work the employer shall, within twenty-one days from an application made by the employee, re-instate the employee in his former employment or, if the injury or disease has caused a disablement rendering the employee unfit for the former employment, in other suitable employment. Provided that the application for re-instatement by the employee shall be made in writing within seven days of the cessation of the incapacity for work”.
8. Mrs Debono worked for a number of hours before she caught the attention of the Director of Human Resources and even though she informed him that she was ordered to return to work by the Injury Board of the Social Security Division, he nonetheless requested that she leave the premises.
9. The Company, while confirming that it was not in possession of the certificate from the Injury Board of the Social Security Division, failed to verify the veracity of the order made by the said Board and if it had done so it would have been in a better position to decide upon Mrs Debono’s dismissal or otherwise.
10. Notwithstanding the provisions of Article 36(16) in terms of which an employee is required to notify his/her employer of his/her re-instatement within seven days of the cessation of the incapacity for work, the fact that Mrs Debono actually worked for a number of hours before being approached by the Director of Human Resources represents a tacit acceptance by the Company of her return to work.
11. The Company failed to observe its obligations under Article 36(16) in terms of which it had to offer Mrs Debono other suitable employment if the injury or disease caused a disablement rendering her unfit for the former employment, particularly when it was dealing with an employee who had been servicing the Company for thirty years.

Decision

In view of the above considerations the Industrial Tribunal decided that the termination of Mrs Debono’s employment was unfair and without just cause and ordered that she be re-instated within fifteen days from the date of its decision and ordered the Company to pay her the basic wage for the duration of the period of her employment.

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