Unfair Dismissal?

Recently a case was brought before the Industrial Tribunal by an aggrieved employee who had his employment terminated after being in employment for six years pursuant to an indefinite contract with Maltco Lotteries Limited.

The employee alleged that his employment was not terminated in accordance with the law but rather he was unfairly dismissed, and therefore, the employee filed a case before the Industrial Tribunal for unfair dismissal.

The employee had started to work with the defendant company in 2004, and he was subsequently asked to file an application in order for him to be approved by the Lotteries and Gaming Authority (LGA – now the Malta Gaming Authority – MGA). The applicant had handed in the mentioned application whereby he disclosed that he had a criminal record. The applicant was informed by the defendant company that if the LGA would have found a problem with this then they would have advised the applicant.

The applicant kept on working for the defendant company as he was under the impression that the above-mentioned application had been approved. However, eight years later he was informed by the defendant company that he had to fill in a new application form to be approved by the LGA.

The applicant was informed that until the LGA approves his application he had to go on leave indefinitely. A few months later, he was informed that the LGA did not approve his application.

The defendant company defended its position by stating that in 2012 it was given a new license in order to operate the national lottery, whereby a condition was imposed on the company that in order for an employee to work with the defendant company, the employees had to pass a fit and proper test approved by the LGA. The applicant’s application was not approved due to the fact that he had a previous criminal record.

The defendant company stated that upon having received news that the applicant’s application was not approved, it did not terminate his employment abruptly but rather the company informed him about the situation and explained that he could not continue to be employed due to the new condition which was imposed on the company.

Pursuant to Article 34(b) of the Lotteries and Other Games Act, the defendant company risked having its license revoked or suspended if it allowed the applicant to continue working there.  The LGA’s decision was always a final one and not a provisional decision, and therefore, in this regard the defendant company had no choice but to terminate the applicant’s employment.

The defendant company quoted a case handed down by the Industrial Tribunal in the names ‘Clement Azzopardi v Farmers’ Central Co-operative Society Limited’, whereby in this case the Tribunal held that when in order for a public entity to perform its duties it must revoke an employee’s license then the termination of the contract of employment will be considered to be correct and just.

Finally, the Tribunal held that when the applicant was first employed, the fit and proper test was only necessary to be carried out by management, and therefore the defendant company employed the applicant. In 2012 the defendant company was given another licence whereby one of the obligations was that each employee of the company had to pass a fit and proper test in order to work for said company. The applicant failed the mentioned test.

The Tribunal took into account the efforts carried out by the defendant company with the LGA in order for the company to keep the applicant in employment, however the LGA’s decision was final.

In light of the above, the Tribunal held that the defendant company was correct and right in terminating the applicant’s employment.  Hence, the termination of employment was just and fair.

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