MALTA Law and Practice Contributed by: Paul Gonzi, Rebecca Diacono and Mattea Pullicino, Fenech & Fenech Advocates
There is no specific procedure that an employer must follow when terminating for “good and sufficient cause”; however, the Industrial Tribunal generally emphasises that warnings ought to be given to an employee prior to dismissal, particularly if termination is based on issues of performance or conduct, and the employer must demonstrate that they engaged in a due process prior to dismissal. In such cases, the employer is not required to give the employee advance notice of termination and is also not required to pay the employee any wages relating to such notice period. With regards to termination of employment by way of redundancy, Maltese law requires employers to fol - low the last-in-first-out rule, in that the employer must terminate the employment of that person who was last engaged in the class of employment affected by such redundancy. In such cases, the employer must give prior notice of such termination, depending on the employee’s length of employment. Should the employee not wish to work the full notice period, the employee may require the employer to pay them a sum equal to one half of the wages due for the unex - pired period of notice. If the employer fails to give notice, the employee will be entitled to a payment in lieu thereof. Furthermore, should the post formerly occupied by the employee who was rendered redundant be made available within a year, that person shall be entitled to Collective redundancies are regulated by means of SL 452.80. A collective redundancy can arise depend - ing on the size of the workforce and the number of employees to be declared redundant within a period of 30 days. Consultation with the appropriate representatives must take place at the earliest possible opportunity and is to cover ways and means of avoiding the collec - tive redundancies or reducing the number of employ - ees affected by such redundancies and for mitigating the consequences thereof. Employers must provide the employee representative with a written statement be reinstated in that post. Collective Redundancies
detailing all pertinent information, including the selec - tion of the employees who are to be made redundant, as well as the period over which such redundancies are to be carried out. A copy of the written notifica - tion and a copy of the written statement must also be provided to the Director of Employment and Industrial Relations. Unless otherwise authorised, the employer cannot terminate the employment of employees affected by any projected collective redundancy before the lapse of 30 days from notification. Termination by an Employee of an Indefinite-Term Contract Employees are entitled to terminate their indefinite contract employment at any time, without assigning any reason, provided that the employee provides the employer with the required notice period. In such cases, the employer may either allow the employee to work their full notice period or, alterna - tively, terminate the employment and pay the employ - ee a sum equal to the full wages due for the unexpired period of notice. 7.2 Notice Periods In cases where the employer terminates an indefinite- term contract on the basis of redundancy, as well as in cases where the employee resigns from their post, the terminating party is obliged to provide the other party with notice of such termination. Minimum statutory notice periods are based on the length of continuous employment with the employ - er in that, for example, employees who have been employed for between six months and two years have a notice period of two weeks. The maximum notice period contemplated by law is 12 weeks. Notwithstanding the minimum notice period by law, in the case of employees with a technical, administra - tive, executive or managerial post, the parties may agree to longer notice periods. Should an employee fail to give the required notice, the employee will be liable to pay the employer a sum equal to half the wages that would have been payable
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