MALTA Law and Practice Contributed by: Paul Gonzi, Rebecca Diacono and Mattea Pullicino, Fenech & Fenech Advocates
The law makes no specific reference to the concept of “wrongful dismissal”, that being a claim based in contract law for breach of contract. That being said, in so far as there is a breach of contract, the employee would be able to raise that as a fact corroborating the unfair dismissal, keeping in mind that when a tribunal liquidates compensation for unfair dismissal, it is enti - tled to take into account all relevant considerations, including damages arising out of a breach of contract. An employee may also raise a claim for damages aris - ing out of breach of contract before the civil courts and may also seek a remedy for the performance of the contract. In certain cases, employees may also have recourse to the Department of Employment and Industrial Rela - tions, which, in turn, has the competence to investi - gate and, if need be, prosecute offences committed in breach of employment law. 8.2 Anti-Discrimination Anti-Discrimination Grounds Protection against discrimination is one of the funda - mental rights and freedoms enshrined within the Mal - tese Constitution and it effectively protects persons from being discriminated against in every aspect of work life. The EIRA broadly defines discriminatory treatment as any distinction, exclusion or restriction which is not justifiable in a democratic society. This includes, but is not limited to, discrimination on the grounds of pregnancy, disability and gender. The list of grounds provided for in the EIRA is non-exhaustive in nature and therefore, although not specifically mentioned therein, age or sexual orientation can also be deemed as grounds on which to claim that treatment was dis - criminatory, provided that the distinction, exclusion or restriction in question is not otherwise justifiable. The EIRA also prohibits discriminatory treatment throughout the employment life cycle, in that dis - criminatory treatment is unlawful at the recruitment stage, during the employment relationship and during termination. Differential treatment may be justified and is not deemed discriminatory – taking into account the
nature of the vacancy to be filled or the employment offered – where a required characteristic constitutes a genuine and determining occupational requirement, or where the requirements are established by applicable laws or regulations. The law also protects part-timers and fixed-term con - tract employees from being discriminated against by virtue of their employment status. Burden of Proof An employee claiming discrimination must merely establish a prima facie case sufficient to indicate dis - criminatory treatment. Once the employee succeeds in showing a prima facie case of discrimination, it is then up to the employer to prove the contrary. Employers are obliged to respond to queries alleging discrimination within a fixed period of time. Damages and Relief An employee who alleges that they have been sub - jected to discriminatory treatment must file a claim before the Industrial Tribunal within four months of the alleged breach. Should an employee succeed in their claim against the employer, the employee will be entitled to monetary compensation. It is worth noting that the parties are free to reach an out-of-court set - tlement at any point during the proceedings. There is no statutory formula by which the tribunal determines compensation. However, in determining the amount of such compensation, the tribunal must take into consideration the real damages and losses incurred by the worker who was unjustly dismissed, as well as other circumstances, including the work - er’s age and skills, that may affect the employment potential of said worker. Employees are expected to No regulations have been enacted by the Maltese leg - islature in relation to the digitalisation of employment disputes. However, in view of the Industrial Tribunal being able to regulate its own procedures in so far as the principles of natural justice are adhered to, the COVID-19 pandemic has spurred the Industrial Tri - bunal to be more willing to accept witnesses giving mitigate their losses. 8.3 Digitalisation
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