Dismissing a pregnant employee during Probation Period

ARTICLE

07 Aug 2020

Maltese law allows employers to legally dismiss an employee during the probation period without giving a reason for such dismissal. Nevertheless, in terms of S.L. 452.91 entitled the Protection of Maternity (Employment) Regulations (the “Subsidiary Legislation”), when terminating a pregnant employee during probation period, the employer is duty-bound to provide the pregnant employee a reason in writing which justifies the dismissal, which must be for “good and sufficient cause” and unrelated to the employee’s condition.

If the employer fails to give written reasons for the termination of employment of such employee at the time of dismissal or if the employee considers that the reason given by the employer is unjustified, and/or if she considers that the dismissal was unfair, the employee  may present a complaint of unfair dismissal before the Industrial Tribunal within four months from the date of the dismissal.

Most recently, Article 12 A (c) of the Subsidiary Legislation was central in the case Maria Caruana vs GCS Accounting Malta Ltd which was decided by the Industrial Tribunal on the 9th of July 2020.

When dismissing the pregnant employee during the employee’s probation period, the employer provided reasons for such dismissal by which the employer sought to justify the employee’s termination of employment. The employer advised that primarily the dismissal took place in view that the employee made a number of material errors, during her employment, and there may also have been a case of conflict of interest which transpired from an issue between one of the employer’s clients and the employee’s partner.

The employee rebutted such claims stating the only reason for which she was dismissed by the employer was on account of outside pressures made by a third party, namely, the employer’s client with whom she might have had a conflict of interest according to her employer. The employee also stated on record that the employer fabricated allegations regarding her performance to justify the dismissal.

When analysing the facts of the case, the Industrial Tribunal, whilst agreeing that serious errors were made through the employee’s carelessness and lack of responsibility, it had serious doubts as to whether such errors were considered grave enough to justify as a good and sufficient cause for the employee’s dismissal of employment.

The Industrial Tribunal also went on to assess the conflict of interest allegations brought forward by the employer. From the Industrial Tribunal’s examination, it became apparent that one of the employer’s clients and the employee’s partner, who was also a client of the employer, had a falling out. The employer’s client badgered the employer to dismiss the employee, so much so, that he even sent a letter to the employer, which letter was shown to the employee, advising the employer that should it not dismiss the employee he would take his business elsewhere. In this regard and in light of the employee receiving specific instructions from the employer at the start of her employment so she would not work on or oversee any work provided to the employer by her partner, the Industrial Tribunal denounced the conflict of interest claim as it was clear that the employer succumbed to the client’s pressure and ultimatum. 

Taking note of the circumstances which led to the pregnant employee’s dismissal during the probationary period, the Industrial Tribunal confirmed that the employee’s dismissal was not for a good and sufficient cause and thus, it breached Article 12A(c) of the Subsidiary Legislation, leading to the employee’s unfair termination of employment. The Industrial Tribunal awarded the employee €10,000 in damages for such unfair dismissal.