Can I be telling my employees what not to do in their free time?

Can I be telling my employees what not to do in their free time?

Author: Mattea Pullicino, Associate, Employment Law Department ©Fenech & Fenech Advocates 2022

The Industrial Tribunal (‘Tribunal’) in a most recent judgment in the names of Miriam Garcia Medina vs Plan 17 Limited came to the conclusion that management did not have the right to know or dictate what employees did on their days off.

Facts

The facts of this case revolved around an employee who chose to travel outside of Malta in August 2020 and returned positive for COVID-19.

It was stated that the employee had, prior to her travel received a number of verbal warnings, on what the Tribunal opined were matters that were not of a serious nature owing to the fact that Company representatives were not completely aligned on the alleged failures on the part of the employee. To this end the Tribunal therefore concluded that the Company did not have a valid and lawful reason to terminate the employee on the basis of these minor failures.

The Company however argued that the incident that led to the employee’s dismissal was the fact that she acted in an insubordinate manner when going against Company orders. The Company stated that employees had been required to inform management and obtain approval from management in order to travel outside of Malta at the time. This was however negated by the employee.

The Company argued that it had suffered financially as a result of the employee’s COVID-19 positive diagnosis owing to the fact that the restaurant in which the employee worked had to close temporarily as a result.

The Tribunal stated that it understood the disastrous effects caused by the restaurant’s closure however, the Tribunal noted that it could not be proven that the employee had become infected whilst travelling, in that the employee could have contracted the virus whilst in Malta. The Tribunal further noted that at the time of the incident in August 2020 there was no advice from the Maltese Health Authorities advising against travel and that at the time the infection rate had risen significantly in Malta.

On the basis of facts in question and the proof and arguments brought before it, the consideration that had to be made by the Tribunal was whether the dismissal on the basis of failing to inform and obtain approval from management to travel, as was allegedly mandated by the Company, was enough to justify the dismissal of the employee.

The Tribunal concluded that management did not have the right to know or dictate what employees did on their days off and that therefore the employee’s failure to inform the Company and obtain approval to travel outside of Malta in her free time could not be said or considered to constitute such a serious failure on the part of the employee to warrant dismissal.

On this basis the Tribunal found that the Company did not have a good and sufficient cause to terminate the employee’s employment and awarded the employee €9,000 in compensation. The Tribunal however fell short of detailing the basis and criteria upon which the compensated amount was formulated and reached.

Remarks

It can be said that employment issues revolving around COVID-19 and its effects have been, over the past two years of significant concern to employers and employees alike.

In this case, the Tribunal concluded that the employee’s failure to inform the Company and obtain approval to travel outside of Malta in her free time did not warrant her dismissal from employment and proceeded to find in the employee’s favour.

One must bear in mind however, particularly in relation to this case that an employer has a legal obligation to protect the health and safety of all its employees and has a duty of care in terms of law to all its employees. It may be argued that this obligation at law may be heightened in the context of a global pandemic and a public health emergency and that therefore perhaps one may argue that heightened monitoring of employees even beyond working hours was justified in the circumstances.

This Tribunal decision begs numerous questions; do employers have the right to impose on employees when such are not working, even more so perhaps in the context of a public health emergency? Is it not within the employer’s legitimate interest, particularly in terms of health and safety in extraordinary circumstances to impose certain requirements on employees even if outside of working hours? Do employees not have a right to privacy and to make use of their free time in any way they deem fit?

The answers are seldom black or white and most definitely require significant thought and consideration as well as a balancing exercise between the rights of employees and the obligations on an employer to be undertaken. The questions posed may also in the coming months potentially need to be seen in the context of the right of the employee to disconnect and disengage from work, in the form that such right will be formulated into law.

One may ponder and argue whether the Tribunal’s decision in this case was correct and just however, in any case revolving around a potential dismissal or otherwise, the merits in question must always be considered on a case-by-case basis and a thorough assessment on the part of the employer must always be undertaken with the aim of determining whether the reason or reasons for dismissing an employee amount to a “good and sufficient cause” in the eyes of the law.

Employers are often quick to come to the conclusion that a sufficient reason to terminate exists, however, the situation is seldom so straight forward and therefore an objective approach is crucial.

How can we help?

Should you require any further information or assistance on the matter, please do not hesitate to reach out to us personally on paul.gonzi@fenechlaw.com and mattea.pullicino@fenechlaw.com.


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