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Jurisdiction of the Industrial Tribunal in the Case of Fixed Term Contracts Successfully Challenged

May 2019 - Employment. Legal Developments by Mamo TCV Advocates.

More articles by this firm.

Employment Law Update

By its judgment of the 25th of January 2019 in the names Galea vs. L-UniversitĂ  ta' Malta, the Court of Appeal decided that cases of termination of fixed term employment contracts do not fall within the Industrial Tribunal's competence. [1]

The Court considered Article 75(1) of the Employment and Industrial Relations Act (Cap. 452 of the laws of Malta), which lays down the jurisdiction of the Industrial Tribunal. The Court concluded that the Tribunal had no jurisdiction under sub-article (a) which speaks about 'alleged unfair dismissal' and this due to the fact that the Act's definition of "unjust dismissal" currently reads as follows: "the termination by the employer in respect of that worker of a contract of employment for an indefinite time…". The Court then went on to consider whether the Tribunal's competence could be founded on the basis of sub-article (b), which provides that the Tribunal has jurisdiction in all cases falling within the jurisdiction of the Industrial Tribunal by virtue of Title I of this Act. The Court held that the law was not stating that the Tribunal had jurisdiction in all the cases mentioned under Title I but only in those cases which fall under the jurisdiction of the Tribunal by virtue of Title I. In the case of termination of fixed term contracts, there is no reference to the Industrial Tribunal.

In its judgment, the Court of Appeal also overturned a previous decision that was frequently cited by the Industrial Tribunal in similar cases, but which turns out to have provided an incorrect interpretation of Article 75(1) of the Employment and Industrial Relations Act. [2]

Dr Christine Calleja and Dr Mark Soler appeared for the appellant University of Malta.

[1] Galea vs. L-UniversitĂ  ta' Malta (25th January 2019) Court of Appeal (Inferior) App. n. 35/2018/AE

[2] Rita Nehls vs. Sterling Travel and Tourism Limited (13rd February 2005) Court of Appeal (Inferior) App. n. 4/2004 per P. Sciberras J. 

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