Employment Status in the Spotlight: Key Takeaways from a Landmark Decision
The dispute between Perrine Maire-Louise Lydie Eulalie Bourgeais and Sara Grech Limited, which was finally decided by the Industrial Tribunal on 4 October, 2022 (decision numbered 2848), pertained to the termination of Ms Bourgeais' employment as a real estate agent at Sara Grech Limited. This case has brought to light several crucial matters and considerations that are of equal significance to both employers and employees.
Employment Status
Engaging individuals as self-employed independent contractors is a common occurrence, especially in certain sectors such as the real estate agency sector. This dispute highlighted the importance of employers attributing the correct legal status to individuals who provide services or carry out work for them.
In this particular case, notwithstanding that Sara Grech Limited had formally and contractually engaged Ms Bourgeais as a self-employed agent, the Industrial Tribunal analysed Ms Bourgeais’ legal status in light of the Employment Status National Standard Order (Subsidiary Legislation 452.108).
For an overview of the various criteria and considerations that are set out in the Employment Status National Standard Order, please visit the following link: #
The Industrial Tribunal concluded that Ms Bourgeais’ engagement with Sara Grech Limited satisfied all eight criteria that are set out in the Employment Status National Standard Order, such that her legal status was deemed to be that of an employee, rather than a self-employed contractor.
Disciplinary Proceedings
Another key takeaway from this dispute is the importance of employers adopting and following internal disciplinary processes and procedures that are clear, transparent and adequately communicated to employees.
In this particular case, the Industrial Tribunal highlighted the following important considerations in the context of disciplinary actions against employees:
- The employer should clearly identify and determine the nature of an alleged transgression or misconduct by an employee.
- All details of the alleged transgression or misconduct should be clearly and comprehensively communicated to the relevant employee in writing.
- The employee should be allowed to provide his/her version of the facts, and to defend himself/herself against any alleged transgression or misconduct.
- Apart from engaging in written communications, the employer should set internal meetings for the relevant disciplinary case to be considered and discussed, during which the relevant employee should be entitled to be heard and defend his/her case.
- During any internal disciplinary meetings, the employee should be given the opportunity of summoning witnesses, as well as demanding that he/she be represented during any such hearings by a person of his/her choice.
- The employer should retain adequate written records of disciplinary processes and measures taken against an employee, even in the case of verbal warnings.
The Importance of Written Policies & Procedures
Adopting and implementing clearly written disciplinary policies and procedures may be a useful tool for the employer to establish clear parameters and standards of behaviour and performance of its employees, as well as to enforce a fair, transparent and proportionate disciplinary system amongst its employees.
Formal disciplinary policies and procedures may, for instance, outline the various scenarios in which disciplinary measures may be taken against an offending employee, the types of disciplinary measures that may be prescribed and taken by the employer, as well as the procedures and steps to be followed in relation to the imposition of any such disciplinary measures.
Such a document would benefit both the employer and the employee by increasing the transparency of the manner in which the employer deals with disciplinary matters, and by providing guidance and clarity to both parties as to the various procedures to be followed by each party in relation to disciplinary matters that may arise from time to time.
If you require further information on this matter, please do not hesitate to contact us on info@empleo.com.mt or by getting in touch through any of our other contact methods.