Court of Appeal Overturns Industrial Tribunal Decision in a Case of Unfair Dismissal

In the Industrial Tribunal case of David Magro v HSBC Bank Malta plc, the applicant alleged that he had been unfairly dismissed when the defendant bank had not accepted to renew his career break, resulting in his employment being terminated. The applicant had been granted such a renewal for several years but had agreed with the Bank that the last renewal would be final, and that by a specific date, he had to either resign or return to perform his duties with the Bank. Notwithstanding this agreement, the applicant applied once again for another extension which was refused by the Bank, resulting in his employment being terminated. The Tribunal had found that termination was unlawful and that the Bank had acted in a discriminatory manner against the applicant when it had refused him the opportunity to raise a grievance in terms of the collective agreement. This resulted in the applicant being awarded compensation equivalent to three years’ salary.

The Bank appealed this decision and argued that it was not clear on what basis the Tribunal had found that the termination was unlawful when the Tribunal itself had stated in its decision that it was the action of the applicant himself not returning to his duties at the end of the career break which led to the termination of his employment.

The Court of Appeal accepted this argument and noted that the applicant had made two separate requests to the Tribunal: 1) a declaration that the dismissal was unfair and 2) that the Bank had acted in a discriminatory way against him when it denied him the right to raise a grievance. It considered that the Tribunal’s entire reasoning was tied to this second request i.e. discrimination. As regards the first request, the Tribunal had agreed with the Bank’s position that the applicant himself had failed to honour the agreement relating to the extension of the career break. Therefore, it could not be said that the Tribunal had given a justification for its conclusion. The Court also agreed with the Bank that the Tribunal could not arrive at a conclusion that discrimination had occurred since there had been no comparison of ‘like with like’, i.e. with another Bank employee in a similar situation like that of the applicant. For these reasons, the Court concluded that no discrimination or unfair dismissal had taken place and therefore, the applicant was not entitled to any compensation.

The defendant bank was represented by Dr Christine Calleja.