Mattea Pullicino January 25 2023 Can an employer dictate what their employees do on their days off? Fenech & Fenech Advocates | Employment & Immigration - Malta Mattea Pullicino Employment & Immigration FactsDecisionCommentIn a recent judgment,(1) the Industrial Tribunal decided that a company's management team did not have the right to know or dictate what the company's employees did on their days off.FactsThe facts of this case revolved around an employee who chose to travel outside Malta in August 2020. Upon her return, she tested positive for covid-19 and her employment was terminated.Prior to her travel, the employee had received a number of verbal warnings relating to what were understood to be matters that were not of a serious nature, owing to the fact that representatives of the company were not completely aligned as to the employee's alleged failures.The company, however, argued that the incident which led to the employee's dismissal was the fact that she had acted in an insubordinate manner in that she had gone against company orders. The company stated that its employees had been required to inform and obtain approval from its management team in order to travel outside of Malta at the time. This was denied by the employee.The company argued that it had suffered financially as a result of the employee's positive covid-19 diagnosis, owing to the fact that the restaurant in which the employee had worked had been forced to close temporarily as a result.DecisionThe Tribunal stated that it understood the significant impact of the restaurant's closure. However, the Tribunal noted that it could not be proven that the employee had become infected while travelling – the employee could have contracted the virus while in Malta. The Tribunal further noted that, at the time of the incident in August 2020, the Maltese health authorities had issued no advice against travel. At the time, the covid-19 infection rate had risen significantly in Malta.On the basis of the facts in question and the proof and arguments brought before it, the Tribunal had to decide whether the employee's failure to inform and obtain approval from the company's management team to travel, as had allegedly been mandated by the company, was enough to justify her dismissal.The Tribunal concluded that the company's management team did not have the right to know or dictate what the company's employees did on their days off. Therefore, the employee's failure to inform the company and obtain its approval to travel outside Malta in her free time could not be 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.CommentOver the past two years, employment issues concerning covid-19 and its effects have been 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.It is worth remembering, 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 a duty of care under law towards them. It may be argued that this obligation may be heightened in the context of a global pandemic and a public health emergency and that, therefore, it could be argued that the company's heightened monitoring of employees even beyond their working hours was justified in the circumstances.This Tribunal decision begs numerous questions:Do employers have the right to impose obligations on employees when they are not working, particularly in the context of a public health emergency?Is it within the employer's legitimate interest, particularly for the purpose of maintaining health and safety in extraordinary circumstances, to impose certain requirements on employees even outside of employees' 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 require significant consideration as well as a balancing exercise between the rights of employees and the obligations on employers. In the coming months, these questions may also need to be seen in the context of the employees' right to disconnect from work, in the form that such right will be formulated into law.It may be questioned 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. The employer must undertake a thorough assessment with the aim of determining whether its reasons for dismissing an employee amount to a "good and sufficient cause" in the eyes of the law.Employers are often quick to conclude that a sufficient reason to terminate exists. However, the situation is seldom so straightforward; therefore, an objective approach is crucial.For further information on this topic please contact Mattea Pullicino at Fenech & Fenech Advocates by telephone (+356 2124 1232) or email ([email protected]). The Fenech & Fenech website can be accessed at www.fenechlaw.com.Endnotes(1) Miriam Garcia Medina v Plan 17 Limited.