On the 15th of September 2023, the Court of Appeal (Inferior Jurisdiction) (Appeal Number: 155/2022 LM) reversed the Industrial Tribunal’s decision that had previously considered that the plaintiff had been unfairly dismissed from his employment with a bank. The Court was tasked with deciding on the employee’s allegations during proceedings which primarily related to claiming discriminatory treatment and unfair dismissal.

The employee had embarked on a year-long career break during his employment with the bank after having first obtained permission from management in compliance with the Collective Agreement then in place. The bone of contention revolved around the way in which the employee was to return to work after the expiration of the career break. The plaintiff argued that upon his return he was offered employment which fell below his level of expertise. Thus, the plaintiff considered that he was justified in his refusal to accept the position offered to him and his failure to return back to work. Moreover, the plaintiff asserted that he was forbidden from making use of the Individual Grievance Procedure contemplated in the Collective Agreement to address his concerns. This argument, alongside the fact that according to the plaintiff other employees who went on a career break were treated more favourably upon their return, served as the basis of the allegation of discrimination.

Whilst the Industrial Tribunal ruled that there was no discrimination, it found that the plaintiff had been unfairly dismissed. The Industrial Tribunal arrived at this decision because it considered that the employer was in breach of the Collective Agreement which stated that failure to report to work without authorisation constitutes misconduct which must be addressed with disciplinary action. However, the Collective Agreement when considering disciplinary action did not contemplate termination from employment. Thus, according to the Tribunal, the fact that the company opted to terminate the plaintiff’s employment when this was not one of the consequences mentioned in the Collective Agreement amounted to an unfair dismissal.

The Court of Appeal overruled the Tribunal’s decision, declaring that the plaintiff’s termination was lawful. The Court highlighted the risk element characterising a career break noting that employees taking a career break cannot expect, as a state of fact, that upon their return to work, they will be placed in an equivalent position as the one they were in before leaving. In fact, the plaintiff, prior to taking the break, was informed of this risk and the defendant company did not promise a particular grade or position to the plaintiff once he returned.

Furthermore, the Court ruled that this was not a case of misconduct on the part of the plaintiff. The plaintiff’s failure to return to work after a one-year absence signalled his intention of not wanting to go back to work with the defendant company. This was further evidenced by the fact that the plaintiff, during the career break, signed a fixed-term contract of three years with a government agency and would have had to pay a hefty penalty if he terminated such contract prior to the lapse of the fixed-term. Ultimately, it was the plaintiff who unilaterally decided not to return to work even though he was obliged to do so according to the Collective Agreement which set the maximum allowable period of a career break to twelve months. In response to the plaintiff’s claim of not being allowed to make use of the grievance procedure, the Court agreed with the defendant bank’s argument that once the plaintiff abandoned his employment with the bank and remained employed with a government agency, there was no Collective Agreement regulating the relationship between the parties as the employment had been terminated. Thus, there was no disciplinary measure which was applicable in the circumstances.

The bank was represented by Dr Christine Calleja.