Unfair dismissal does not subsist in cases of employee absenteeism

On 24 November 2021, the Industrial Tribunal, presided over by Mr Franco Masini, decided a case in the names Lorraine Farrugia vs Lead Service Technologies Ltd (C-64386), wherein the plaintiff held that she was unfairly dismissed from her employment by the defendant company.

In its judgement, the Tribunal makes reference to the concepts of abandonment of employment and constructive resignation, which, in this case, justified termination from the employer’s end.

In this case, the plaintiff had benefitted from a period of maternity leave which lasted for around 4 months, following which, she returned to work on 2 April 2019. From this date onwards, there was a series of absenteeism of the plaintiff from the workplace due to family reasons. According to the defendant company, by 9 May 2019, the plaintiff had already exhausted all her leave entitlement, including the emergency leave to which she was entitled. Notwithstanding the defendant company’s request to the plaintiff to return to work, the plaintiff did not resume work. Consequently, she was informed by the defendant company, by means of an email, that her employment was terminated as a result of abandonment of work.

The plaintiff claimed that due to family reasons, she was constrained to remain at home. She alleged that the defendant company wanted to terminate her employment since during her maternity leave, another person was employed. She also claimed that no complaint had ever been made in her regard and that she had always carried out her duties properly.

The Court considered the fact that the defendant company always accommodated the plaintiff’s requests for leave (the reasons for which were justifiable), even though the company had to bear the repercussions of such requests. Eventually, when the plaintiff’s leave entitlement was exhausted, the Tribunal remarked that the defendant company had no alternative but to ensure that the plaintiff returned to work.

The Court also considered that the plaintiff’s assertion that the defendant company wanted to terminate her employment was unfounded. This is because, inter alia, upon returning from her maternity leave, the defendant company had offered the plaintiff the same role she occupied before her maternity leave and under the same conditions. According to the Court, the sole reason for the plaintiff’s dismissal was her absence from work and that her refusal to return to work amounted to constructive resignation.

For these reasons, the Tribunal held that the plaintiff’s dismissal from her employment by the defendant company was justified since this was due to the plaintiff’s abandonment of her employment.

In the Tribunal’s analysis of the facts of the case and its application of the law to the facts, it is made clear that unfair dismissal does not subsist in cases of employee absenteeism for periods beyond those provided for at law (albeit for justifiable reasons) where the employer is compelled to carry the burden on his/her own and the employee fails to co-operate in order for a solution to be found. The Tribunal’s decision shows that in such scenarios the employer would have no other option but to terminate the employee’s employment.