On last day of work, one can apply to Industrial Tribunal

The four-month period in which a former employee may file an Industrial Tribunal action against the former employer starts on the last day of work.

This was held by the Court of Appeal on 12 June 2020 in Doreen Saliba v Foster Clark Products Ltd.

Saliba had filed an action before the Industrial Tribunal after she felt that she was forced to resign and therefore is alleging that there was a case of constructive dismissal.

The company pleaded that the action was time barred in terms of Article 75 (3) of the Employment and Industrial Relations Act, since the case was filed beyond four months when Saliba had tendered her resignation.

The Industrial Tribunal in its award held that Article 75 (3) of the Act precludes the Tribunal to hear a case which is presented after four months.  Saliba presented her resignation on 23 August 2018, worked her notice period until 26 October 2018 and presented the case on 22 January 2019.

The Company argued that the case should have been presented four months from 23 August 2018.

The Tribunal held that it is serious when an employee feels that he has no option but to resign.

The Tribunal pointed out working instructions issued by the employer are important since if they are not followed may result in disciplinary measures.

Therefore, an employee who disagrees with the working instructions has a dilemma on whether to ignore these instructions or face disciplinary action or not accept the situation and resign from his or her employment.

In this case Saliba felt offended by the downgrading of her status and the Tribunal appreciated that the status of an employee defines that employee.

In fact, Saliba’s letter of resignation describes this situation.  In her testimony she said that she hoped that the situation would change and in fact she was given the impression that change was possible.

The notice period was used for this purpose. When the notice period lapsed, management did not correct its actions and therefore Saliba went to her Union.

The company appealed the Tribunal’s decision on the grounds that the four-month period in which a case can be filed before the Industrial Tribunal had lapsed, and therefore the Tribunal’s decision was erroneous.

The Court of Appeal, presided by Mr Justice Lawrence Mintoff, echoed what the Tribunal held that this case could have been resolved amicably. The Court held that according to Article 75(3) of the Employment and Industrial Relations Act, the four-month period starts on her last day of work.

It is not contested that this is a constructive dismissal case and therefore from the dates given, the action was filed on time.

The Court of Appeal held that Article 75(3) of the Employment and Industrial Relations Act mentions “alleged breach” and not a “breach of a legal right” as the company is arguing.

The effective breach is when the relations between employer and employee are terminated.

It is for this reason that the Tribunal examined the facts of the case in detail and this was the correct manner how to deal with the plea.

The Court then moved to reject the appeal.