The Malta Independent 18 August 2017, Friday

€10,000 compensatory award for unfair dismissal

Sunday, 13 August 2017, 08:30 Last update: about 4 days ago

An employee who said she was unjustly sacked, claiming that the company’s managing director personally hacked her Gmail account, interfered with her laptop and victimised her, has been awarded €9,9973.35 by the Industrial Tribunal.

Margaret Brincat, a former sales manager at Effective Marketing Ltd, which forms part of iMNG Limited was awarded the compensation after the tribunal rejected managing director Jason Attard’s defence that she had been dismissed on grounds of incompetency.

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The tribunal said it was “not satisfied that fair procedures were used” and ruled that her dismissal was procedurally unfair, citing the unwarranted dismissal as “unjust and abusive”.

The tribunal dismissed a claim lodged by Attard that he was entitled to an award for damages suffered, pointing out that he (Attard) had not made any legal claims or validation for any damages suffered through the employee’s dismissal, and consequently, it was the employee who requested compensation and not vice-versa.

In her evidence to the Tribunal, Brincat claimed that Attard had a “distinctive” system of running the company through threats, intimidation, unjustified excuses for continually interrupting or interfering with her phone calls, and hacking her personal Gmail account, which is a criminal offence.

Ms Brincat claimed her employer constantly abused his position of influence to tap into private phone calls, interfere in her transactions by intruding and hampering her sales efforts with customers, and that Attard had become “paranoid” and “suspicious” of her movements. He was acting strangely, trying to exert absolute control of all her communications and dealings instead of trusting her to faithfully conclude business with her clients.

This despite the fact that during her tenure as Sales Manager, Ms Brincat had recorded the highest sales ever registered by the company, with sales figures doubling and tripling during her brief eight-month sojourn with the company.

She said that Attard used to deploy a programme called ‘Thunderbird’ with illegal computer towers and equipment “calibrated” to take screen shots of her laptop and Gmail accounts every second. During her testimony, Ms Brincat said she suffered significant prejudice, undue mental duress, manipulation and acts of irresponsible and unbecoming behaviour demonstrated by Attard all the time.

Ms Brincat also claimed that Attard refused to sign her contract of employment and that it was only after five months from her initial employment that he “forced” her to sign, after changing several clauses in the original contract to suit his exigencies.

“It came from him, I saw it with my own eyes,” Ms Brincat said about the hacking. She said Attard used to compel her to leave work at unconventional times so he would be able to change passwords daily on all computers, tap into telephone lines, and order her to go with him to a nearby café early in the morning, all of which constituted unorthodox and strange behaviour.

The determination issued by the Tribunal said: “It was claimed by the respondent (Attard) that it is a fair dismissal and that it was linked to competency and the Tribunal does not believe this.” The Tribunal, presided by Chairman Charles Cassar also concluded that Attard never denied the amounts claimed that were due to Ms Brincat, and could not believe Attard’s version of events. In fact, the Tribunal also noted that Ms Brincat was never ever given either a verbal or a written warning. On the contrary, the Tribunal noted that just two weeks before her dismissal, Mr Attard had sent a logged SMS lauding Ms Brincat for her efforts and sales figures, which read: “I am very happy with you and with your work”. This also conflicted with Attard’s claims during the hearings.

The Tribunal also took particular note of hard evidence produced by Ms Brincat and one particular witness during the hearings, which contradicted what Attard was saying and alleging to be untrue and incorrect.

There was also documented evidence of an illegal Ponzi scheme being forced on the employees by Attard, as well as email evidence showing Attard intentionally giving orders to continue publishing articles that were plagiarised.

The Tribunal also found there was no evidence that Attard “considered any other option than termination. Furthermore, the Tribunal is not satisfied that fair procedures were used and therefore it is procedurally unfair and abusive”.

Thus the Industrial Tribunal, according to Cap 452 Art 36 (11), ordered the payment in compensation of unpaid salary and commissions due to Ms Brincat amounting to €9,973.35.

The hearing was held over a four-year period between November 2012 and July 2017. Ms Brincat was assisted throughout and represented by lawyer and legal counsel Dr Henry Antoncic.

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