Dr Joseph Calleja

 

In a recent case, the Industrial Tribunal had to consider whether the dismissal of an employee who used to work from home and had refused to return back to the office constituted an unjustified termination of employment.

The facts of the case were as follows: an employee (now plaintiff) who was employed as a creative web designer on a full-time basis requested the company employing him to permit him to start carrying out his duties from home. This request was made after a recommendation by the employee’s doctor as he suffered from a chronic heart condition and following the manifestation of certain symptoms related to this condition.

The company decided to accede to this request for a one-month trial period and on condition that the employee reported to the office for a weekly meeting. It subsequently extended this trial period after a month had elapsed. After some weeks, the company informed the employee that it required him to return to the office to carry out his duties. He was offered the opportunity of returning back to the office on a gradual basis and the company also informed him that it was ready to discuss other solutions to facilitate his work. However, the employee said that the solution would be for the situation to remain as it was, ie with him working from home. The company, in turn, informed him that it was terminating his employment.

In his testimony, the company’s Managing Director said that, due to an increase in work and projects, they required a graphic designer to be in the office as part of the team and it was for this reason that they had dismissed the plaintiff. These facts were also confirmed by the Chief Marketing Officer, who further affirmed that when one works from home the quality of the work suffers and matters tend to complicate themselves. He also said that he used to observe the plaintiff being distressed and that the arrangement to work from home had only been a temporary measure.

He also mentioned that, prior to the termination of his employment, and as a way of  helping the plaintiff, they offered him the possibility of working as a freelancer. When questioned about the quality of the work produced by the plaintiff, the witness said he was very satisfied with his work.

The Consultant Cardiologist entrusted with the care of the plaintiff, also took the witness stand. She explained that her recommendation that the plaintiff work from home was mainly due to the fact that commuting to and from work was negatively affecting his health. She also pointed out that the company had never approached her in relation to the certificates she had released to the employee.

In his testimony, the plaintiff explained that, on his engagement with the company, he had disclosed the condition from which he suffered to the company when completing the Medical Insurance Policy documents. The reason why he requested the company to allow him to work from home was to avoid commuting as this was leaving him exhausted due to the condition from which he suffered.  He said that his colleagues often used to praise his work and that he always carried out the duties he was assigned.

The plaintiff explained that, following his dismissal, he had undergone major surgery, as a result of which his health had improved significantly.  He also said that at present he was, in fact, working from an office and that had he had his operation while he was still employed with the defendant company, he would have returned to the office.

In its final submissions, the company pointed out that, in view of the plaintiff’s condition, it had undertaken to assist and accommodate him. It also made reference to the employment contract with the plaintiff, which stipulated that he had to work from premises indicated by the company. With regard to the medical opinion, the company observed that this was merely a recommendation and did not mandatorily state that the plaintiff had to work from home.

The plaintiff submitted that the whole issue which the Tribunal had to determine was whether there existed any duty or obligation on an employer to make adjustments in the system of work of employees as a result of certain personal circumstances in which the said employees find themselves, and if such an obligation existed, what are the parameters. The Plaintiff proceeded to argue that, although no employer had a general duty to accommodate the requests of employees, there existed certain instances contemplated in law, specifically the Equal Opportunities (Persons with Disability) Act, Chapter 413 of the Laws of Malta, which actually imposed such an obligation on employers.

The Plaintiff continued by referring to the definition of ‘disability’ as provided in this law and said that his condition fell within the definition. Consequently, the employer was bound to provide reasonable accommodation for the employee. A defence available to the employer would be that the required alterations unduly prejudiced the operation of its business. Although mention of pending large-scale projects was made in the testimony of one of the Company’s  officials, this was not substantiated by the production of evidence.  

In its deliberation, the Tribunal noted that there exists no obligation at law for employers to allow their employees to work from home. Nevertheless, if the employer acceded to such a request the employee concerned should be treated the same as the other employees working in the office. The Tribunal agreed with the submissions made by the plaintiff that the defendant company had failed to provide evidence that the employee was failing in his duties or that his work was not satisfactory. Neither did the company produce any evidence to substantiate the upcoming major projects that were mentioned.

The Tribunal observed that dismissal of an employee should be seen as a last resort and that an employer should do its best to avoid it. On this note, the Tribunal held that the employee was never given any formal warning that he was failing in his duties or that he was not working the weekly hours he was expected to work. It also observed that the condition from which the plaintiff suffered qualified for the definition of ‘disability’ as contemplated at law. It held that employers had an obligation to address the disadvantages from which people with disability suffer. The Tribunal held that making arrangements for a disabled employee to work from home comprised a measure that satisfied the ‘reasonable accommodation’ requirement provided for at law. Failure to implement this on the part of the employer was considered as discrimination against employees on the grounds of disability.

For these reasons, the Tribunal deemed that this termination of employment by the defendant company was unjust and discriminatory. Following due consideration of  all the facts of the case, it proceeded to condemn the company to pay the employee €20,000 as compensation for the unjust dismissal and €10,000 as compensation for the discrimination from which he suffered.

 

Dr Calleja is a practising Advocate