Furthering the case for constructive dismissal in Malta

Abstract

The importance of work in an individual's life cannot be stressed enough. The loss of one's job is a traumatic event for most. People build much of their lives around their jobs, with the expectation that the income derived from their job will continue in the future. In recognition of this reality and in order to alleviate the financial hardship which dismissal might cause to employees, the law provides for adequate remedies in cases of unfair dismissal in the form of compensation, and in some instances also provides for reinstatement or reengagement. However, knowing the legal consequences which they may face later, employers are careful in dismissing an employee and may resort to other tactics in order to make the employee resign. What protection is afforded to such employees? This thesis will examine the concept and elements of 'constructive dismissal', a situation in which the employee is forced to leave his employment as a result of a breach of the employment contract committed by the employer, which for the purposes of the effects and remedies at law, is treated similarly as a direct dismissal. The first chapter will give an overview of the development of the employment contract, in order to understand why the need arose to develop such a concept. The elements of this concept and its acceptance in Maltese law will then be examined in the second chapter. In the third chapter, the circumstances in which constructive dismissal may arise are analysed. The fourth chapter will deal with the burden of proof in constructive dismissal cases. Finally, the fifth chapter will explore the effects of constructive dismissal under Maltese law and amendments to the present law will be proposed in order to strengthen the machinery of constructive dismissal in Malta.