Abandoning one’s employment without good and sufficient cause

The Court of Amsterdam, sub district Court Division, on December 16, 2010, in the case between Mediterranean Aviation Company Ltd vs S. Vervaat applied Maltese employment law and decided that the employee abandoned his employment without good and sufficient cause. The employee was held liable to pay his former employer an amount equal to half the wages that would have been payable till the end of his employment contract, in accordance with Maltese law.

The facts in this case were as follows:

The Maltese company Mediterranean Aviation Company Ltd, the employer, filed legal proceedings before the sub district Court Division, in Amsterdam against its former employee S. Vervaat, a Dutch national, residing in Amsterdam, to recover sums due for breach of a contract of employment. The contract of employment was regulated by Maltese law.

The company operated an airline company with approximately 170 employees. It carried out business in Northern Africa for the oil industry and its home bases are Malta International Airport in Malta and Tripoli International Airport in Libya. The company had its registered office in Malta.

On August 1, 2007, Mr Vervaat was employed for a fixed term of two years as a pilot as specified in the written employment contract. His most recent monthly salary amounted to €5,000, exclusive of emoluments. By the letter of July 16, 2009 the employment contract was extended by a definite period of one year, therefore, ending on July 31, 2010. The following provisions of the written employment contract were relevant for the present case:

14 Termination

Should the employer dismiss the employee for a good and sufficient cause before the expiration of the period specified in Article 1 hereof, the employee shall not be entitled to any benefits which should have accrued to him in respect of the remainder of this contract.

For the avoidance of doubt, it is expressly agreed that the term “good and sufficient cause” as defined by the employer, shall include, but not be limited to: Redundancies due to curtailment or lack of work, loss of aircraft management contract, unsatisfactory performance; absenteeism; violation of any applicable laws, rules or regulations; conduct which is prejudicial to the interest of the employer; illness or incapacity to perform his duties under this agreement for a continuous period in excess of thirty (30) days; withdrawal or withholding of licences (if applicable); and inability to travel to the base of operations for any reason whatsoever, with the exception of force majeure;

In the event that the employee terminates this contract of service prior to its expiration or gives the company good and sufficient reason to terminate this employment or abandon the service of the employer, before the expiration of the period specified in Article 1 (duration) hereof, the employee shall be bound to pay the employer a sum equal to one half of the full remuneration to which he would have become entitled if he had continued in the service of the employer for the remainder of such period. Such sum shall be payable immediately upon a simple demand in writing.

In the event that the employer dismisses the employee before the expiration of the period specified in Article 1, hereof, for no good and sufficient cause, the employer shall pay to the employee one-half of the full wages that would have accrued to the employee in respect of the remainder of the period specified in Article 1 (duration) hereof.

In the circumstances, a dispute arose between the parties, following an audit carried out by the company. According to the company, Mr Vervaat failed to use a manual load sheet on a flight from Ubari but an electronic version. Mr Vervaat stated, in an e-mail to the company dated September 1, 2009, that he considered himself to be suspended from his duties with immediate effect.

Mr Vervaat collected his personal belongings from offices of the company and booked a flight to Holland, on September 2, 2009. He left his own plane in Tripoli.

In a telephone conversation on September 4, 2009, with a colleague, he made it clear that he was not going to return to work. The company wrote to him on September 4, 2009, to which Mr Vervaat replied only on October 19, 2009. He wished to vary the company’s procedures unilaterally, on the basis that as “commander” he was ultimately responsible for a safe and legal execution of a flight.

The company disagreed and expected its employees to follow its directions as per operations manuals. The company claimed that Mr Vervart abandoned his employment as from September 2, 2009. As a consequence, it requested him to pay a sum equal to half the wages that he would have earned in the remainder 11 months of his fixed term contract amounting to €28,215.

Mr Vervaat objected. The applicable Maltese law was the Employment and Industrial Relations Act 2002 (EIRA).

Section 36 (12) provides that “an employee who abandons the service of his employer before the time definitely specified by the contract of service, shall pay to his employer a sum equal to one-half of the full wages to which he would have become entitled if he had continued in the service for the remainder of the time so specifically agreed upon:...”

The company requested the court to order Mr Vervaat to pay:

• €28,215 with interests;

• €3,000 as the replacement value of the company property;

• An amount for collection charges; and

• All judicial costs.

The company said that the Amsterdam courts had jurisdiction to hear the dispute. It made reference to a legal opinion of Matthew Brincat, a Maltese lawyer, who subscribed to the company’ allegations.

Mr Vervaat in reply, contested the company’s claims and proceeded by filing a counter-claim.

It requested the court to order the company to pay it €28,215. He submitted that:

The company had a reputation of non-consulting its employees

He denied abandoning his employment and allegedly temporarily suspended his flying duties, until the dispute was resolved. He said that he had reasons for the suspension: He deemed himself “unfit to fly”. He did not consider himself capable of taking responsibility for a flight and that the company was making the operations of flights less safe. He insisted that as commander, he was responsible for the safety of the flight. He claimed that the company had effectively dismissed him, without good and valid reasons.

On December 16, 2010, the Court of Amsterdam delivered its judgment in favour of the company in the light of Maltese law. The following reasons were given for its decision:

No dismissal: There was no clear evidence that the company had dismissed Mr Vervaat.

The company had the right to give its employees reasonable instructions regarding the execution of their duties. Mr Vervaat was obliged to show that he had good reasons to suspend himself from his duties.

The attitude of the parties: The court felt that Mr Vervaat escalated the conflict and put up excessive resistance to the company’s instructions. The fact that communication broke down was mainly attributed to Mr Vervaat.

Mr Vervaat had to show that as a result of the conflict he was “unfit to fly” – he had produced no evidence to this effect. The court considered that Mr Vervaat failed to give good reason for suspending his duties. Instead, he took a unilateral decision sent on e-mail to his employer and returned home. He did not act with the care expected from an employee. There was no evidence that there existed objective, urgent reasons for his departure.

The court concluded that in absence of a good and sufficient reason for the termination of his duties, the sanctions mentioned in article 36 (12) EIRA applied.

It ordered Mr Vervaat to pay the company €28,215 with interests as well as all judicial costs.

This judgment is still subject to appeal.

Dr Grech Orr is a partner at Ganado & Associates.