Following the change in government, incumbent chairpersons of the Industrial Tribunal were directed to offer their resignations. All, bar one, who appears to have taken the entirely correct position that as an occupant of quasi-judicial office, it was inappropriate so to do, complied. The offer made was taken up in the case of six individuals, but the rest, including the one who had not offered to resign, were allowed to retain their chairmanship.

The direction to offer resignations, it is known, had been given in connection with previous elections. It was as misguided and inappropriate then as it was now, but there is a material difference in the current case: a number of chairpersons’ offers were taken up.

Six chairpersons, in effect, have been replaced simply because there was a change in government.

It is appropriate to outline the function of the Industrial Tribunal at this juncture, as it seems that there may be some lack of clarity on this.

The tribunal functions as the exclusive adjudicating authority in cases of alleged unfair dismissal. Any employee who wishes to contest termination of employment must – there are no two ways about it – resort to the tribunal, which will hear the case, respecting the law of evidence, and arrive at a decision as to the lawfulness of the dismissal, awarding monetary compensation or ordering reinstatement if the issue is decided in favour of the dismissed employee.

The tribunal, in basically the same manner, adjudicates on issues of sexual harassment, victimisation or discrimination in employment, though in these areas it does not necessarily have exclusive jurisdiction. The end result, however, is the same: a decision is reached following the hearing of evidence and submissions and from this, as from the result of a dismissal case, consequences flow, consequences that are enforceable in the same manner as any civil or other court judgment.

The Industrial Tribunal also adjudicates, with a view to establishing a means of compulsory settlement, over industrial disputes, using the same procedure, by and large, as the other types of cases mentioned above. It is, I submit, accepted and settled law, therefore, that the Industrial Tribunal has a quasi-judicial function.

I submit further that this necessarily implies that the tribunal must be independent and free of political interference. The law (Cap. 452 Employment & Industrial Relations Act) sadly does not spell this out; in fact, it is decidedly lacking in this regard, but in a country that is subservient to the Rule of Law, I believe it is crystal clear.

The ministry, however, does not appear to believe this to be the case, at least so far as one can gather from its response to my comments, reported in various areas of the media.

Citing, perfectly accurately, the provisions of the law relating to the manner in which chairpersons are appointed, the ministry sought to justify further the changes made by letting us know that the Malta Council for Economic and Social Development had approved the nominations, an assertion for the truth of which I of course take Minister Helena Dalli’s word. I have no doubt that the MCESD approved the new nominees, though it is not known whether it was consulted about the resignations that allowed the nominations to take effect being accepted.

But this is not the point, with all due respect.

In the first place, given that the Industrial Tribunal is virtually a court, the individuals presiding over it should never, not in 2002 nor 2008 nor 2013 nor before, have been pressured to offer their resignations.

In the second place, the said resignations should not have been offered, however much pressure was exerted.

In the third place, proper respect for the independence of the tribunal, a sine qua non as we have seen, should have dictated that the error created by the excess of zeal that prompted the direction to offer resignations and compliance therewith was not compounded.

The Tribunal must be independent and free of political interference

That the law can be interpreted as having been followed, insofar as concerns the manner of nomination, is no excuse. Even worse, there is anyway nothing in the law that allows resignations to be demanded, even if there is no real security of tenure for a chairperson, due to the way the law is written.

The upshot is that we now have an Industrial Tribunal that can only be perceived as being presided over by individuals who are there because the Government allows them to be there. There will be those who argue, and I would not dispute this, that the individuals concerned are not the type to kow-tow to the hand that feeds them, but again, this is simply not the point.

The issue may be put in easy terms: what is an individual dismissed by a State-owned entity going to feel when his or her case comes before a tribunal presided over by an individual who holds office in the circumstances described above? No prizes for the obvious answer.

It will take significant persuasive skills to overcome, if at all, the perception of dependence that I fear has been created, and I am not entirely convinced that this perception will not spread to the tribunal in the context of all its cases, not just those in which the Government is involved. It is a cliché, but a stark truth nonetheless, that when justice is not seen to be done, the perceived effect is that it is not done, even if in fact it is.

The way the ministry, not to put too fine a gloss on it, has severely bungled this matter has resulted in severe consequences to the various parties that are involved in cases in different stages of hearing.

Here again the Ministry has taken hold of the wrong end of the stick: the law allows the Prime Minister to vary the composition of the tribunal and in this case, incumbent chairmen are to complete the cases before them. The law is silent on the matter of when chairmen have their resignations, imposed or otherwise, accepted.

In fact, it is a logical conclusion, that seems to have escaped the ministry, that when a person resigns office, he or she resigns, punto e basta. This is, in fact, what happened and the resigning chairmen have, at least in one case and the others are assumed to have done the same, returned the relevant files to the Tribunal’s registry, leading to cases being cast into limbo, and in any event prejudiced, because it is well known that the standard of adjudication suffers when the adjudicator has to read, rather than hear, the evidence. In fact, many adjudicators prefer to have cases heard again.

It has also been pointed out that the tribunal as now composed is seriously skewed in favour of the General Workers’ Union, due to various past and present relationships. That this is a perception that has a basis in fact is undeniable and the obvious integrity of the appointees will not prevent many of them being rendered unable to hear cases where the GWU is involved.

There is an issue that compounds this: many appointees are also dependent, to a greater or lesser extent, on the Government for fees, salaries or honoraria outside the context of their incumbency of the chairmanship.

These individuals are also precluded, in strict law, from hearing matters in which the Government has an interest.

All in all, it may be appropriate for a swift and fundamental change in the law: instead of the current hybrid that the ministry has brought into the world, controversies in the sphere of industrial law should be returned to the Civil Court, where they properly belong.