Returning to Work after Maternity Leave
News    ·   06-06-2017
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AUTHOR: Ron Galea Cavallazzi, Marisa Vella, Edward Mizzi

The Employment and Industrial Relations Act (Chapter 452) states, in article 36(20), that a female employee must resume work for at least six months upon the termination of maternity leave. Failing this, an employee is liable to refund the full amount of wages received during maternity leave. The exception to the rule is that an employee may abandon the service of an employer on grounds of good and sufficient cause – a right allowed at any point in time by virtue of the Act.

In a recent judgement delivered by the Court of Magistrates of Malta on 3 May 2017 in the names of Damian Mifsud and Jean Pierre Schank as directors for QGen Limited vs Gila Isabel Al Chaaer (Case number 236/2011MLF) the company claimed that the employee abandoned the service of her employer prior to the lapse of the six-month period required by law and therefore had to refund those amounts paid during maternity leave.

The Court went into some detail on the requisites set out in article 36(20) for the employer to have a successful claim – namely that:

  1. the employee abandoned of the service by the employee;
  2. the employee so abandoned the service of the employer before the laps of six months from termination of maternity leave; and
  3. the employee did not have good and sufficient cause to do so.

On points (i) and (ii), the Court explained that these are objective criteria and stated that with respect to the former, there had to be circumstances of fact confirming the intent of the employee to withdraw from the employment contract. With respect to the latter, the Court (in quoting another judgement) held that the six month period was there to set-off, at least in part, those payments that were made during the period of maternity leave and to give some of the value of those payments back to the employer.

On the matter of good and sufficient cause, the Court (again quoting a previous judgement) stated that an employee may abandon employment if it is shown that good and sufficient cause exists. In this particular case, the Court decided that the parties had previously agreed to the terms of employment upon the employee’s return from maternity leave however it emerged that the employer, acting in bad faith, had tried to dishearten the employee from returning to work by employing someone else; not paying the employee her wages for those months worked after termination of maternity leave; and not renewing her work permit.

The Court felt that the employee could no longer trust her employer – one of the grounds which, in terms of Maltese law, would allow an employee to successfully claim unfair dismissal – and therefore agreed that there was good and sufficient cause in this particular case, accordingly no refund of wages was due by the employee. Despite the fact that the principle may appear to be a simple one, the determining factor in such cases would be the facts surrounding the case which may lead to a very different conclusion to that which appears on the face of the matter.

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