The Employment and Industrial Relations Act (Chapter 452 of the Laws of Malta) defines discriminatory treatment in the employment sector as meaning any distinction, exclusion or restriction which is not justifiable in a democratic society, including an action or decision of discrimination made on the basis of a political opinion, among others. Furthermore, according to the basic legal principle of non-discrimination enshrined in the UN Universal Declaration of Human Rights,1 the Charter of Fundamental Rights of the European Union,2 and the Constitution of Malta,3 any employer has the vital duty to protect all its employees from any form of discrimination that may take place at work. They also hold the obligation to be an advocate for abolishing any acts of discrimination at the work place, and this includes political discrimination.
The Employment Commission – Its jurisdiction and powers
The role of the Employment Commission is delineated in the Employment Commission Act, Chapter 267 of the Laws of Malta. The Employment Commission ensures that, in respect of employment, no distinction, exclusion or preference that is not justifiable, in a democratic exclusion society is made or given in favour or against any person due to his political opinion. Its composition, as stated in article 120 of the Maltese Constitution, consists of a chairman and four (4) other members, appointed by the President of Malta in accordance with the advice of the Prime Minister. The Employment Commission has the jurisdiction to hear and determine all applications of employment, where an unjustified distinction, exclusion or preference was made to someone's prejudice, by reason of his political opinion.
The Employment Commission exercises its function and holds the same job as the First Hall, Civil Court4 and thus has the power to make any order, issue writs and give directions it may consider appropriate to enforce or secure the enforcement of the action of the applicant. Moreover, the Employment Commission may also order the employment, the refusal of employment and the termination of employment of any person, as well as instil new or amend any of the terms and conditions of that employment agreement, the employee's position or rank to be occupied and incidental matters thereto.5
Case Review of Mr Norman Vella versus the Government of Malta
The applicant, Norman Vella, was deployed to the National Broadcasting Company PBS in August 2012. However, it was further reported that a few months after the 2013 local general elections, he was redeployed to the Immigration Department, stationed at the Malta International Airport with the position of border control officer. For this reason, in October of the same year, Mr Vella instituted a complaint before the Employment Commission regarding this alleged unfair transfer, filed against the then Prime Minister, Joseph Muscat, and the former principal permanent secretary, Mario Cutajar. He claimed that this action and their decision of deployment to another role within a different department was tantamount to political discrimination.
On Wednesday 15th May, 2024, the Employment Commission ruled in favour of Mr Vella, declaring that Vella's redeployment from PBS to the Immigration Department was indeed politically discriminatory. The Employment Commission, chaired by Dr. Frank Testa, ordered the Government to pay compensation of fifteen thousand Euro (€15,000) plus interest to ex-presenter Mr Vella after finding proof of political discrimination in Vella's transfer only shortly after the 2013 general election. In its decision, the Commission said that this transfer resulted from political discrimination and, quoting the very definition of ‘discrimination' as per the Employment and Industrial Relations Act, was certainly “not justifiable in a democratic society”.
Concluding remarks
An employee should never be placed in a situation where he is at the receiving end of a discriminatory decision by their employer on the basis of underlying political motives. The law is extremely clear in this regard and the role of the Employment Commission is to guarantee exactly this.
Footnotes
1 Article 7 states that “All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.”
2 Article 21 on Non-discrimination reads that “Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited;
3 Article 45 (2) states that “No person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority.”
4 As per the Code of Organisation and Civil Procedure, Chapter 12 of the Laws of Malta;
5 Article 4 of the Employment Commission Act;
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.