Case Study on Lawful Letting Go

In industrial relations, it is critical that both the employer and employee act in good faith. While disagreements among colleagues are inevitable, especially in growing organisations where roles evolve, these must be managed through respectful communication and proper procedures. 

Jennifer Tonna vs IDEA Advisory Ltd – A Case Study

This case highlights the importance of maintaining good faith and proper conduct in the employment relationship, showing that even a highly valued employee cannot leverage their contributions to justify insubordination or ultimatums. It illustrates how the Industrial Tribunal assesses both the procedural and substantive fairness of dismissals, particularly in situations involving alleged constructive dismissal. 

Facts of the Case 

In the case of Jennifer Tonna vs IDEA Advisory Ltd decided by the Industrial Tribunal, on the 14th of November, 2023, the claimant was initially employed as a part-time employee with IDEA Advisory Ltd (the “Company”) on the 18th of October 2018 and was subsequently engaged on a full-time basis to manage the Company’s marketing strategy. As time passed, the Company began to expand, with the COVID-19 pandemic also presenting new opportunities that contributed to further growth, rise in operational demands and increased staffing.  

Consequently, the claimant’s workload increased significantly as she began taking on additional initiatives beyond what was originally expected of her, contributing significantly to the restructuring and diversification of the Company’s operations.. Discussions began between the claimant and the Company regarding a salary increase to reflect the broader and more demanding nature of her responsibilities, however no formal affirmation ever arose. The claimant explained that although over the following months, her responsibilities and workload steadily increased, requiring her to work long hours that were not reflected in her remuneration. 

The Claimant claimed that she repeatedly raised these concerns with her superior who at times promised either to reduce her workload or to increase her salary. However, the situation persisted for several months. She further noted that in July 2020, tensions escalated, prompting her to send an email stating that she would no longer accept tasks unrelated to marketing and sales. 

An agreement was reached whereby her responsibilities would be formalised upon the signing of a new contract, and her revised salary would be applied retroactively from the 1st of January, 2020. Nonetheless, she contended that her roles remained undefined, and the uncertainty and tension among the parties resumed. 

The Termination

On the 22nd of September 2020, she was called to a meeting with her superior and his wife, during which she was informed that her employment would be terminated. She was offered a payment of one thousand Euro (€1,000), any other entitlements due under law, and a positive reference letter. 

She alleged that a few days later, her employer informed her that in reality, there was a valid reason for her dismissal, though this was never disclosed to her. Subsequently, she sent a letter in an attempt to resolve the matter amicably out of court. However, this was not accepted, and she received a reply containing several accusations which, in her view, were taken out of context. 

Arguments presented by the Company  

In its response, the Company stated that it had valid grounds for terminating the Claimant’s employment on the 29th of September 2020. The Company also argued that the claimant’s reply to the accusations went further by stating that her position had become untenable, she no longer felt comfortable working with the Company, and that she would be resigning and pursuing the Company for constructive dismissal. The Company interpreted this as a form of blackmail, which it considered unacceptable. 

The Company recognized her contributions, and negotiations commenced for a new employment contract. While the claimant appreciated this gesture, disagreement arose as to the effective date of the new contract. The Company insisted it should take effect at the start of the new year, whereas the claimant believed it should become effective immediately upon agreement. Following this disagreement, the claimant began to exhibit retaliatory behaviour in various ways. When disciplinary proceedings were initiated by the Company, as would be expected in such circumstances, the claimant abruptly cut off any efforts at reconciliation or resolution that might have restored the employment relationship. 

Considerations of the Tribunal 

In reaching its decision, the Tribunal considered not only the act of termination itself but also the broader context leading up to it.  

It was evident that the claimant was committed to her job and took initiative to advance her role and the Company’s position. However, the Tribunal also found it understandable that, with expansion of a team or department within a Company setting, the workload and responsibilities also increased, particularly for those like the claimant who were central to the company’s operations. 

The Tribunal observed that the claimant had a genuine interest in helping the Company grow and introduced new structures to facilitate this. She herself insisted on having more work and responsibility, just as other employees’ roles evolved over time. Naturally, such developments create expectations of greater remuneration or compensation aligned with the new tasks. The Tribunal however acknowledged that while changes in job duties may not always reflect increased volume, they might still demand higher responsibility, justifying improved pay and benefits. 

The Company recognized this and had nearly concluded a new employment contract with the claimant. The only sticking point was when the new contract would take effect. It was at this stage that the claimant began to act in defiance, clearly expressing that she expected the revised package to be implemented immediately.  

The Tribunal also noted the fact that the Company moreover explained that the salary increases were not exclusive to the claimant but were to be applied uniformly across the workforce at the turn of the year. Therefore, since the dismissal occurred at the end of September, the Tribunal understood that the increase would have taken place approximately three months later.  

Dismissal based on gross misconduct 

According to jurisprudence on the matter, as in the case of Brewster v. Burke and the Ministry for Labour (1985), the Supreme Court of Ireland established that even a single act of insubordination where an employee “wilfully disobeys the lawful and reasonable instructions of his master” could amount to gross misconduct, justifying the dismissal of an employee.  

In this case, the Court also stated that an employee effectively resigns when they intentionally refuse to follow a lawful order from their employer. Moreover, in Selwyn’s Law of Employment, reference is made to the case of Clarkson v. Brown, Muff & Co Ltd (1974), which further consolidated the principle that “gross misconduct was defined as being dishonesty, arson, violence, obscenity, neglect and insubordination.” (Selwyn; 22nd Edition; Para 12.53) 

In this context, the Industrial Tribunal considered the claimant’s actions as a clear case of insubordination, amounting to gross misconduct. However, the Tribunal went on to explain that although the claimant admirably invested significant energy to help the Company grow and improve, an employee cannot take advantage of a situation they themselves helped create. No matter how noble the goal may be, it cannot be used to justify improper conduct. 

The Tribunal observed that once the claimant established herself as a cornerstone of the Company’s operations, she sought to leverage her position for personal gain. While that is not inherently objectionable and even commendable, the problem lay in how she behaved once she believed she was indispensable.  

The Company negotiated a contract that was favourable even for the claimant, but it could not ignore the rest of the workforce and risk serious discord by granting a salary raise to just one employee. Faced with this situation, the claimant openly stated she was on strike and refused to cooperate or perform her duties. This triggered the Company’s necessity for pursuing disciplinary process. The claimant appeared to overlook the fact that, notwithstanding the trust placed in her, the relationship fundamentally remained one of employer and employee. 

No constructive dismissal 

A claim for constructive dismissal arises when an employee feels there is no other option but to leave due to unbearable working conditions, even without formal termination. However, in this case, the claimant seemed to weaponize this legal remedy, not because she had no alternative, but to threaten the employer. She even went as far as writing that unless she was dismissed, she would claim constructive dismissal and pursue a case before the Industrial Tribunal. 

The fact that she not only considered this but also initiated it in writing confirmed the defiant and insubordinate nature of her behaviour. Therefore, the Tribunal concluded that in this particular case, the Company was fully justified in terminating the claimant’s employment. The Tribunal held that the termination was not only procedurally correct but also substantively fair in light of the conduct exhibited by the claimant in the final stages of her employment. 

Although the claimant had made meaningful contributions to the Company and had shown commitment and initiative in the earlier stages of her tenure, these factors could not excuse her later conduct. Her behaviour amounted to a serious breakdown of trust in the employment relationship. The employer, who had shown willingness to improve the claimant’s conditions and who had engaged in sincere negotiations toward a better package, was met with ultimatums and defiance instead of dialogue and compromise. 

Decision of the Tribunal 

The Tribunal found that the claimant had fundamentally undermined the principle of good faith which exist in an employment relationship, by: 

• choosing to unilaterally withdraw her cooperation; 

• threatening to claim constructive dismissal unless dismissed outright; and  

• refusing to engage meaningfully in the disciplinary process. 

Furthermore, the Tribunal noted that disciplinary measures taken by the employer were not arbitrary or malicious but stemmed from legitimate managerial concerns. The claimant was given a fair opportunity to explain and justify her position, and her refusal to engage constructively left the Company with no reasonable option but to terminate the relationship. The Tribunal clearly reaffirmed that no matter how valuable or trusted an employee may be, this does not give rise to autonomy beyond the employer’s legitimate managerial authority. 

In conclusion, the Tribunal declared that the dismissal of the claimant was not unfair within the meaning of Article 75 of CAP.452 of the laws of Malta. Accordingly, the claimant’s request for compensation was rejected in its entirety. 

How Can AE Help  

At AE, we support employers in handling workplace matters with fairness and compliance. Our team provides practical guidance on disciplinary procedures, contract reviews and employee relations to ensure decisions align with Maltese employment law.

We also assist with drafting policies, managing disputes before the Industrial Tribunal and promoting good faith between employers and staff. With AE’s support, you can act confidently and protect your organisation’s interests while maintaining a professional workplace.