A policy is a predetermined course of action, established to provide clear guidelines to staff on how the company operates. Along the years, policies have become an essential part of well-structured and professional organisations, as they provide, direction and guidelines for the day to day operations of the company, as well as, ensure compliance with laws, regulations and codes of practice. At the moment, Maltese laws do not oblige companies to incorporate policies as part of their operations. However, it is increasingly becoming a practice which is highly recommended by both lawyers and the Industrial Tribunal (‘Tribunal’).

Policies are equally beneficial for employers and employees, as they provide a consistent and uniform environment at the place of work, since they:-

• Clarify the standards (including behaviours, values etc) that are expected of employees, without solely relying on training;
• Reduce the level of discretion as to what constitutes proper conduct, which very often leads to conflict since employees and employers have different personal standards on various aspects;
• Give guidance for decision-making and add legitimacy to decisions taken;
• Provide streamlined internal processes which are mostly beneficial during a decision-making process since they offer an accepted method of dealing with complaints etc which help reduce claims of favouritism and or discrimination.

The incorporation of policies and procedures also reduces legal disputes and litigation since they act as a guide-book for the organisation. Policies provide knowledge for employees and assist employers in defending themselves in an unfair dismissal claim, liability claims etc. In the absence of policies and procedures, the adjudicating body will apply the ‘common person’ standard. To the contrary, in the eventuality that the company has a policy in place, which employers and employees are expected to adhere to, the adjudicating body would have the opportunity to look into what is expected of both parties and would assess the fairness of such policy especially since these rulebooks spell out fair and equitable treatment for the entire workforce on a range of work-life and management issues.

Some recommended policies/procedures are:

• Work Schedule/Timekeeping – do you implement flexi-time?
• Health Insurance/Benefits Policy
• Training/Education Policy
• Anti-Harassment and Bullying Policy
• Equal Treatment Policy
• Grievance and Disciplinary Policy
• Information Security Policy
• Health & Safety Policy
• Social Media Policy

Policies need to be provided and explained to new and existing employees to be effective; they are after all a communication tool between the employer and employees. Some companies maintain a technological means or other modes of internal communication to update employees on new policies or changes as an alternative to handbook printings, especially since policies should evolve, and grow with the company.

WHAT THE TRIBUNAL DECLARED

The need for effective workplace policies and procedures has never been more important, as they address the most pertinent issues at the place of work which issues would not have been addressed in any other medium. As a matter of fact, Maltese Courts and the Tribunal have recently expressed themselves on such importance, primarily in the case Emanuel Mifsud vs AX Hotels Operations Limited (2020).

In this case, the Tribunal noted that the defendant company did not have a sexual harassment policy in place, which would define sexual harassment and the consequences thereof. The Tribunal insisted that it was the employer’s responsibility to enact relevant policies to prevent harassment, sexual or otherwise at the place of work and went on to add that the absence of such policies reflected badly on the employer.

The Tribunal has also commented on the fact that an employer should not be too lenient and should have a disciplinary policy in place which establishes the procedure to be followed where there is need for disciplinary measures against employees.

In another case which dealt with sexual harassment (Doris Bonello vs General Soft Drinks (2010)) the Tribunal stated that it is good practice that the company had a Sexual Harassment Policy in place, however the policy and its contents should have been communicated better to the employees, especially to employees in the lower levels of employment who are more susceptible to harassment.

Another case of sexual harassment was that of Corissa Vella White vs. Betsson Services Limited (2016), whereby the Tribunal felt that the fact that there was a policy with respect to sexual harassment which was communicated to the employees, then this created an environment where employees would have felt comfortable to report sexual harassment.

Therefore concluding that in cases of sexual harassment it is vital for Companies to have a policy in place to demonstrate that they are in fact safeguarding the employees and their interest, and it is just as important that the polices are communicated to all employees.

In fact in Alastair Cuschieri vs Cateressence Limited and Oper8Malta Limited (2015), the Tribunal went a step further and declared that it was a lack from the company’s end that there was no written policy with respect to what can and what cannot be removed from Company premises. Such policy the Tribunal stated should be signed by all the employees.

In the case Judith Overand nee’ Attard Mccarthy vs Med Reef Company Limited (2015), the Tribunal scrutinized the company’s Internal Policy and Procedure Document, in particular, Article 8 ‘Discipline’. This article indicated clearly that the action of the employee was to be considered as a misconduct and therefore he should be dismissed immediately.  The following were included as examples, theft, assault and fraud and also nonperformance when the management of the company identifies that the performance of the employee is not satisfactory.

This case highlights the importance of an employer having policies in place in that, when there are policies in place, the Tribunal scrutinizes them and makes a decision after assessing the policies. As opposed to making a decision solely based on the facts of the case and whether the Tribunal thinks that the employer acted in a fair and reasonable manner since there were no policies guiding the disciplinary process.

Policies may form part of the employment contract but are more commonly provided to employees in the form of a handbook. It is the employer’s responsibility to ensure that every existing and new employee is given a policy manual and understands the regulations within that manual.

The above should be evidence enough of the fact that policies and procedures are important especially in the eventuality of a litigation/ dispute scenario and even to ensure fair and just treatment at the place of work.

For further information about how GVZH Advocates can help you with your employment law query, kindly contact us on [email protected].