Opinion • February 29 2004

The Employment Commission is biased
The case instituted by Michael Fenech has egged on Dr Anna Mallia to state she is impressed with the Employment Commission which she accuses of bias and believes is setting landmarks which do not do it honour
In my opinion the Employment Commission is biased. It is also my opinion that the Employment Commission is not constituted according to law. The law governing the Employment Commission is the Constitution of Malta.

The bias
The recent decision of the Employment Commission is a case in point. Anyone who reads the judgment will notice that the decision was definitely based on bias and not on objectivity. In this case instituted by Michael Fenech the Commission established a number of landmarks namely: that the Commission had jurisdiction to decide cases where the complainant is illegally or irregularly employed; that the Employer must give good reasons to the employee for not confirming his appointment upon the lapse of the probationary period, something which the Employment Regulations Act does not require; that the employer is not justified in not confirming the appointment if the employee has a track record of absenteeism from work.
I have discussed this case with some of my colleagues and they all agree that this was one of the decisions where the bias is rampant. In fact one of them also pointed out that the labourite complainants were the least successful before this Commission: whether this was the result of poor workmanship from the labour lawyers or for other reasons nobody really knows. What we do know however, is that the unsuccessful complainant who wants to challenge the decision of the Commission has to file a writ of summons challenging that decision and the court fees for that case amount to Lm375.
On the other hand the unsuccessful government department or agency or board is being very selective as to whose case it chooses to challenge. For example, in the case instituted by Angela Callus, the government department did not feel that it should challenge that decision although most of it was based on hearsay. It seems that neither the fact that the final version of the judgment was changed overnight was enough for the government department to file a law suit challenging that decision.

But what is this Employment Commission?
The Constitution of Malta in section 120 states that there shall be an Employment Commission for Malta which shall consist of a chairman and four other members. The members are appointed by the President who appoints the chairman on the advice of the Prime Minister after he has consulted the Leader of the Opposition, and appoints two of the members on the advice of the Prime Minister and two on the advice of the Leader of the Opposition.
It is also curious to note that the Constitution states that no person shall be qualified to hold office as a member of the Employment Commission if he is a Minister, a Parliamentary Secretary, a member of, or a candidate for election to, the House of Representatives, a member of a local government authority, or if he is a public officer.
Michael Mallia, the chairman at present, is also chairman of the Public Broadcasting Services Company limited. It is true that the PBS is not a local government authority but it is also true that the PBS is fully owned by the government and it therefore falls under the definition of a government authority. The spirit of article 120(3) which was last amended in 1974 at a time when government-owned companies were not even conceived is clear: that no member of the Employment Commission can have any political appointment.

A Commission not legally
constituted
This is why I said in the introduction that I strongly believe that the Employment Commission is not legally constituted. Michael Mallia, who is also Chairman of PBS, cannot, not even if he tries hard enough be independent and impartial in the Employment Commission. Our Constitution envisaged this situation and wanted to spare people like Michael Mallia the dilemma any chairman would face if he is also acting as a member of a government authority. In the case of Michael Fenech, Michael Mallia went one step further: he did not have the decency to inform the parties that he sits with Michael Fenech on the same board at PBS and to ask them if they have any objections to him presiding the case.
I am surprised how the members recommended by the Leader of the Opposition were happy with the situation. Their absence was noted when the Employment Commission delivered its decision. But absence does not mean dissent. Although the Constitution does not provide for dissenting opinions, I strongly believe that any member of the Employment Commission or any other Commission should record his dissent and give reasons thereof. Otherwise that member will be endorsing the decisions of that Commission and will be an accomplice to it. It is also their duty to ensure that each member of the Commission is qualified to hold office as a member of the Employment Commission in the terms required by the Constitution.
In the case of Michael Fenech, Professor Godfrey Pirotta got the blame. That blame was not based on facts but on bias. People and students who know him know that he can never be branded as any politician’s buddy and neither do they believe the Employment Commission’s conclusion that he did not confirm Michael Fenech’s appointment because he is a nationalist. Justice with Godfrey was not done and I am sure that he will fight until his name is cleared from any political discrimination.
In the meantime, may I advise the Chairman to have a closer look at Section 120(3) of the Constitution of Malta, and I am sure that he will come to the same conclusion that he is not qualified to serve as member of the Employment Commission and resign.