Fathimath Maleeha Jamal, an employee of the Bank of Maldives Plc, travelled to Colombo, Sri Lanka to attend a training programme on behalf of the Bank. The training program was from 13 August 2010 to 17 August 2010. Maleeha was joined by two of her colleagues from the Bank.1
- Fathimath Maleeha Jamal, an employee of the Bank of Maldives Plc, travelled to Colombo, Sri Lanka to attend a training programme on behalf of the Bank. The training program was from 13 August 2010 to 17 August 2010. Maleeha was joined by two of her colleagues from the Bank.
- Accommodation expenses of participating employees of BML were covered by the Bank on a reimbursement basis. Upon returning to the Maldives, Maleeha sent an email to the Bank on 29 August 2012 informing the Bank that in addition to her own accommodation expenses, she had also covered the accommodation expenses of the other two participating employees of the Bank and claimed a reimbursement of USD 5,880 as the total accommodation expenses for the three employees of the Bank. Prior to this email, Maleeha had also emailed the Bank on 16 August 2012 requesting the Bank to increase the cap on her credit card limit so that she can pay the accommodation expenses for all 3 participating employees of the Bank.
- The Bank, however, responded to Maleeha’s reimbursement claim informing her that she was only entitled to claim the amount she spent on her own accommodation expenses which was USD 2,237.28. Following a review and additional queries by the Bank’s internal audit department, Maleeha provided additional information that was requested by the Bank.
- The Bank, after reviewing the information presented to them, issued a ‘final warning’ letter to Maleeha on 24 March 2013 and took disciplinary actions against her by withholding her annual salary increment, promotion and bonus. The Bank informed Maleeha that, even though Maleeha claimed a full reimbursement for the invoices she submitted to the Bank, her two colleagues that joined her on the training programme had settled part of their invoices.
- The Bank was of the view that Maleeha provided the Bank with false information which was a violation of the Employment Act2 and the Bank’s disciplinary and grievance procedure that formed part of the employment contract Maleeha had with the Bank.
- Maleeha appealed the final warning issued by the Bank on 26 March 2013. After review, the Bank notified Maleeha on 30 March 2013 that they upheld their decision.
- Following this, the Bank issued a show cause letter to Maleeha on 5 June 2013, informing her that she had been suspended and that there were serious discrepancies in the information provided by her with respect to her accommodation expense claim. Though Maleeha reverted to the Bank with information to support her claim, on 24 June 2013 the Bank dismissed Maleeha without notice pursuant to Section 23 of the Employment Act, on the grounds that she provided false information to the Bank.
- Maleeha filed a petition with the Employment Tribunal claiming that her dismissal is in violation of the Employment Act and the Bank’s disciplinary and grievance procedure. In her prayers for relief, Maleeha requested the Tribunal to order the Bank to reinstate her position with the Bank and grant her damages in the amount of MVR 2,200,000.
- The Tribunal, in their decision, held that additional disciplinary action must only be taken if the employee does something that can amount to additional misconduct. The Tribunal opined that it was injudicious to take additional disciplinary actions against the employee in the absence of any additional misconduct. Rendering its decision that Maleeha was dismissed without sufficient cause and in contravention of the Employment Act, the Tribunal ordered the Bank to reinstate Maleeha to her previous or re-engage her in a position that is comparable to the position she was employed at before dismissal, and awarded back pay from the date of termination. The Tribunal, however, did not grant the amount sought as compensatory damages.
- When the Bank appealed the decision of the Employment Tribunal at the High Court, the justices of the High Court unanimously upheld the decision of the Tribunal. Further, the Court observed that Maleeha appealed the ‘final warning’ issued by the Bank, in accordance with step 5 of the Bank’s disciplinary and grievance procedure. The Court opined that, when Maleeha appealed the disciplinary actions taken against her, the Bank had already decided to uphold the initial disciplinary actions that the Bank took against Maleeha for the alleged misconduct, and so the decision of the Bank to terminate Maleeha’s employment following her appeal contravenes the legal principle – prohibition of reformation in peius – and violates step 5 of the Bank’s disciplinary and grievance procedure.
Does the alleged misconduct of the employee amount to gross-misconduct warranting summary dismissal under Section 23 of the Employment Act?
Unanimously dismissing the appeal, the justices of the Supreme Court held that:
- Although the Bank has met the procedural fairness requirements in dismissing Maleeha, the Bank had failed to meet substantive fairness requirements in dismissing Maleeha as there is no legal principle that permits an employer to take additional disciplinary action on the same misconduct that disciplinary action was previously taken on; and
- A reinstatement order is suitable to be made in this case as the Court not making such an order could be perceived as approving the improper actions of the Bank in dismissing Maleeha; and
- The principle of prohibition of reformation in peius is not applicable to appeals made by employees appealing disciplinary actions taken by employers.
- The Bank failed to establish substantive fairness in dismissing Maleeha, as the alleged misconduct did not amount to gross-misconduct that warrants dismissal without notice. Further, the Court opined that as the Bank had already given Maleeha a final warning and decided it to be the final decision of the Bank on the complained misconduct – the reimbursement claim filed by Maleeha with respect to the training programme in Sri Lanka and the alleged false information provided by Maleeha to the Bank, the Bank cannot dismiss Maleeha on the same misconduct as there is no legal principle that permits an employer to take another disciplinary action on the same misconduct that disciplinary action was previously taken on.
- Factors that will be taken into consideration when determining whether reinstatement is practically impossible include: (a) whether there has been an irrevocable breakdown of trust and confidence between the employer and employee, (b) the time elapsed between the date of termination and the date on which reinstatement order is made; (c) the size of the employer’s business; (d) where and (e) whether as a result of a fall in the business of the employer or a significant change to the employer’s business reinstatement is appropriate. Further, circumstances that will render a reinstatement order as the appropriate remedy include: (a) the complained misconduct of the employee being first such misconduct on the part of the employee and so the appropriate disciplinary action would have been giving the employee a warning rather than dismissing the employee, and (b) where a failure to make a reinstatement order could be perceived as approval of improper actions of the employer in dismissing the employee.
- Article 56 of the Constitution is not applicable to internal disciplinary procedures of employers and so the principle of prohibition of reformation in peius is not applicable to the appeal processes that form part of the employer’s disciplinary and grievance procedures.