The Need For A Disciplinary Policy "In Black And White"

Besides having exclusive competence to hear and decide on other matters falling under article 75 (1) of the Employment and Industrial Relations Act (CAP 452), “EIRA”, the Industrial Tribunal has exclusive jurisdiction to consider and decide all cases of alleged unfair dismissals of employees from employment. In relation to dismissals, in recent years, the Industrial Tribunal has underlined a point that may seem simple but is of great consequence; workplaces must have a clear, written and consistently applied disciplinary policy which shall be accessible to every employee at the workplace. In its decision (Decision Number 3044), Maryanne Vella V. Da Vinci Healthcare Ltd, concerning the dismissal of a senior nurse from a private healthcare provider, the Tribunal remarked:

“Huwa propju għalhekk tajjeb u ġust u ta' serħan il-moħħ kemm għall-impjegat u sew għal min iħaddem jekk ikun hemm stabbilit proċess ta' dixxiplina iswed fuq l-abjad u jiġi segwit.”

Translated, this means: “It is precisely for this reason that it is good, fair, and reassuring both for the employee and for the employer if there is a disciplinary process laid down in black and white and it is followed.”

This observation cuts to the heart of the dispute. While the case actually related to the question as to whether the employee's dismissal was justified in light of a workplace incident, the Tribunal's reflection points to a more fundamental issue centring around the idea that the absence of a transparent and documented disciplinary process often leads to misunderstandings, mistrust, and finally, litigation.

The Case in Context

The dispute arose when a senior nurse, employed as Head Nurse and Theatre Manager at Da Vinci, was dismissed following a clash over whether a scheduled surgical procedure should proceed before the official COVID-19 test result of a patient was determined. The nurse insisted that, in line with internal and national protocols, surgery could only go ahead once the official written result was in hand. The employer took the view that in her reactions, the employee was insubordinate, obstructive, and disruptive in refusing to accept assurances given by an anaesthetist who had obtained informal confirmation of a negative result.

The employee was subsequently asked to resign, suspended, and then dismissed. Crucially, throughout this sequence of events, she was never given written warnings, nor was she subjected to a formal disciplinary procedure. The employer relied on verbal reprimands and claimed that her conduct was unacceptable.

The Tribunal, in examining the evidence, noted that the dismissal came about without being backed up by a structure outlining a clear and due process. The absence of written warnings or a documented disciplinary pathway made it difficult to show that the decision was proportionate, or that the employee had been given a fair opportunity to respond.

The Tribunal's Underlying Message

 The Tribunal's choice of phrase “iswed fuq l-abjad” (“in black and white”) is not incidental. It is a pointed reminder that employment obligations should not be left vague, unwritten, or dependent on personal memory or wide discretion.

Too often, especially in small and medium-sized or micro enterprises, disciplinary matters are handled informally. Verbal warnings are given, chats replace proper hearings, and expectations are assumed rather than written down. While this might seem convenient and fast, it creates fertile ground for contestations and disputes.

When conflicts escalate to the Tribunal, the absence of a clear policy leaves the employer on shaky ground. As the Maryanne Vella case shows, even when an employee's conduct reflects badly on the employee's own character and work ethic, and is dubious in its own right, the Tribunal is unlikely to uphold a dismissal if the process was opaque, undocumented, or inconsistent or rather, all the three.

Why a Written Disciplinary Policy Matters

The Tribunal's words remind us that disciplinary policies serve as more than legal technicalities. They are the framework that guarantees fairness, clarity, and balance in the employment relationship.

Fairness to Employees

Employees are entitled to know where they stand within their employment relationship. A written disciplinary policy sets out what constitutes misconduct, degrees of misconduct, informal and formal channels of communication, how allegations will be investigated, right of representation, the hearing process, what sanctions may follow, and what rights of appeal exist. Without this clarity, employees may feel unfairly targeted or excluded from defending themselves.

Protection for Employers

Employers also do stand to benefit from having a transparent process in place as it shields them from accusations of arbitrariness. When a disciplinary process is properly followed step by step and in accordance with the written, accessible policy it provides documentary proof that the dismissal (if it comes to that) was based on clear, proportionate reasoning.

Predictability and Consistency

A written procedure ensures that like cases are treated alike, that is, incidents of a like nature are treated indiscriminately. This consistency strengthens trust among staff and avoids claims of favouritism or bias. It also reassures management that their actions are aligned with legal expectations.

Legal Compliance

Under Maltese law, as under widely recognised principles of labour law, including in EU jurisdictions, dismissals must be justified and the employees being dismissed have undergone a procedurally fair process. A failure to follow a disciplinary process can render a dismissal as being unjust even where the underlying conduct might have merited serious sanctions, including the ultimate sanction being dismissal.

Broader Reflections

This judgment speaks to a wider cultural issue in Maltese workplaces. Many employers still view disciplinary policies as bureaucratic burdens and unnecessary costs rather than as tools of good governance. Yet the reality is that discipline is not about punishment; it is about a solid structure, communication, and ultimately, mutual respect essential for an employment relationship.

Thus, a robust disciplinary policy:

• Prevents conflicts from spiralling out of control;
• Encourages corrective action rather than immediate dismissal;
• Protects health and safety standards, especially in sensitive sectors such as healthcare;
• Demonstrates organisational maturity, particularly in environments where professionalism and trust are paramount.

The pandemic context of this case adds a further layer. Employees, especially those in health services, faced extraordinary pressures and responsibilities. The employee's insistence on following strict COVID-19 protocols, was arguably motivated by patient safety rather than defiance. To this end, a clear disciplinary process would have clarified whether her intentions would fall under ‘misconduct' it would have weighed responsibilities, and surely, would have resolved matters more constructively away from judicial proceedings.

The Tribunal's reminder is not only relevant to the case at hand, or to specific cases, but it highlights a principle of wider application. There are compelling reasons why every workplace, irrespective of its size or industry, should adopt a disciplinary policy that is clear, written, consistently applied and based on general principles of law.

First and foremost is the principle of legal certainty. Employment law does not stop at requiring that dismissals be substantively justified; it also demands that the process leading to them be fair and transparent. A written policy sets out in advance the rights and obligations of both parties, avoiding the ambiguities and disputes that inevitably arise when reliance is placed on unwritten rules, unilateral decisions or shifting expectations.

Equally important is the protection from arbitrary decision making. In the absence of a policy written down in black and white, disciplinary measures risk appearing personal or selective. An employer who acts informally leaves themselves open to accusations of bias, while the employee may understandably feel singled out. A documented process provides both sides with a framework that is impartial, balanced, and predictable.

A written procedure also guarantees consistency and equality of treatment. Justice demands that like cases be treated alike, and a policy ensures that the standards applied to a junior clerk are no different from those applied to a senior manager. Such uniformity not only prevents claims of discrimination but also strengthens the bonds of trust within the organisation.

The evidential aspect cannot be overlooked. When matters escalate to the Tribunal, what is decisive is often not what was said, but what can be proven. Employers who cannot produce written communications such as warnings, minutes of hearings, or records of hearings and appeals will find their position gravely weakened. A disciplinary framework creates a documentary trail that demonstrates the employer acted reasonably and proportionately at every stage.

It must also be remembered that discipline is not meant to be punitive from the outset. The essence of a sound policy is correction, not punishment. Many issues can be resolved at an early stage, saving both the employment relationship and the morale of the workforce within a healthy environment.

Beyond the purely legal and procedural, there is the matter of organisational reputation. In the modern workplace, employers are judged not only before tribunals but also in the court of public opinion. A transparent policy signals professionalism, respect, and good governance. This is particularly vital in sectors where public trust is paramount, such as healthcare, education, and financial services.

There is also a risk management dimension. Litigation is expensive and disruptive, yet it could be avoided. A clear disciplinary process is one of the simplest safeguards an employer can put in place. When the rules are set down and followed, the likelihood of losing an unfair dismissal claim is drastically reduced.

A further benefit is the positive impact on employee morale and productivity. Staff feel secure when they know that rules are applied fairly and consistently. In contrast, workplaces without clear procedures tend to foster suspicion, gossip, and anxiety, all of which undermine effectiveness. A transparent framework provides reassurance and stability, allowing employees to focus on their work rather than on workplace politics.

The Maltese context makes this need all the more pressing. In view of the size of the majority of businesses in Malta, many of which still operate in a highly informal manner, assuming that staff know the system. Yet such assumptions unravel and are brought under scrutiny when disputes arise. The Tribunal's phrase “iswed fuq l-abjad” is therefore a cultural wakeup call: it is not enough to rely on memory or goodwill; policies must be explicit and accessible.

Finally, it is worth noting that this is not simply a local expectation but part of international best practice. In the United Kingdom, for example, the ACAS Code of Practice requires disciplinary and grievance procedures to be written and consistently applied. At European level, directives emphasise the right of workers to be informed in writing about essential aspects of their employment. Malta, as part of this framework, is bound to uphold similar standards.

Practical Guidance for Employers

For employers, the steps to take are as follows:

1. Draft a Written Policy: Ensure that your organisation has a clear, accessible disciplinary policy. This should be circulated to all employees (email or on a notice board, depending on the enterprise and its activity);
2. Follow the Process: Do not treat the policy as a formality. Every step, that is, communication, investigation, hearing, penalties, appeal should be documented and followed consistently;
3. Train Managers: Immediate supervisors must understand how to apply the policy fairly. Inconsistency at managerial level is one of the main causes of disputes;
4. Keep Records: Subject to any data retention policy which is in place, document every stage of the process. Written warnings, meeting notes, and employee responses form the evidence base which protects both sides;
5. Encourage Dialogue: A disciplinary process should be more about resolution than a struggle leading to litigation. By engaging openly with employees, many issues can be corrected before they become irreparable.

Conclusion

The Industrial Tribunal's reminder is simple yet telling. Discipline must be written down, clear, and consistently applied.

This is not mere legal pedantry. It is a cornerstone of fairness, safeguarding the dignity of employees and the legitimacy of employers' decisions.

For employees, it offers reassurance that they will be heard and treated justly.

For employers, it provides a shield against costly and reputationally damaging disputes.

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.