Recommendations not implemented: Final Opinion on constructive dismissal of MCAST Principal and CEO

Recommendations not implemented: Final Opinion on constructive dismissal of MCAST Principal and CEO

Published October 15, 2024

In accordance with Article 22(4) of the Ombudsman Act, the Ombudsman and the Commissioner for Education have forwarded to the House of Representatives the Final Opinion on a case involving the Principal and CEO of the Malta College of Arts, Science, and Technology (MCAST). This case highlights serious concerns regarding constructive dismissal and the circumvention of the Employment and Industrial Relations Act, leading to a situation of maladministration, unfairness and arbitrariness.

The complaint

The complainant, who was the Principal and CEO of MCAST, lodged a complaint with the Office of the Ombudsman on 16th July 2024. He alleged that his impending dismissal, effective from the end of August 2024, was both unlawful and politically motivated. The complainant’s contract had been extended in March 2021 until 31st May 2026, and he contended that his dismissal prior to this date breached the terms of his contract.

Facts and findings

The investigation, initiated by the Commissioner for Education, revealed that the complainant’s impending dismissal was in breach of the provisions of sub-articles (1) and (2) of Article 22 of the Ombudsman Act in that it would undermine the notion of a definite contract of service under the Employment and Industrial Relations Act, as well as because no cogent reasons were given to the complainant for his dismissal ahead of the stipulated date of the end of the contract of service. The key findings, highlighted both in the Final Opinion and in the subsequent exchange with the Permanent Secretary at the Ministry responsible for Education (and which are being published), were:

• The Board of Governors, responsible for the appointment and extension of the complainant’s contract, acted within its legal remit when renewing the contract until 2026.
• No valid reason was provided by the Ministry of Education or its representatives to justify the termination of the complainant’s contract before the agreed-upon date.
• The Ministry’s claim that after a certain age public officers required the annual approval of the Ministry to remain in office undermined the main law governing employment.
• The education authorities failed to provide cogent reasons for the constructive dismissal of the complainant, relying on vague and irrelevant considerations in breach of Article 22(2) of the Ombudsman Act.

Conclusion and recommendation

The Commissioner concluded that the complainant’s forthcoming dismissal would amount to an act of maladministration. The education authorities’ failure to respect the decision of the MCAST Board of Governors and to subject the complainant’s contract of employment to an arbitrary condition of annual renewal breached the provisions of Article 22 of the Ombudsman Act. The Commissioner, therefore, recommended that the education authorities refrain from proceeding with the dismissal scheduled for 31st August 2024.

Outcome

On 2nd September, the Permanent Secretary of the Ministry for Education, Sport, Youth, Research and Innovation informed the Commissioner for Education that they did not agree with his conclusions and recommendation and would, therefore, proceed with the termination of the complainant’s employment. The Ombudsman and the Commissioner brought the case to the attention of the Prime Minister on 9th September 2024 and subsequently forwarded a report to the House of Representatives for its consideration.