The €18,750 Cigarette: Why Process is Just as Important as the 'Crime'

It sounds like a scenario from a movie: A First Officer is caught smoking in the nosewheel well of an aircraft. It is a grave safety violation, a breach of aviation regulations, and a clear contravention of company policy. When confronted, the employee admits to the incident and states he has no defence.

For any HR Manager, this looks like the textbook definition of a "slam-dunk" summary dismissal. Gross misconduct? Check. Admission of guilt? Check. Safety risk? Check.

However, in the recent Industrial Tribunal decision of Dennis Voortman vs. VistaJet Limited (Decision No. 3121), the company found itself ordering a payout of €18,750 to the dismissed employee.

Why? Because of a single procedural oversight in the final dismissal letter.

The Case at a Glance

• The Incident: The employee, a pilot, was caught smoking in a hazardous area of the aircraft. The Tribunal acknowledged this was an "extremely grave safety violation".

• The Investigation: The company followed many of the correct steps. They held a disciplinary meeting, and the employee admitted to the charges.

• The Fatal Flaw: The company’s own Disciplinary Procedure Handbook explicitly stated that any dismissal letter must include details on the employee's right to appeal and to whom that appeal should be addressed. The final letter issued to Mr. Voortman failed to include this specific information.

The Tribunal's Verdict

The Tribunal ruled that despite the validity of the gross misconduct, the dismissal was legally unfair due to the breach of procedural justice.

The decision highlighted a critical principle in Maltese employment law: Due process is fundamental. The right to appeal is not just a formality; it is a substantive right that allows an employee to plead for a lesser sanction (mitigation), even if the facts of the offence are undisputed. By failing to offer this route, as promised in their own handbook, the company denied the employee his full rights.

3 Critical Takeaways for HR Managers in Malta

1. Your Handbook is Binding

If your policy says you will do X, Y, and Z, you must do all three. In this case, the employer failed at the very last hurdle. Tribunals will hold you to the standards you set for yourself. If your handbook requires an appeal clause, its omission is fatal to the validity of the process.

2. Admission of Guilt ≠ Waiver of Rights

Just because an employee admits to the wrongdoing does not mean you can skip procedural steps. The Tribunal emphasised that the opportunity to appeal (even for mitigation purposes) is a cornerstone of natural justice.

3. The "Last Mile" is the Most Dangerous

Investigations often consume huge amounts of energy, but the administrative finale (the drafting of the dismissal letter) is where many cases fall apart. A template that is outdated or a clause that is copy-pasted incorrectly can cost your business thousands.

How Ten Yards Legal Can Help

This case serves as an expensive reminder that substance does not override procedure. At Ten Yards Legal, we specialise in Maltese employment law and helping businesses bulletproof their HR practices.

We can help you:

• Audit your Company Handbooks to ensure they are compliant and practical.

• Review your Disciplinary Templates to ensure no critical "right to appeal" clauses are missing.

• Train your HR Teams on the nuances of procedural fairness to avoid these costly technical pitfalls.

Don't let a procedural technicality ground your business.

Disclaimer: This article is for information purposes only and does not constitute legal advice. Consult with a qualified professional for specific guidance.