Constructive dismissal needs the employee to resign
The Court of Appeal held that a coach who stopped turning up, without resigning and without any notice of termination, was not dismissed. He could not claim half his wages for the rest of his fixed-term contract, only two months of unpaid wages.
On 13 January 2026 the Court of Appeal held that an employee on a fixed-term contract who stopped coming to work was neither dismissed nor constructively dismissed. Without a dismissal, the half-wages remedy in article 36(11) of the Employment and Industrial Relations Act (Chapter 452 of the Laws of Malta) did not arise. Chief Justice Mark Chetcuti, Mr Justice Robert G. Mangion and Madam Justice Simone Grech dismissed the appeal on that point and corrected only the unpaid wages.
The facts
In V.N. vs St. Andrew'S Football Club, the club engaged the plaintiff in October 2016 as a full-time assistant coach of its senior team. The contract ran for 32 months at €1,800 net a month. It required him to earn his coaching badges from the Malta Football Association, UEFA and FIFA as early as the courses allowed.
In summer 2017 the head coach left by agreement. The plaintiff still had no licence, so the club engaged a new head coach and a new assistant. By September 2017 the plaintiff no longer came to training.
He argued that a club official told him his role was no longer needed. The club's president testified that no one dismissed him and that he was offered office or youth-section work at similar pay until he obtained the licence, which the plaintiff denied. He sued for arrears and damages, and later sought half his wages for the rest of the contract under article 36(11).
The First Hall of the Civil Court awarded him €3,400 in wages for July and August 2017 and rejected the rest. Part of its reasoning was that no redundancy had been shown.
What the court held
The Court of Appeal accepted that the first court was wrong to treat the case as one of redundancy, since the plaintiff never raised it. That error did not change the result. The evidence conflicted, but the court held that one thing was certain: “la kien hemm terminazzjoni da parti tal-Klabb, u lanqas ma kien hemm riżenja da parti tal-attur” (there was neither a termination by the club nor a resignation by the plaintiff).
The club never issued a notice of termination. The official said to have told the plaintiff that his role had ended testified that he did not know why the plaintiff left.
The plaintiff argued on appeal that this was a textbook case of constructive dismissal. The court noted that he had raised it neither in his sworn application nor in his written submissions. It held that constructive dismissal requires circumstances in which the employee is forced to resign because the employer has breached the contract of employment.
The court took the elements from an Industrial Tribunal decision the plaintiff himself cited. There must be a clear breach by the employer, express or implied; the breach must be serious enough to justify resignation; and the employee must resign because of it, without long delay.
It also relied on an English textbook on industrial law. In practice, the employee takes the final step by resigning and walking out, which shows that he has accepted the employer's repudiation as ending the contract.
The plaintiff never sent a letter of resignation. He did not try to negotiate with the club and instead stopped turning up. The court held that he could not argue that he resigned because he had no other way out, so his claim built on a termination at the end of August 2017 failed.
On arrears, bank statements showed eight payments totalling €14,500. The court agreed that he was owed two months, July and August 2017, because there was no proof that he worked into September.
The court corrected the arithmetic. He had been overpaid €100 in all, not €200, because one payment in April 2017 was €100 short. It raised the award to €3,500 and ordered him to pay the costs of the appeal.
Why it matters
An employee who believes the employer has pushed them out must resign, and should do so promptly and in writing. Walking away without a word leaves no dismissal and no claim to half wages under article 36(11). A claim of constructive dismissal should be pleaded from the start, with evidence of the employer's breach.
Where it sits
Article 36(11) gives an employee on a fixed-term contract who is dismissed before the term ends half the wages for the remaining period. Constructive dismissal treats a resignation as a dismissal when the employer's breach forced it. The judgment under appeal also set out the rule that no employment ends until the termination is communicated to the employee by the employer or by someone acting on its instructions.
The Court of Appeal relied on the Industrial Tribunal (28 September 2023) for the elements of constructive dismissal. The first-instance judgment it reviewed had cited the Court of Magistrates (26 September 2022) and the Court of Appeal (Inferior Jurisdiction) (28 May 2008) on redundancy, together with English decisions of 1997 and 1999, the later one from the House of Lords.
Source
Court of Appeal (Superior Jurisdiction), 773/2018/1, 13 January 2026.