LIVING LAW MAGAZINE ISSUE 2

ISSUE 02 MAY 2014

FAMILY HUMAN RIGHTS BUSINESS THE EU & MORE

Decision time

Contents 4

Employment Before the Chop

8

Police The Police Emergency Rapid Response Service

11

Human Rights PHROM

12

Family Realities of Divorce

14

Interview MEP’s Battle it out

22

European Union A snapshot of the European Parliament

26

Crime The Impact of Economic Crime on Society

28

Non-Profit Fighting Elder Abuse

31

Film Review Runaway Jury

32

Business Is your Business Compliant?

34

Lifestyle Life is for Living

36

The Law is an Ass Rights on Paper - but are they accessible?

38

Parliament The Whistleblower Act

40

Ombudsman Compensation for a Disability

42

Vox Pop Dress to impress

LIVING LAW is owned and produced by Dr. Roselyn Borg Knight & Dr. Roberta Lepre Editors: Dr. Roberta Lepre & Dr. Roselyn Borg Knight Email: editors@livinglawmagazine.com Advertising Manager: Marie Claire Bugeja Email: mcbugeja@independent.com.mt | Tel: 21345888 ext 149 Design & Art Direction: Faye Paris Photography of Editors: Luke Engerer No part of this magazine may be reproduced without the written consent of the publisher. This publication is for information purposes and is not intended to provide legal advice. Readers should not act, or refrain from acting, based on any information contained in this publication. Readers should not rely on information provided herein as legal advice for any purpose, and should always seek the legal advice of competent counsel in the relevant jurisdiction.

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Letter from the Editors

elcome to this special edition of Living Law! After many weeks getting over various hurdles which came along following the launch of this publication, we are more than happy to finally bring you this MEP elections online special edition! Our cover feature in fact revolves around this theme, and we have asked some of the aspiring MEP candidates to highlight their best assets. We also noticed that many politicians, both in Malta and in Europe at large, are lawyers, and therefore the feature also puts the spotlight on this aspect. Furthermore, we have included some information which explains the functions of the European Parliament and how its work impacts our daily life.

This issue is however also jam-packed with all of its other ‘regular’ sections – from issues concerning family breakdown, to business considerations, workplace issues and crime – take your pick!

We do hope that you enjoy this edition of LivingLaw, and we look forward to receiving further feedback on the topics that you would like us to cover.

We thank you for your overwhelming support, and hope that you enjoy reading!

ON COVER MEP CANDIDATES Marlene Mizzi Arnold Cassola Helga Ellul

Roselyn Borg Knight & Roberta Lepre

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EMPLOYMENT

Before the

Chop AN EMPLOYER, OUTSIDE OF THE PROBATIONARY PERIOD, CAN GENERALLY TERMINATE IN ONE OF TWO CIRCUMSTANCES: IN A REDUNDANCY SITUATION OR SUMMARILY FOR CAUSE.

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EMPLOYMENT

he most fraught aspect of the employment relationship, pretty much like every other relationship, is when it comes to be severed. When starting out life together, the employer and the employee are all sweetness and light, the world is their oyster and nothing in the way of black clouds is even imaginable When it’s time to call it quits, for whatever reason, things don’t smell as sweet, not by a long chalk, and if a prudent employer wants to avoid an unpleasant situation becoming even less pleasant, there are a few basic principles to be borne in mind.

An employer, outside of the probationary period, can generally terminate in one of two circumstances: in a redundancy situation or summarily for cause.

During probation, it bears saying a thousand times, an employer is entitled not to give a reason for termination and would be stupid to give one, because at some point probably in the not-too distant future, the Industrial Tribunal is going is going to find that the employer who was dumb enough to give a reason for termination during probation should be deemed to have waived the right not to and no-one really wants this to happen. In any case, termination during probation should also be approached with a great degree of circumspection if the employee is pregnant or has just given birth or is suffering from an industrial injury or disease: there is protection in place for these circumstances.

Redundancy, in Malta and as the law stands, operates on a last-in first-out within the affected category basis, which might at some stage be found to be discriminatory on the grounds of age but that’s how the law stands today. An employer may resort to redundancy if there are financial reasons that justify it or if a situation of structural

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EMPLOYMENT

EMPLOYMENT

over-employment exists (more employees than are required to achieve the commercial objectives) and there are provisions in the law relating to collective redundancy, mandating a consultation process during which termination may not be given effect, though notice of termination may be given.

Redundancy can be defined, to an extent, as a no-fault situation and as long as the applicable parameters are in place and procedures, the employer should be safe from any come-backs. This is not to be taken as counselling dressing up a dismissal for cause as redundancy, as this is a tactic that is guaranteed to bite the employer very seriously The area of law relating to termination of employment that is the most fertile for litigation, for obvious reasons, is the one that covers dismissal for cause, sometimes called for disciplinary reasons or, plain and simple “firing someone”, pointing at the door and inviting the employee to be careful it doesn’t hit him on the way out or words to that effect.

There have been attempts to define the constituent elements of a dismissal for cause that would stand up in the Industrial Tribunal, but most of the results have been circular or self-referencing to the extent that their usefulness is not particularly impressive.

Something like “an act or omission attributable to the employee that renders continued employment unfeasible” is sometimes given as a suitable definition, and it’s good as far as it goes, which isn’t all that far.

One would have to factor in wording about having given the employee an appropriate opportunity to state his or her position on the issues on which the employer is relying (“the right to a fair hearing”) and stuff about warnings being unnecessary if the act or omission is serious enough, and quite clearly, this makes the definition unwieldy in the extreme, so it’s best to bear in mind

all the factors mentioned without trying to be too scientific about it.

It would be appropriate to list just a few horror stories to give the reader food for thought, to concentrate the mind, as it were, before sending someone packing.

A bank employee convicted for serious drug-dealing had his dismissal overturned by the Industrial Tribunal and he was reinstated, because the employer failed to give a fair hearing. Luckily the Court of Appeal reversed the Tribunal on this. An airport employee was given reinstatement even though he was convicted for pulling a bomb-threat on 9/11 (the actual day) because the Tribunal came to the conclusion that a fair hearing was not given, even though the company concerned argued that it had done all it was required to do under the applicable Collective Agreement.

It used to be the case that theft, however trivial, was pretty good grounds for dismissal, but the

Tribunal has lately ordered compensation when it perceived the theft not to be serious enough to warrant dismissal. A bank employee who was found to have forged bank documents to his own advantage was reinstated because the Tribunal found the matter to be good but not sufficient cause for dismissal (the law uses the words “good and sufficient cause”).

Admittedly, these are just extreme cases, employers who have handled things according to the book generally find that they have a sporting chance in the Tribunal, but the moral of the story is that an employer has to be sure not only of the facts, but of the ability to prove these facts, and then has to be confident that the facts as proved justify the extreme sanction.

And, it should be written in bold and underlined, all this has to be preceded by the employee being given the chance to defend his or her case.

DR. ANDREW BORG-CARDONA

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POLICE

The Police Emergency Rapid Response Service

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POLICE

The Police Force is responsible for maintaining safety and security in the country. The Force is divided into various sections which provide different services. One of such services is the Police Emergency Line , through which all emergencies lodged through 112 calls are dealt with.

The 112 line is intended to deal with real emergencies, which may include any of the following : • immediate threat to a person’s life and property, such as, personal physical attacks and break-ins • traffic accidents with fatalities and/or injuries • Bomb threats.

Over the past three months, the police have received an average of 1287 calls per day on the 112 line, out of which the absolute majority are not real emergencies. This is a situation which depletes Police resources and hinders the Force from focusing its efforts in other areas where it could be more useful and helpful.

It is therefore important the 112 number is only resorted to in situations of real emergency. Cases that require Police assistance, which however do not amount to emergencies, can still receive assistance through contact with the local Police Station or on the free line 119, called Crime Stop.

The Emergency Services Quality Service Charter The Police have also developed an Emergency Services Quality Service Charter which is intended to inform the public about the Police Emergency Services and the standards that can be expected when being assisted in an emergency.

Emergency Services Quality Service Charter - Standards

What if you feel that the Police have not met the standards set?

When you have an emergency and dial 112 you can expect the Police to:

As a member of the general public, you are entitled to effective protection by the Police. Should you feel that the standards set out in case of an emergency have not been met, you can file a complaint through a form which may be collected either from the Commissioner’s Office, or any of the Police Stations or Local Councils.

The form should be sent to the following address :

• answer your call within seconds • respond with courtesy and attention in every emergency • identify ourselves at your request • professionally assess how urgent your call is in order to dispatch the appropriate help needed for your emergency.

• do our best to ensure that a police unit reaches you within a few minutes when your call has been assessed as a genuine emergency • follow the call through until your emergency has been resolved or police have arrived to your assistance.

All 112 calls are subject to assessment before the level of response is decided upon.

Only 112 calls which are genuinely urgent will be responded to on an emergency basis.

The Police provide assurance that full confidentiality will be maintained when an emergency call is answered.

Inspector i/c Complaints Commissioner’s Office, Police General Headquarters, Floriana.

Alternatively, you may wish to help the Police to improve their services by providing feedback through a form which is also available from the Commissioner’s office or any of the Police Stations.

This service is also accessible on the Police website www.Pulizija.gov.mt.

One can also access The Malta Police Force Facebook page, which is constantly updated and provides useful information to the public.

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PANORAMIC DINING AT IL-VEDUTA.

BREATHTAKING VIEWS. MEDITERRANEAN FOOD. SOOTHING AMBIENCE.

ENJOY A WIDE SELECTION OF MEDITERRANEAN PIZZA, PASTA, AND GRILLS WITH FAMILY AND FRIENDS IN A WARM SOOTHING AMBIENCE. IS-SAQQAJJA, RABAT. TEL 21454666 / 21453656. EMAIL: info@veduta.com.mt

O

n the 23rd April, aditus foundation held the successful launch of the ‘Platform of Human Rights Organisations in Malta’ (PHROM).

PHROM is Malta’s first and only platform gathering all local NGO’s which work on human rights issues. PHROM will provide its members with a strong and united voice on areas of concern, creating a meaningful impact on policy and decision-making.

At present, PHROM’s Executive Committee consists of five NGO’s, each operating in different areas of human rights protection and promotion. They are aditus foundation, Din l-Art Ħelwa, the Malta Gay Rights Movement (MGRM), the Richmond Foundation and Victim Support Malta.

PHROM is an autonomous, voluntary and not-for-profit platform registered with the Malta Commissioner for Voluntary Organisations. Its mission is to provide a national forum for human rights organisations in Malta to more effectively develop, promote and advocate for the values of human dignity and equality. PHROM will also provide capacity-building, particularly for grassroots and upcoming NGO’s, on the advocacy tools and skills needed to undertake target-oriented human rights activities. As a national focal point for human rights organisations, one of PHROM’s main activities will be the publication of Malta’s first-ever truly comprehensive and inclusive Annual Human Rights Report. The Executive Committee encourages all NGO’s working in the human rights sector to become PHROM members to strengthen their advocacy efforts, to achieve a unified voice for the advancement of human rights and to raise the awareness, understanding and commitment to human rights in all sectors. PHROM was made possible

HUMAN RIGHTS

The road to

strength & unity

through funding from the ‘NGO Fund’, a programme area within the EEA Financial Mechanism 2009-2014. The mechanism aims to contribute to the reduction of economic and social disparities in the European Economic Area (EEA).

SOS Malta is the Fund Operator for the NGO programme in Malta.

“The platform has adopted a broad definition of human rights, and means to reach different groups of persons and various thematic areas: LGBTI persons, migrants, the elderly and persons with disabilities, as well as the environment, culture, employment, social protection and education. The platform extends an enthusiastic welcome to new members from the local NGO community that subscribe to the values of human dignity and equality.”

DR. NEIL FALZON, DIRECTOR, ADITUS FOUNDATION aditus is an independent, voluntary & non-profit organisation established with the intention to monitor & act & report on access to fundamental human rights by individuals & groups. aditus believes in the universality, interdependence & indivisibility of all human rights & strives to promote their understanding & application. While aditus’ focus is Malta, it works towards highlighting the regional & international dimensions of national human rights issues.

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T FAMILY

he breakdown of a marriage is an unfortunate reality.

It is thus important to have the right legal framework and support services to protect families and to minimise, in so far as possible, the difficulties that come along with it.

Up until just over two years ago, couples experiencing marital difficulties, who wished to part ways, could resort to a legal separation and/or an annulment.

Divorce however was not an option, except for the recognition of those divorces granted by foreign courts.

This process was introduced in Malta’s legal system in October of 2011.

Heavily based on Irish divorce law, this new procedure in Malta is one which allows couples whose marriage has failed to dissolve their union, while simultaneously seeking to curb abuse of this judicial process by imposing certain conditions for the attainment thereof.

The application for divorce may be made either by the couple jointly or else by one spouse against the other. But before the Courts proceed to grant a divorce, three principal criteria must be satisfied.

Primarily, and upon commencement of the proceedings, the spouses must have lived apart for a period or periods of at least four years out of the immediately preceding five years. If the spouses are legally separated, then at least four years must have lapsed from the date of their legal separation.

Accordingly, it is not necessary for spouses to be separated by a court judgment or a separation agreement to be able to file for divorce. It is sufficient that they have ‘lived apart’ for the required period of time. Questions have arisen in relation to the interpretation of this term. However it transpires, from judgments delivered by our courts, that it is possible for spouses to be

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Realities of Divorce Most couples dream to have the perfect marriage, the ideal family and a bond that lasts for life. For some, possibly many, this might well be the case. But for some others things don’t quite turn out as planned.

The 1211 separations filed in Malta last year, a record high in the last ten years, is clear evidence of this.

FAMILY

The law caters for the conversion of separation proceedings into divorce proceedings. Consequently it is possible for either of the spouses going through separation proceedings to request the court to convert the demand for a separation into one for divorce. In such circumstances the court will need to confirm that the criteria aforementioned for the grant of a divorce are satisfied before acceding to such request.

considered as being separated de facto and living apart, even while they are residing under the same roof. Of course each case has to be examined on its own merits and what applies to one case does not necessarily apply to another.

For the granting of a divorce judgment or decree, Maltese courts must also be satisfied that there is no hope of reconciliation between the spouses and that the spouses and their children are receiving sufficient maintenance, where this is due. In so far as spousal maintenance is concerned it is possible for couples to give up this right. Needless to say, this option does not extend to maintenance payable towards the needs of the children.

Divorce proceedings vary depending on whether the spouses are already legally separated or otherwise. When there is already a separation judgment or contract in place the spouses may only ask for the dissolution of the marriage.

But if the spouses are not yet legally separated the applicant may additionally make such requests to the courts which are admissible in separation proceedings.

Divorce has the effect of dissolving a marriage and entitles the spouses to remarry by virtue of a civil marriage. Spouses who attain a divorce are no longer bound by the obligations of fidelity and cohabitation. Additionally, the right of the spouses to each other’s succession ceases. Nevertheless, divorce does not have the effect of changing what was ordered or agreed upon in a separation judgment or a separation contract previously delivered or entered into between the spouses.

Additionally, by virtue of divorce proceedings the wife is entitled to revert to her maiden surname. This applies also to those cases where the wife would not have exercised such right in previous separation proceedings.

There is no denying the fact that divorce and remarriage are a fact of life in today’s world and Malta is no exception. Divorce is a widespread reality which, although unfortunate, provides a feasible solution to couples whose marriage has failed.

On a more positive note successful marriages are also a reality.

Generally speaking people still marry hoping to have a lifelong union with their spouse. Couples still look forward to sharing their life together until death parts their ways. With this in mind we must not forget that marriage still remains one of the most important institutions in our society.

DR. ELAINE GINGELL LITTLEJOHN

Having said this, divorce has certain consequences which must be considered. The right of a spouse to receive maintenance

THERE IS NO DENYING THE FACT THAT DIVORCE AND REMARRIAGE ARE A FACT OF LIFE IN TODAY’S WORLD AND MALTA IS NO EXCEPTION. in terms of a separation contract or judgment shall cease if such spouse remarries or otherwise is in a relationship which is such that it places an obligation on a third party to maintain such spouse. This does not apply to those cases where the maintenance agreed on in the separation contract or ordered in a separation judgment is by way of a lump sum payment.

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INTERVIEW

Lawyers vs Non-Lawyers: Prospective MEP’s battle it out LAWYERS SEEM TO DOMINATE THE POLITICAL ARENA, BOTH AT THE NATIONAL LEVEL AND AT THE EUROPEAN LEVEL. IN VIEW OF THE UPCOMING EUROPEAN PARLIAMENT ELECTIONS, WE CAUGHT UP WITH SOME OF THE CANDIDATES, SOME OF WHOM ARE LAWYERS, AND OTHERS WHO ARE NOT, IN ORDER TO FIND OUT WHAT THEY THINK ABOUT THE MATTER, AND IN PARTICULAR, HOW THEY FEEL THAT THEIR PERSONAL ATTRIBUTES COULD BRING ADDED VALUE TO THE EUROPEAN POLITICAL ARENA?

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INTERVIEW

Helga Ellul I feel that an MEP should utilise her experience and skills to the benefit of her constituents. Thus, in my case I can utilise my extensive experience in manufacturing, HR management and business strategy, for their benefit. An MEP also requires the skills necessary to debate and negotiate successfully on issues that matter to them. One’s capability to contribute to Parliamentary committees, in my case those which focus on business, innovation and employment, is also very important. Finally, a successful MEP needs to be a firm believer in working relationships and negotiations.

I would say that my experience and track record speak for themselves.

Under my leadership, Playmobil Malta became a major player in Malta’s manufacturing industry and by the time I retired, we were employing over 1,000 people (from an initial 50). I consider the introduction of innovative ways to develop the potential of our people there as a major achievement.

Meanwhile, promoting Malta became second nature to me, and I took part in various official delegations to attract investment to Malta. I helped set up the Foundation for Human Resource Development, was a member of MCAST’s Board of Governors for ten years, and was President of the Malta Chamber of Commerce and Industry.

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INTERVIEW

Jonathan Shaw It is not surprising to me that lawyers dominate political arenas both locally and abroad because the legal profession is directly associated with skills that are critical in politics: confidence, public speaking, quick wittedness and eye for detail.

Many good lawyers can therefore make an easy transition into political life. However, the world of politics is constantly evolving and, as voters become more discerning, aspiring politicians must respond by bringing something different to the table.

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Besides the more traditional lawyerly qualities, politicians must today also embody traits like sensitivity, emotional intelligence, management and leadership skills.

My background in business, like my love for sports, has driven me to become results-oriented, able to adapt to different situations and people.

There is less demand for testosterone-driven politics and more demand for effective leadership and good communication.

These may not be traits traditionally associated with the legal profession but certainly traits that are necessary in today’s world of politics. In fact, these qualities are prominent in most successful people, whether they are politicians, lawyers, both, or in a different profession altogether!

This is partly why I got involved in politics in the first place, with the understanding that my experience in business could be suitably applied to a different brand of politics to the one we are used to seeing.

INTERVIEW

Roberta Metsola Lawyers have been at the forefront of political change throughout history, creating laws to protect democracy and the people they represent. Lincoln and Ghandi come to mind.

Of course, being a lawyer is not the be all and end all in politics, many great politicians had no formal legal training. In my experience I have found my legal training to be a great asset. I am fortunate enough that my career means that I have managed to combine my passion for politics with my background in law.

The time that I have spent representing Malta and Gozo within the European Parliament or in my time at the Permanent Representation of Malta in Brussels or as legal advisor to the EU’s High Representative, have been dominated by tough negotiations on different dossiers, issues and legislation on issues from online gaming, digital agenda and financial services to discrimination and the protection of fundamental rights.

Every one of these dossiers I have been involved in, meant that I spent hours poring over legal documents paragraph by paragraph to ensure that I am best able to represent the views of all the stakeholders I have met with in Malta on a particular issue.

Politics is more than just legal affairs, it is about how best to represent the people who have elected you, but when you consider that close to 80% of all legislation discussed on a national level passes through the European Parliament, I at least find my legal background, both at the University of Malta and the College of Europe in Bruges to be a great help.

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INTERVIEW

Marlene Mizzi The European Parliament consists of members who come from all walks of life - from University professors to people with no academic qualifications.

Understandably so, those with some academic training tend to be more articulate and analytical in their debates - and lawyers tend to excel in these skills. However, an effective parliamentarian requires the ability to listen, to debate, to negotiate, to take important decisions and be prepared to stand up to be counted when the occasion requires it.

As an entrepreneur with hands on experience of owning a business,

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as well as experience in the field of banking, insurance and shipping, backed with a Bachelors degree in Economics, and a Masters degree in corporate governance, I felt very confident discussing a wide range of issues and partaking in debates and decisions and speaking in public. Also, having worked abroad before, and being fluent in a number of languages has made it so much easier for me to hit the road running in the short time I had to get used to the Herculean set up of the European Parliament - but I think I succeeded very well.

INTERVIEW

Miriam Dalli I strongly believe that being a politician goes beyond one’s profession.

As a politician I need to represent my people’s needs and aspirations.

As far as I’m concerned this applies both to politicians contesting the local general elections and also politicians contesting the European Parliament elections. I believe that what ultimately makes a difference is my personal experience with people and how I convey their reality. Being a working parent myself helps me understand the realities that families face every day. Furthermore, I make it a point to keep in touch with people so as to understand better their real life experience.

I am contesting these elections because I strongly believe that what happens on an EU level impacts directly our families. Our citizens need to be aware of how they will be effected by decisions taken in the European Parliament and what impact such decisions will have on their every day life.

In everything I do, I will always give utmost priority to the people I will be representing, our families and our country. Here lies my loyalty and I consider this to be an occasion where I can put into practice what I believe in.

In this regard I will be committed to promote the proper representation of my country, to ensure transparency and accountability in my work and to disseminate the relevant information so that Maltese and Gozitan citizens will be aware of what’s happening on an EU level and how this will impact their lives. Moreover I intend to consult prior to taking important positions that will effect our people and to communicate about my work.

Being an MEP brings with it great responsibility, that of best serving and representing the Maltese and Gozitan people in the European Parliament by working hard to achieve the best results for them in the EU.

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INTERVIEW

Fleur Vella After I read a Bachelor of Commerce Honours in Economics and Master in Business Administration at the University of Malta, I started to work with the Government of Malta on research necessary to form Malta’s pre-accession negotiating positions. After Malta’s entry into the European Union I started working on Malta’s EU budget 2007-2013 negotiations which determined the amount of funds Malta should have received during this period. These experiences taught me that when a country has arguments based on solid research, even a small nation like Malta can change the way the European Union works.

In 2006, I felt the need to understand the way the private sector works and started to work in a micro enterprise. During these last seven years I started understand the difficulties micro-enterprises. I feel that my experience make me ideally suited to communicate with both the EU bureaucrat and the humblest of self employed.

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INTERVIEW

MALTA European Parliament election candidates Partit Nazzjonalista Ray Bugeja David Casa MEP Therese Comodini Cachia Kevin Cutajar Barbara Helga Ellul Stefano Mallia Roberta Metsola MEP Kevin Plumpton Jonathan Shaw Norman Vella Francis Zammit Dimech Partit Laburista Lino Bianco Clint Camilleri Peter Cordina Joseph Cuschieri Miriam Dalli Mario Farrugia Borg Charlon Gouder Ivan Grixti Marlene Mizzi MEP Alfred Sant Deborah Schembri Fleur Vella Alternattiva Demokratika

no current MEPs

Carmel Cacopardo Arnold Cassola

Arnold Cassola I have my doubts whether they dominate in the same manner at European level. In Europe, there are politicians coming from all walks of life, and people who want to know more about politics normally read for a political science degree. In Malta, people with political ambitions seem to prefer the law course, since lawyers are traditionally associated with political power. It is interesting to see how people who are originally dentists, architects or journalists end up joining he law course at a later stage in life... and this happens to coincide with their aspirations in the political arena.

Unfortunately (for me!) the functioning of parliament in Malta is conditioned by the private exigencies of Maltese lawyer-politicians. We have the only part-time parliament in Europe.

This is a joke. And the country is suffering because our parliament does not function properly since most MPs do not have the time to dedicate to real politics. What they are more concerned is being able to attend the law courts in the morning and receiving their clients-voters in the afternoon. This way parliament only meets Mondays to Wednesdays 6-9 pm. The country’s needs play second fiddle to the private lawyer’s needs. All this should change.

Tal-Ajkla no current MEPs

Nazzareno Bonnici Alliance for Change no current MEPs

Anthony Calleja Ivan Grech Mintoff Alleanza Demokratika Liberali Malta no current MEPs

Jean-Pierre Sammut Imperium Europa no current MEP

Arlette Baldacchino Antoine Galea Norman Lowell

A snap shot of the

European Parliament

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EUROPEAN UNION

ver the decades the European Parliament has been gaining power and it now acts as a co-legislator for nearly all EU law. Members of the European Parliament play a very important role because most laws in Members States stem from the need to implement European legislation which are mostly amended and adopted by the European Parliament. Therefore what happens in The European Parliament has a direct effect on the Member States and hence a direct effect on you as a citizen.

Members of Parliament are the only directly-elected individuals of this EU body. There are 766 Members and their role is to represent the EU’s citizens which amount to around 500 million. It is the citizens who decide on who should be representing them and this is done through an election.

Elections have been held every five years since 1979 – before that, Members were drawn from national parliaments.

This year, all EU voters will be voting for their members of EU Parliament between the 22nd and 25th May 2014. This election is different to the ones before it, and possibly more important because this time, for the first time ever, the new president of the European Commission will be selected based on the results of the European elections.

So what happens once EU voters vote and members are elected?

Once elected, Members of the European Parliament form political groups. The aim is for the Members to be part of a group because in a group they are in a better position to defend their positions. However there are some Members who choose not to form part of any group - these are known as nonattached Members.

Each group takes care of its own internal organisation. One of the Members is appointed as Chair (some of the groups appoint two co-chairs), another as a bureau and another as a secretariat. 25 Members form a political group, and at least one quarter of the Member States must be represented within such groups.

There are currently 7 political groups in the European Parliament.

What does the Parliament do?

The parliament amends, approves or rejects EU laws and it does so together with the Council of Ministers. Therefore this is a process of “co-decision” which in effect means that a law is only passed when approved by both bodies – this applies in various areas such as workers rights’, asylum, immigration, and consumer protection.

The European Parliament also shares authority over the EU budget with the Council of Ministers and supervises other EU institutions, including the Commission.

Members of the European Parliament divide their time between their constituencies, Strasbourg (where 12 plenary

sittings a year are held), and Brussels, where they attend additional plenary sittings as well as committee and political group meetings.

Most of the work involves in-depth work done in the specialised committees. The committees prepare reports that are later voted on in the plenary. There are 20 standing committees and topics vary. Below are a few examples: • • • • •

Transport and Tourism Employment and Social Affairs Legal Affairs Fisheries Women’s Rights and Gender Equality • Culture and Education

What about Malta?

Malta, just like other Members States, also has representatives in the European Parliament. Malta’s next delegation to the European Parliament, which will serve from 2104 to 2019 will be voted for and elected on Saturday 24th May 2014 This will be the third European Parliament election that Malta will be holding.

DR. ROSELYN BORG KNIGHT & DR. ROBERTA LEPRE

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The Course

The aim of this training programme is to bring employment law and HR together giving participants the ability to understand, evaluate, implement and manage a broad range of Human Resources matters and employment legal issues within their respective organisations.

The training programme is made up of four modules covering a wide spectrum of topics which are essential to deal with HR professionally and legally, namely; Fundamentals of Recruitment; Employees Growth; Diversity, Discrimination and Rights at Work; and Managing Difficult Situations.

The training has a total of 40 contact hours and is MQRIC accredited and on completion of the programme participants will achieve Level 5 Award.

Participants will be assessed on each module.

BenefiTs for eMPLoYers: •

Employers will benefit from increased best practices at the workplace resulting in reduced risks and damages caused through non-compliant practices.

•

Businesses will also benefit from increased ROI (return on investment), better alignment of business strategy with its people, improved performance management practices, increased attraction and retention of best people and better employees’ engagement.

BenefiTs for ParTiCiPanTs: •

Participants will learn about the most important areas of employment law and HR matters and the vital role they play when managing people at the workplace.

•

Participants will be able to see the bigger picture and think strategically when managing or consulting in their respective organisation.

•

Participants will also learn from each other’s experiences, through discussions incorporating also recent employment cases and HR matters.

•

Thus participants shall be in a better position to transfer from practice back to work actions that benefit employees and employers alike.

The Academy of Business Leaders is a joint venture between

In collaboration with:

Course MoDuLes

sPeakers Bio

MoDuLe 1 The funDaMenTaLs of reCruiTMenT Units: • Recruitment; • Selection and Interviewing; • Contracts of Employment; • Defining Employee Status.

Dates: 02.06.14; 04.06.14; 16.06.14; 18.06.14

MoDuLe 2 eMPLoYees GrowTh Units: • Performance and Reward Management; • Understanding and Implementing Coaching and Mentoring; • Employee Engagement; • Learning and Development.

Dates: 30.06.14; 02.07.14; 07.07.14; 09.07.14

MoDuLe 3 DiversiTY, DisCriMinaTion anD riGhTs of work Units: • Managing Diversity; • Discrimination and the Law; • Family Rights; • Dealing with an ageing workforce Dates: 21.07.14; 23.07.14; 04.08.14; 06.08.14

MoDuLe 4 ManaGinG DiffiCuLT siTuaTions Units: • Managing Absence/Stress; • Investigations, Disciplinary Boards, Dismissals; • Termination of Employment; • Preparation for Industrial Tribunal.

Mr. Joseph farrugia HR Consultant & Trainer at Mdina Partnership Dr. roselyn Borg knight Founder & Advocate at Twenty One Law

Roselyn and Joseph have already worked together on a number of projects linking the Human Resource and the employment legal aspects of today’s business environment. Joseph is an HR Professional – working within the realm of Human Resource Management, Consultancy and Training at Mdina Partnership. His passion for people has emanated through work experiences and exposure in various roles and industries. Roselyn is a dual qualified lawyer specialising in employment law. She has years of experience in employment matters, acting on behalf of employers and employees in Malta and the UK on all aspects of employment law. Together they combine different experiences, exposure and academic background that add value to any aspect linking together the law and the Human Resource element

Dates: 15.09.14; 17.09.14; 29.09.14; 01.10.14

Training will be held at the Regus Business Centre in Swatar, between June and September on alternate weeks - two sessions a week on a Monday and Wednesday. All training sessions will be held between 17.15 and 19.45 Tariff: €750.00 per person + VAT

T 2135 4289 E academy@businessleadersmalta.com W academy.businessleadersmalta.com Mdina Partnership is licensed as a Further/Higher Education Institution with the National Commission for Further and Education Malta - Licence Number: 2013-FHI-020 & Institute of Leadership and Management - Centre No: 019784

CRIME

The impact of economic crime

O

ver the last few years the media has increasingly reported instances of fraud that in addition to being cases of great complexity, don’t follow the expected patterns of criminal behaviour. The case involving Patrick Spiteri is one such example having featured in the papers on a number of occasions. Besides being a successful lawyer, Patrick Spiteri has also been described as an expert in tax law, with several links with affluent persons both locally and overseas (“The unstoppable rise of Patrick Spiteri”, 2002). However what appears to have captured public interest mostly was the headlines reporting Spiteri’s dealings in conjunction fraud, falsification of documents, misappropriation of funds, tax evasion and money laundering (e.g. “International composer to testify in fraud case”, 2012, “The unstoppable rise of Patrick Spiteri”, 2002).

Although Spiteri is not the first to have been accused of fraud or money laundering, it is intriguing to consider the impact of these offences upon society. Defining economic crime or whitecollar crime as it is more commonly known is somewhat problematic.

In the past, this type of offence was defined as “crime committed by a person of respectability and high social status

YET THE GENERAL PUBLIC STILL SEEMS TO PERCEIVE THE IMPACT OF FINANCIAL CRIME TO BE LIMITED TO A SELECT, RICH AND WEALTHY, FEW. THIS MAY HAVE CREATED A SENSE OF FALSE SECURITY

26 LIVING LAW

CRIME

on society

BY CHANTAL AVELLINO

what do we really know? in the course of his occupation” (Sutherland, 1949; p.9). Yet, besides crimes such as fraud not being bound to a specific social class, a number of these harmful activities are not classified as illegal due to uncertainty in relation to law and jurisdiction. Clarification has been sought by many and subsequently a number of scholars have attempted to redress this ambiguity. Croall (2001) for example defined economic crime as “an abuse of a legitimate occupational role that is regulated by law” (p. 163) and similarly Korsell (2002) defined this type of offence as “crimes of profit which take place within the framework of commercial activity” (p. 201). Yet this inconsistency in definition created ambiguity in determining what actually constitutes an offence (Nelken, 2002) and subsequently this may have influenced both public awareness and public perception.

The relationship between economic crime and victims is remarkable as this type of offence follows a diverse pattern of offending. Consider fraud as an example, which is also one of the offences Spiteri has been implicated in. The four most common types of fraud include abuse of trust, business fraud, government fraud and investment fraud (Croall, 2007). Therefore many victims of these scams form part of a larger group of persons that are not directly affected by these offences. Nonetheless in some cases offenders may indeed involve singular victims who may have been scammed into investing their

money into some well-manoeuvred scheme. Yet the general public still seems to perceive the impact of financial crime to be limited to a select, rich and wealthy, few. This may have created a sense of false security leading potential victims into believing that they are not likely to fall prey to such an offence and increasing in actual fact their vulnerability. On the other hand, as this type of offence is usually attributed to the wealthy, this sometimes results in a case of “victim blaming” where the victims, are often accused for being reckless with their money. Sometimes it is the victims themselves that engage in “self-blame” due to feeling responsible for having allowed themselves to be deceived.

fraud and access to potential victims. Most offenders within this category occupy a trusted position within an organisation or may have information that the victim is not privy too (Shapiro, 1990). It is therefore difficult to capture the full extent of the problem due to victims not always being aware that they are being scammed, victimisation may be indirect and the impact of offending is often minimal (Croall, 2001). In addition research within this area is still rather limited and considerations regarding the full extent of the implications are probably still not fully understood, particularly regarding issues with respect to the possibility of repeat victimisation and the identification of persons who are most at risk.

Economic crime is often ignored or not perceived as problematic as it does not usually entail any physical harm to victims. In addition the harm is usually borne by larger organisations, so many are unconcerned by the impact of these offences. However the result may be more widespread and noticeable only in certain aspects such as increased insurance premiums and incurred costs related to crime prevention measures. Yet many still perceive economic crime to be a victimless offence, as the victim is not usually specified and offenders are less likely to target a specific victim.

References: Croall, H. (2001). Understanding white-collar crime. Buckingham: Open University Press.

With technological advancement, which increases the level of complexity of these types of scams, also comes the risk of facilitating

Croall, H. (2007). Victims of white-collar and corporate crime. In P. Davies, P. Francis & C. Greer (Eds.). Victims, crime and society.

London: SAGE Publications Ltd. International composer to testify in fraud case.

(2012, October 5). The Malta Independent.

Retrieved from http://www.independent.com. mt/articles/2012-10-05/news/internationalcomposer-to-testify-in-fraud-case-316933/ Korsell, L. (2002). Economic crime, in Crime Trends in Sweden 1998-2000. Stockholm: National Council for Crime Prevention.

Nelken, D. (2002). White collar crime. In M. Maguire, R. Morgan and R.Reiner (Eds.). The Oxford Handbook of Criminology, 3rd edition.

Oxford: Oxford University Press.

Shapiro, S. (1990). Collaring the crime, not the criminal: re-considering the concept of white collar crime. American Sociological Review, 55: 346-365.

Sutherland, E. (1949). White collar crime. New York: Holt, Rinehart and Winston.

The unstoppable rise of Patrick Spiteri. (2002, November 3). Malta Today. Retrieved http:// www.maltatoday.com.mt/2002/11/03/l4.html

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27

NON PROFIT

Fighting Elder Abuse

VICTIM SUPPORT MALTA

Supporting elder persons

Abuse on elderly people

Whilst dealing with a variety of needs, Victim Support Malta also offers assistance to the elderly population in preventing, dealing with, coping and recovering from abuse which very often constitutes crime. Elder persons often find themselves cut off from society and therefore, at times, when abuse occurs, they are unable to deal with it and find it hard to emerge from the pain and suffering that may have been caused.

Following the abuse, they often end up suffering in silence. These individuals are often frightened, feel helpless and rarely speak out since their abuser is often a family member, an acquaintance or even a caregiver upon whom they depend. They fear retribution, embarrassment, lack of care and institutionalisation.

Various are the forms of abuse that an elderly person might be subject to. Neglect might be one of the most common yet rarely spoken about form of abuse that and elderly person might be facing constantly in silence. Verbal and emotional abuse is also a reality that elderly people face in a helpless approach and towards the offender since they might feel not in a position to defend themselves to stand for their rights. Some elderly people also suffer from physical abuse. Since many of the victims feel that they are in a submissive position towards the perpetrator, they do not find it easy to look for help.

VICTIM SUPPORT MALTA IS A NON PROFIT ORGANIZATION WHICH AIMS TO SUPPORT AND ASSIST VICTIMS OF CRIME. THE ORGANIZATION OFFERS EMOTIONAL, SOCIAL AND LEGAL ASSISTANCE TO PEOPLE WHO NEED TO BE EMPOWERED TO OVERCOME THE NEGATIVE CONSEQUENCES OF AN OFFENCE COMMITTED IN THEIR REGARD. ALL SERVICES OFFERED ARE FREE OF CHARGE AND PROVIDED UNDER STRICT CONFIDENTIALITY.

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Fighting Elder Abuse - Project With the aim of helping elderly people preventing crime committed upon them and dealing with challenges that they might be going through, Victim Support Malta is currently working on a project, financed by the Malta Community Chest Fund – Fighting Elder Abuse.

Such project includes meetings with elder persons, individual sessions with elder persons, write ups in various magazines and newspapers and discussions in television and radio programmes.

NON PROFIT

Victim Support Malta had meetings with most of the local councils’ officials in Malta and in Gozo.

At these meetings the aim and purpose of meeting the elderly people in their own community was discussed. For better outreach we are also working with other stake holders, including the church and private entities who work with elderly people.

Matters discussed with elder persons We discuss with elder persons what crime actually is, who a victim is, potential perpetrators and crime prevention techniques that one should consider. We give information about different services in Malta which contribute to the well being of the elderly people. We also invite elder persons to make use of our services in order to deal with any traumas that they could have gone through.

During these meetings, most of the attendees actively participated in the discussions. They felt safe to disclose their worries and often they empowered each other to talk about the challenges that they face in their daily life.

Training of volunteers All Victim Support Malta personnel who were involved in this project, attended a training session delivered by social worker Dr. Marceline Naudi, a senior lecturer at the University of Malta.

FURTHER INFORMATION The project material was collated onto a facebook page, which can be accessed via the following link : https://www.facebook.com/victimsupportmalta For further information or support, you may contact Victim Support Malta on 21228333 or via coordinator@victimsupportmalta.org

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FILM REVIEW

FILMS WITH A LEGAL TWIST

Runaway Jury

L

oosely adapted on the John Grisham novel of an almost identical name, Runaway Jury is an intelligent legal thriller that delivers on entertainment. From the moment I saw the list of award-winning actors involved, I had high hopes.

I was not left disappointed. Gene Hackman, Dustin Hoffman, John Cusack and Rachel Weisz all star in this slick story on the battle between justice and corruption in the jury system.

When the widow of a gun massacre victim sues the gun’s manufacturer, a trial of great controversy sparks to life. Fighting the widow’s case is prosecutor Wendell Rohr (Dustin Hoffman) but the opposition will do just about anything to win. In aid of the manufacturer, is corrupt jury consultant Rankin Fitch (Gene Hackman) who will have no qualms in abusing his position for his client.

However, it seems somebody else on the inside has a plan with someone on the outside. Through the power of manipulation, their long-awaited plan could decide the outcome of this case.

With big name actors comes hype and scrutiny, but they matched

8 10 If there are any films you would like to recommend or even write a review about a film please send us an email: editors@livinglawmagazine.com

This certainly made Runaway Jury feel worthy of watching and maintained my interest until the end. However, the storyline did become rather difficult to believe at some points. As the corruption is so exaggerated, the implausibility of it all was damaging towards the movie’s aim to be taken seriously.

the hype and put in some top performances. Most notably, Gene Hackman was superb as the ruthless and unethical Rankin Fitch. For a film with a two hour running time, it was refreshing to see how scenes were concisely well-paced, rather than unneccesarily drawn out.

Overall, Runaway Jury is a thoroughly satisfying film that I would recommend to see. With the good pitted against evil, tension builds throughout, escalating towards a surprising conclusion.

Despite being unrealistic, it is still interesting to see the lengths that some will go to in order to win. Even the good come close to betraying their own ethics sometimes.

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31

BUSINESS

Competition Law

Is your business compliant?

What is Competition law?

Competition law is designed to stimulate market competitive forces by deterring businesses from engaging in: 1 anti-competitive agreements; and 2 abuses of dominant positions.

A competitive market is characterised by enhanced productivity, innovation and value for the benefit of consumers.

Are Maltese businesses subject to Competition law?

In Malta, two sets of competition rules apply in parallel.

Anti-competitive agreements and conduct, which may affect trade within Malta, are respectively prohibited by Articles 5 and 9 of the Maltese Competition Act (Chapter 379, laws of Malta).

Where the anti-competitive behavior has an effect on trade beyond Malta to other EU member states, such behavior is prohibited

by Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU).

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When are agreements deemed to be anti-competitive?

Whether or not an agreement is anti-competitive is assessed on the basis of its objective, or its effect on competition, rather than its wording or form. Aside from formal, written agreements, verbal and informal ‘gentlemen’s agreements’ are equally capable of being found to be anti-competitive.

Under Article 5 of the Competition Act and Article 101 of the TFEU, cartel behavior is the most serious form of anti-competitive behavior. Any secret agreement or understanding, which fixes prices, limits output, shares markets, customers or sources of supply, or involves other cartel behavior such as bid-rigging, will almost inevitably be regarded as an agreement restricting competition.

So for instance, in a leading EU case, Dutch Building and Construction Cartel, the European Commission found that 28 associations, representing more than 4,000 construction firms in the Netherlands, which through an organization known as the SPO,

exchanged information concerning prices and other trading conditions in respect of construction contracts with one another prior to tendering, had been participating in an illegal collusive tendering agreement.

Other agreements that may be deemed to be anti-competitive include agreements that involve joint selling or purchasing with competitors, a retailer agreeing with its supplier not to sell below a particular retail price or which have exclusivity periods exceeding five years.

What constitutes an abuse of a dominant position?

A relevant market share of above 40% is usually indicative of dominance. However, the assessment of dominance is a complex question of law and economics and is also based on other criteria such as the number of competitors and the respective market shares, the ease with which new competitors can enter the market and the extent of any countervailing purchasing power of customers.

BUSINESS

Why comply with Competition law rules?

All Maltese businesses should be aware and comply with both Maltese and EU competition law rules, not only to assert their own rights and protect their position in the market place but also since the risks of being associated with an anti-competitive agreement or abusing a dominant position are serious. These include:

The prohibition under both Article 9 of the Competition Act and Article 102 of the TFEU is not on the holding of dominance, but on the abuse of such dominance.

Accordingly, to fall foul of competition rules, aside from a dominant business, there must also be anti-competitive conduct, which exploits consumers or tends to have exclusionary effects on competitors.

Some of the types of conduct by a dominant business that are likely to infringe Maltese and EU competition include: •

Charging prices so low or so high that that they do not bear any reasonable relationship to the economic value of the goods or services supplied;

•

Giving rebates and discounts that are designed to encourage and reward loyalty and to prevent customers from switching to alternative suppliers;

•

Requiring a customer to purchase a combination of separate goods or services where the bundled goods are not available separately;

•

Offering different terms or prices to similar customers, which go beyond variations resulting from normal commercial negotiations;

•

Refusing to supply an existing or long standing customer without objective justification; and

•

Entering into exclusive or long-term contracts.

Well-known recent EU cases in this respect include the Wanadoo case, whereby the Commission found that Wanadoo, a subsidiary of France Telecom, had infringed Article 102 TFEU by engaging in predatory pricing in the provision of high-speed internet access services and the Microsoft/W2000 case whereby Microsoft was deemed by the Commission and the General Court to have abused its dominant position by virtue of its refusal to grant interoperability information and its bundling of Windows Media Player with the Windows PC operating system.

•

agreements being rendered unenforceable;

•

firms being fined up to 10% of their total turnover. By way of example, at an EU level, the European Commission imposed fines as large as EUR1.06 billion on Intel in 2009 for abusing its dominant position in the market for a certain type of computer chip and EUR280.5 million and EUR310 million on Air France / KLM in 2010 for participation in an air cargo cartel;

•

the possibility of private damages actions, also in the form of class actions, by disgruntled competitors or customers, who have suffered a loss as a result of the breach;

•

reputational risk and business disruption that accompanies lengthy investigations and litigation.

Keeping in mind the potential consequences for breach of competition law and against a background where the battle against anti-competitive behavior is increasing in Malta and the EU, it is strongly recommended that all businesses foster a culture of compliance amongst their employees and key individuals within the business.

DR. ANJELICA CAMILLERI DEMARCO

LIVING LAW

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LIFESTYLE

Life is for Living

BEING CREATIVE WITH LIGHT AND COLOUR, WORKING IN GLASS OFFERS ME MANY EXCITING AND CREATIVE CHALLENGES.

34 LIVING LAW

LIFESTYLE

A

lison Fenech Gasan, an amazing mother of two, runs her own custom decorative glass company in Malta, Stained Glass Ltd., which is a subsidiary of AMAL Group.

Over the past 21 years Alison has acquired experience both in design and execution of work. She chose to work with glass - “I love creativity and work from design concept to production”.

We agree that most of us have a full and stressful life however in Alison’s opinion “happiness boils down to priorities and living in balance.

I find that taking up a hobby can help switch off from pressures once you are away from work. It is also a break with a purpose, which can help feel that you’re not just ‘sitting around’, but using time for something productive”. She thinks that hobbies provide a nice break in a busy week and explains that often when one goes back to the thing that s/he was finding stressful, one can cope better having taken a break from it and ‘switching off’.

“This can prevent stress from building up”, Alison explains.

During a recent business talk Alison realized how glass fusing has become a widespread hobby and this is what is driving her to share her passion about glass.

She organises courses where participants are able to learn more and create their own art decorative glass and functional pieces like dishes, bowls, plates, glass tiles, and jewellery.

She captures it all when she says “Growth in life, development in design, expansion in business is what drives me but I benefit greatly from having some time to recharge my batteries by doing something that I enjoy and helps me live in balance”.

The next course will be held in mid-June and for further details please email: sgl@maltanet.net

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35

Rights on paper - but are they accessible?

F

ollowing researched patterns of abuse suffered by LGBTI persons, a distinguished group of international human rights experts met in Yogyakarta, Indonesia in 2006, to outline a set of international principles relating to sexual orientation and gender identity. The result was the Yogyakarta Principles: a universal guide to human rights which affirm binding international legal standards which all States must follow.

In April 2014, Malta became the first European state to add recognition of gender identity to its constitution as a protected category. So far so good.

Problems however arise when one comes to enforce these principles in practice. The third Yogakarta principle, states, amongst other things, that ‘ Each person’s selfdefined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom.’ This therefore implies that one can choose to express their preferred gender identity.

In Malta, persons who have undergone irreversible gender reassignment surgery (commonly

36 LIVING LAW

referred to as a sex-change operation) may change their particulars in official documents such as their birth certificate, driving licence, identity card and passport. Nonetheless, the problem arises due to the fact that this is not an automatic right.

In order to assert such rights, transgender persons have to file a court case against the Director of public registry. The court would then appoint experts, who would confirm the assertion of the person making the claim – in other words, they would have to have their ‘bits’ examined. Needless to say, this amounts to a humiliating process which we can certainly do away with. Besides the fact that court proceedings are lengthy and costly – meaning that they are not accessible to all.

Moreover, what about those persons who have not undergone hormone therapy and/or surgery due to financial reasons? Are these not also entitled to express their gender identity in accordance with the principles declared above?

Rights on paper do not easily translate into rights in practice.

Let us hope that new procedures are adopted, through which persons who have already suffered enough do not continue being victimised by the same structures which are supposed to protect them.

THE LAW IS AN ASS

EACH PERSON’S SELF-DEFINED SEXUAL ORIENTATION AND GENDER IDENTITY IS INTEGRAL TO THEIR PERSONALITY AND IS ONE OF THE MOST BASIC ASPECTS OF SELF-DETERMINATION, DIGNITY AND FREEDOM.

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37

PARLIAMENT

Protection of the

Whistleblower Act What? How?

The Protection of the Whistleblower Act was approved by Parliament on 16 July 2013 and came into force on Sunday 15 September 2013 with the object of providing for procedures, whereby employees in both the private sector and the public administration may disclose information about any instance of improper practice by their employers or fellow employees without the risk of incurring detrimental action for such disclosures.

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C

onsequently, who would qualify as a whistleblower under the Act? What sort of protection is afforded?

Which disclosures are protected and what detrimental action is the whistleblower protected against?

Who is the whistleblower?

What protection is afforded?

The whistleblower is any employee who reports a misdoing or makes any form of disclosure to a whistleblowing reporting officer or a whistleblowing reports unit.

The Act considers a disclosure to be protected if the disclosure of information is made in good faith and if the said employee discloses such information because at that given time, the person reasonably believes that the information is substantially true and shows an improper practice being committed by the employer, a fellow employee or a person acting in the employer’s name and interests. Moreover, the disclosure must not be made for purposes of personal gain. One should also note that anonymous disclosures of information are not protected by means of the Act. A whistleblower is not liable to any civil or criminal proceedings or to a disciplinary proceeding for having made a protected disclosure.

Furthermore, the whistleblower is afforded full protection against any detrimental action irrespective of whether the disclosure was made in good faith or not, the fact that the whistleblower was mistaken about its relevance and import or that the perceived threat to the public interest did not eventually materialize.

Protection is ascertained even if the whistleblower did not fully respect the procedures required by the Act. Finally, it is imperative to point out that the disclosure of information, which is protected by legal professional privilege is not protected under the Act!

PARLIAMENT

What sort of activity would constitute an ‘improper practice’?

What if detrimental action does take place in retaliation for a protected disclosure?

An improper practice is described by the Whistleblower Act as an action or a series of actions, resulting in failure to comply with legal obligations; endangering the health or safety of an individual; damage to the environment; the occurrence of a corrupt practice; a criminal offence; bribery or a case of miscarriage of justice. The concealment of any information which may tend to show the occurrence of any of the mentioned activities is also considered as an ‘improper practice’, which the whistleblower may report.

The law provides any person with the opportunity to file an application to the First Hall of the Civil Court if that person believes that detrimental action had been taken or is about to be taken against him in retaliation for having made a protected disclosure of information. If the Court is satisfied that detrimental action had taken place or was intended for a protected disclosure, the Court may award damages to the person who suffered the detrimental action.

Will the identity of the whistleblower be revealed?

No! The whistleblowing reporting officer (or the whistleblowing reports unit) receiving the disclosure of information must not disclose information, which identifies or may lead to the identification of the person making the report (the whistleblower). The identity of the whistleblower will only be revealed if the whistleblower expressly consents in writing.

What detrimental action is the whistleblower protected against?

The Protection of the Whistleblower Act protects the whistleblower from any action causing injury, loss or damage; victimisation, intimidation or harassment; occupational detriment; prosecution relating to calumnious accusations and/ or; civil or criminal proceedings or disciplinary proceedings.

Occupational detriment relates to the working environment of the employee and includes being dismissed, suspended or demoted, being transferred against the employee’s will and being denied appointment to employment, profession or office.

What if the whistleblower is the perpetrator or an accomplice of an improper practice?

No immunity is afforded to the whistleblower if it transpires that the same person was the perpetrator or an accomplice of an improper practice, which the person disclosed information about. Therefore, the Protection of the Whistleblower Act does not prevent the institution of criminal proceedings against the whistleblower where the reported improper practice of which the same person was found to be a perpetrator or accomplice, constitutes a crime or contravention under any law prior to its disclosure. Disciplinary or civil proceedings or liability may also arise as a result of the whistleblower’s own conduct.

On the other hand, any court or tribunal may mitigate or remit the punishment of such whistleblower on the basis that the disclosure was made by the same said person.

DR. ROBERTA AVELLINO

LIVING LAW

39

OMBUDSMAN

Compensation

for a disability caused after being admitted to hospital for surgery The Parliamentary Ombudsman has a wide remit in his function of checking upon the delivery of the public service. In this section, we bring you a selection of decisions taken by the Ombudsman in the exercise of his functions, in the hope that the relative information can be availed of by as many persons as possible. In this issue, we review the decision concerning a claim for compensation for a persons’ disability allegedly arising after being admitted to hospital for surgery. The article below is merely a quick snapshot of the relative complaint, aimed at illustrating the general principles, or the Ombudsman’s approach to particular issues.

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OMBUDSMAN

The complaint A patient who underwent surgery because of an incarcerated parastomal hernia, stated that he sustained a disability following the surgery. The surgery had no relation to the disability sustained. After a series of medical examinations, a Consultant Neurologist at Mater Dei Hospital concluded that the patient sustained from a 50% disability, which definitely he was not suffering from on admission.

The complainant, through his legal advisor, stated that since he became a disabled and dependent person, and went through various expenses was requesting a compensation. His request was declined. The complainant asked the Office of the Ombudsman to investigate the case.

Facts and findings In April 2010, the complainant was admitted to Mater Dei Hospital suffering from an incarcerated parastomal hernia. The following day he was operated and his condition was stable. Following the surgical intervention he was transferred to the Intensive Care Unit (ITU). Following a ‘stormy post-operative’ recovery he was transferred to his ward.

Whilst recovering, his wife noticed that he was suffering from a weakness in his left upper limb.

This was reported to the duty neurologist who diagnosed the patient with a possible cerebral infarction which caused a profound weakness of the whole left upper limb. The patient was discharged from hospital in May 2010.

In July 2010, the patient was examined by a Consultant Neurologist, and was diagnosed with a left post ganglionic brachial plexus lesion.

The complaint underwent various neurological tests in the following months and little improvement was noticed. In November 2011, whilst under examination, it was noticed that the patient had Grade 4 weakness of the left triceps, a complete wrist and finger drop and all the intrinsic muscles of the left hand.

The Neurologist Consultant declared that the lesion he was suffering from, was not related to the initial surgical problem, but it may have occurred, either sometime during the surgical intervention, or whilst the patient was under intensive care or whilst he was being transferred to the Intensive Care Unit. He also declared that by analogy, although there wasn’t a specific figure for a complete lesion of the lower trunds of the brachial plexus, the patient had a 50% permanent disability.

Conclusions and recommendations The Commissioner for Health, accepted to investigate the case and after communicating the complaint with the Department for Health, the Commissioner was informed that the Chief Medical Officer was collecting the information about the case, in order to enter into settlement with the patient.

Outcome The Department for Health, without admitting to any liability whatsoever for the damages alleged by the patient, accepted to compensate the patient.

After negotiating the initial offer, the patient accepted the compensation offered.

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41

VOX POP

Dress to impress

Vox Pop 1

The Director General of the Courts of Justice has recently issued notices advising the public that they may be refused entry into the Courts should they not be properly dressed.

What kind of attire is required, in your opinion, to maintain the required decorum in Court?

Vox Pop 2 Edward Demicoli

Lorraine Camilleri

Although “l’abito non fa il monaco”, one should be as smart as possible in court. Jackets for men, maybe ties optional and smart wear for women. Track suits and running shoes should be left for when exercising, and not for court.

Anyone with cotton bottoms with “gorgeous” printed on the bum should be sent to jail and key thrown away. Dress code should be relaxed a bit in summer. The law courts should be respected. On whether that respect is deserved… to each his own conclusion.

I do agree that there should a sense of decorum and that people should respect authority, in particular the Court. Attire should be smart but we don’t have to exaggerate.

When I was in court in summer, it was hot - I was wearing black trousers and a sleeveless shirt buttoned all the way to the top.

I had a jacket to wear to appear in front of the judge but I was made to wear the jacket all morning in court, with no fan, let alone airconditioning. So I think things have to balanced.

Vox Pop 3 Alan Paris Thankfully, so far, I haven’t had much opportunity to visit the Law Courts. However, I would think that for whatever reason you are there you would like to give a good impression.

That sometimes involves conforming to how you want people to perceive you. So I suppose, whether you’re on the prosecuting or defending side, you’d want to ‘look the part’. I would say dress smart. If I had to show up in court in shorts and flip flops it would give off the impression that I’m not really bothered with being there and would rather be at the beach, I suppose.

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sharing i s giving.. .

un... f s i ng shari

shar ing is carin g...

sharing is love...

share the crunch

www.nectar.com.mt