The term Notice Period implies the time period between the receipt of resignation/ termination from employment and the last working day. Notice is to be handed by the party wishing to terminate the employment (i.e. either by the employee to the employer or vice-versa) and shall begin to run from the next working day following the day on which the notice is given.
Note, however, that in cases where the employer has valid, good and sufficient reasons to terminate an employee on serious disciplinary grounds, dismissal from employment could be immediate and without giving notice.
With reference to Article 36 (2), during the probationary period, whereby an employment contract can be terminated by both the employer and the employee without providing any justification, no notice period needs to be given if the employment was for less than one month. After one month, the minimum notice period as indicated by Article 36 (5) of the abovementioned Act, is as follows:
More than one month and up to six months – 1 week
More than six months and up to two years – 2 weeks
More than two years and up to four years – 4 weeks
More than four years and up to seven years – 8 weeks
More than seven years and up to eight years – 9 weeks
More than eight years and up to nine years – 10 weeks
More than nine years and up to ten years – 11 weeks
More than ten years – 12 weeks.
Irrespective of what was agreed between the parties or anything in contrary, the Notice Period, in relation to an Indefinite Contract, proposed by either party shall be determined based on the time that the employee has been engaged within continuous employment with the same employer.
However, with reference to Article 36(5) (f) of the Employment and Industrial Relations Act, Chapter 452 of the Laws of Malta, the employer and the employee may agree to such long periods in the case of technical, administrative, executive or managerial posts.
A pregnant employee cannot be served notice during probation unless a clear justifiable reason exists and is expressed to the employee in writing. Furthermore, notice cannot be given during maternity leave or for a period of 5 weeks following the end of maternity leave, if the employee is incapable of performing work due to a pathological condition as a result of confinement.
When an employer receives notice from an employee in an indefinite contract, the former may either choose to allow the employee to continue working until the expiration of the Notice Period or to stop the employee from performing anymore work. The employer would then owe the employee the full wages payable of the remaining unexpired Notice Period.
On the other hand, should an employee under an Indefinite Contract, decide not to work any or part of the notice period, he/she is to pay half the wages of the unexpired Notice Period to the Employer. The abovementioned payable wages are also to be paid where any relevant party fails to provide the notice as explained above.
Notwithstanding the above, an employer and employee may come to an amicable agreement on how much notice to serve without any of the parties incurring any payment in wages. Whilst this is not guided by law, it is a normal HR practice, especially when notice is served by the employee, that the employer and employee agree on what period of notice is acceptable and any availability thereafter.
The timelines provided by employment law are based on the assumption that the longer the tenure, the longer the notice period should be. However, there are various other factors that could determine how much notice is truly necessary or desirable – for example, the role being performed, the size of the team and/or how fast a new team member could be recruited.
Both the employer and the employee, therefore, need to weigh the pros and cons of departing from the legally indicated notice periods and aim for a win/win. In the event of an amicable agreement being reached to serve a different period of notice than that indicated by law, it is good practice to put this in writing and agree on the terms guiding this new arrangement. This would ensure alignment and decrease the risk of tension between both parties at a later stage should one party deem the arrangement to be unfavourable.
About the Author
This article has been authored by Elaine Dutton, Head of Human Resources & Employment Advisory Services and Bjorn Camilleri, CSB Group Legal Trainee. For any additional information or support required please contact us on [email protected].