Managing employee conduct and performance in the workplace is an essential aspect of running any business. Where issues of misconduct, poor performance, or unprofessional behaviour arise, employers often address such matters through disciplinary warnings before resorting to more serious measures, such as the dismissal of an employee. Maltese jurisprudence has recognised both written and verbal warnings as part of workplace disciplinary procedures. However, although verbal warnings may be valid in principle, practical challenges frequently arise when employers attempt to prove that such warnings were in fact issued, particularly where disputes later emerge.

In Malta, disputes concerning alleged unfair dismissal are typically heard before the Industrial Tribunal. When reviewing a dismissal, the Tribunal examines whether the employer had good and sufficient cause to terminate the employment relationship, as outlined in Article 36(14) of the Employment and Industrial Relations Act (Chapter 452 of the laws of Malta). In doing so, the Tribunal assesses the overall circumstances surrounding the dismissal, including whether the employee had previously been warned about their conduct or performance. Other factors may also be taken into account, such as the employee’s work record, promotions, bonuses, or other indicators of the employee’s performance prior to the termination.

Are Verbal Warnings Legally Valid Under Maltese Law?

Generally, verbal warnings may be valid and do carry some weight in court, however, they are difficult to prove alone. Unlike written warnings, verbal warnings are frequently not formally recorded or documented. Consequently, in the event of a dispute, particularly one concerning dismissal, an employer may encounter difficulties in demonstrating that the employee had previously been warned about their conduct or performance.

For this reason, an examination of decisions delivered by the Industrial Tribunal and the Court of Appeal provides useful guidance as to how the Maltese courts have approached the issue of verbal warnings in practice.

How Do the Courts Approach Verbal Warnings?

Decisions by the Industrial Tribunal and the courts show significant emphasis on evidence and proper documentation when assessing disciplinary proceedings. In particular, the Tribunal often examines whether the employer followed a fair and structured disciplinary process and whether the employee was clearly informed of the concerns raised.

In one case, the Tribunal referred to the employment law author Norman Selwyn, who observes that failure to provide warnings in accordance with the agreed disciplinary procedure may create difficulties in unfair dismissal proceedings. In many workplaces, disciplinary procedures follow a progressive structure beginning with an oral warning, followed by a first written warning, and ultimately a final written warning before more serious disciplinary action is considered.

In another case, the Court of Appeal was unable to determine whether verbal warnings had actually been issued, as no documentation existed and no witnesses were able to confirm that such warnings had taken place. In light of these circumstances, the Court emphasised the importance of maintaining proper records of disciplinary measures. Even where a warning is delivered verbally, employers are encouraged to record the warning, for example by sending a short email confirming that the warning was issued and notifying both the employee and the human resources department.

In a further decision, the Court of Appeal ruled in favour of the employee because there were no clear details regarding the number, timing, or nature of the verbal warnings allegedly issued by the employer. Although the Court did not entirely exclude the possibility that such warnings had been given, it was unable to assess their seriousness or rely on them in determining whether the dismissal had been proportionate.

Similarly, the Tribunal has held in other cases that vague and unsubstantiated allegations that verbal warnings had been issued cannot justify dismissal, particularly where there is no clear evidence regarding their content, frequency, or seriousness.

Why Is Documentation Important?

Proper documentation is a fundamental element of any fair and transparent disciplinary process. Written warnings create a clear record of the concerns raised, the date on which the warning was issued, and the expectations placed upon the employee moving forward. This helps establish a reliable sequence of events should disagreements later arise.

For this reason, even informal verbal warnings should ideally be documented. Importantly, such documentation need not be extensive. A simple email confirming that a warning was given, or a brief written note acknowledged by the employee, may already serve as valuable evidence.

From a practical perspective, maintaining records not only protects the employer in the event of a dispute but also ensures that the employee clearly understands the concerns being raised. In this way, documentation promotes transparency and clarity for both parties. Without proper records, disagreements may easily arise regarding what was said, when the warning was issued, and the seriousness of the warning itself.

Best Practices for Employers

In order to reduce the risk of disputes, employers should ensure that clear disciplinary procedures are in place and that warnings are properly documented. Some practical steps include:

• - keeping written records of all warnings issued to employees, even where the warning is initially delivered verbally;
• - noting the date, nature of the issue, and any instructions or expectations communicated to the employee;
• - asking the employee to acknowledge the warning in writing where possible; and
• - ensuring that disciplinary procedures are applied consistently across the organisation.

By following these practices, employers can establish a clearer and more structured disciplinary process, which may help prevent misunderstandings and reduce the likelihood of disputes.

How DW&P Can Help

Navigating workplace disciplinary procedures can be complex, particularly where issues of employee conduct may lead to dismissal. At DW&P Dr. Werner & Partners, we provide practical legal guidance to employers on managing employee performance, implementing disciplinary procedures, and ensuring compliance with Maltese employment law.