Yes, women have rights. The right to remain silent…

I find it vaguely ironic that merely a week after Michelle ‘Ma Belle’ Muscat was pilloried for a speech in defence of working women, another formerly working woman had her case for unfair dismissal on grounds of pregnancy thrown out on a technicality by the Industrial Tribunal.

The close proximity of these two unrelated events is of course completely coincidental. And yet it is oddly significant: Anika Psaila Savona filed her case four years earlier, and if the’ judgement’ came out this week… well, that gives us a rough indication of how long such entities tend to take just to realise what their own competencies even are.

That they eventually reached no decision at all will come as no surprise to anyone familiar with the workings of Malta’s myriad tribunals, commissions and other various quangos … and while I won’t comment on what decision the tribunal should have reached (I happen to know Anika personally, which creates an automatic bias) I think a few words do need to be said about the odd coincidence whereby all such entities suddenly find they have no real power when confronted by a challenge to any of the country’s prevailing power hotbeds.

Psaila Savona had her contract with the Corinthia Group (to which she previously provided legal services) terminated six months into her pregnancy. At a glance this looks utterly illegal – employers are not permitted to even ask prospective employees for their future plans, lest it be interpreted as a subtle way to weed out potential mothers-to-be at interview stage – but as in all things, there are ways and means to circumvent this legal nicety… which incidentally serves to protect working women, and also encourage more women to participate in the labour force (both of which were key ingredients to Michelle’s little speech, to which I shall return shortly).

One way to do this is to hire such candidates in the capacity of consultants instead of full- or part-time employees: and often, as in the case of questions during interviews, this will be done in precautionary fashion. In Psaila Savona’s case, the transition occurred after working on a fixed contract for seven years. She was asked to sign a new contract which (among other things) altered her status from ‘employee’ to ‘consultant’… thus permitting the employers to sidestep legislation that applies to employees but not to consultants.

An old trick, I would have thought. But that’s the law for you… all prim and proper in its declared intentions, but so full of holes it could be mistaken for the victim of a drive-by shooting.

Like I said earlier I won’t comment on what decision the tribunal should have reached – this is ultimately a legal matter, and legal expertise is required to settle it – but as things stand this won’t be necessary, because the tribunal reached no decision at all. After four years deliberating, it concluded that the case was outside its jurisdiction. Which sort of makes you wonder why the same tribunal even exists, other than to waste everyone’s time and add further obstacles in the path of the long-suffering Maltese justice-seeker.

In reaction, Psaila Savona said she now awaits the decision of the civil court… and again, this heavily underscores the dereliction of duty on the part of the industrial tribunal. The whole point of having an industrial tribunal – or for that matter a small claims tribunal, or a family court, or a drugs court (of the kind we were promised over a year ago, but which has never materialised) – is to divert cases away from the civil and criminal courts, with a view to lessening the caseload and expediting justice for everyone.

Yet in this case the tribunal merely illustrated the fact that it cannot or will not fulfil that particular function; and to add insult to injury, it took four whole years to reach that decision, thereby also reversing the objective of its own commitment to speed up the judicial process.

At which point we must also ask why it felt it had no jurisdiction to intervene. If the issue concerns her precise status as either employee or consultant, the same tribunal may wish to know that there are European directives which compel member states to offer protection to working women under similar circumstances, even if their dismissal and/or discrimination falls within the boundaries of the law. The tribunal chose not to enforce such laws, which can only mean one of two things: a), that the same European laws have not been properly transposed into Maltese legislation, in which case the situation will have to be rectified before we get pummelled by European court actions; or b), that the tribunal simply picks and chooses which parts of its own remit it actually applies in any given case.

But even without these considerations, there were (allegedly, I suppose I have to add) other question marks hovering over her dismissal. Legal notice 439 of 2003 (entitled ‘Protection of Maternity’) safeguards the employment rights of pregnant women, women who have recently given birth and breastfeeding women. It flatly forbids dismissing a pregnant woman ‘due to her

condition’; and further specifies that if the employer thinks that there is a good and sufficient cause to do so anyway, “the employer shall: (a) cite duly substantiated grounds for her dismissal in writing in her notice of termination; (b) send a copy of such notice to the Director  [responsible for Employment and Industrial Relations]”.

From day one, Psaila Savona argued that the letter she received six months into her pregnancy did not provide a reason for dismissal. Her former employers will no doubt argue differently. Surely, this is an area where the tribunal does have jurisdiction to take a decision.

As things stand, however, we are confronted by an apparent legal vacuum when it comes to protecting women at the place of work. And this brings us back, with a crash, bang and tinkle, to that little speech which ruffled so many feathers (and no small

amount of fur) on this year’s International Women’s Day.

Fortunately Michelle chose not to wear any acrylic fur this time round, thus sparing herself a volley of opprobrium from the Society For the Protection and Care of Artificial Fabrics and Textiles. But she tragically chose to speak in English, thus giving some people – including a few who would have fared far worse if compelled to give a speech in Maltese – alternative grounds to simply lay into anything the PM’s wife does, wears, says, thinks, or even gives birth to.

Oddly, however, none of her overwhelmingly female critics tried to answer any of the questions Michelle Muscat actually raised in that speech. One of those questions concerned the fate of women “aged 25, 30, 25…”who “vanish into thin air”… “when children come along…” It’s a fair question, all things considered. What happens to these women? Some of them (Michelle conjectures) voluntarily stay away from the workplace because that’s what they’ve been taught in this “Catholic country” of ours. I fail to see how anyone can really argue with that; in 2004, when Lawrence Gonzi launched a campaign to entice more women into the labour market, the

Catholic Church’s response was to run a billboard campaign of its own, urging them all to stay home and become baby-making machines for the Greater Glory of God.

But there are other answers to Michelle’s question. Some women may find themselves struggling with walls of bureaucracy, and endless procedures that take you nowhere very slowly, after being unfairly (if not unlawfully) dismissed upon pregnancy.

Some of them may be busy discovering that for all our claims to have transposed all necessary legislation to ward against discrimination and unequal treatment, the reality on the ground is that they are simply not protected at all. And rather than go through the hassle of endless, pointless legal arbitration, they simply choose to forgo the entire bother by staying at home.

And the starkest irony of all is that no sooner does a Maltese woman voice her concerns with this issue – on International Women’s Day, no less – than she will be shouted down by a chorus of indignant mothers who suddenly take offence at the perceived sleight to their ‘vocation’… even if, a few years back, some of these same mothers were loudly objecting to the aforementioned Church campaign.

Still, women can console themselves that at least one of their rights remains inalienable in this country. The right to remain silent…