The Caswell Franklyn Column – Docking Strikers Pay Not Automatic in Public Service
It was with utter amazement that I read a circular purportedly from the Head of the Civil Service reminding senior managers in the Public Service of the General Orders relating to absence from duty without permission, in response to the trade unions announcement of a march. Additionally, they were required to “make a note of any officers or employees absenting themselves from duty during working hours without authorization”.
To my mind, this communication is particularly troubling for a number of reasons. Firstly, I was stunned by what I consider to be the improper issuance of the circular and had to ask myself, why would the person, who is the final arbiter of grievances in the Public Service, insert herself so early into a matter that could potentially end up on her desk for resolution?
Let’s say that an officer, who attended the march, had his pay docked as result. Apart from industrial action, there are several options available to the aggrieved employee or the union to seek to resolve the issue. The officer may file a grievance in accordance with section 12 of the Public Service Act (PSA). That section allows an officer, who is aggrieved by the action of a person who has supervisory powers over him, to invoke the procedure with respect to grievance handling that is set out in the Fourth Schedule.
Accordingly, the union is required to refer the matter to the Head of the Public Service for resolution before declaring a dispute. It would now seem that this ill-advised circular would send an aggrieved officer looking for other options.
An aggrieved officer, whose pay has been docked, also has the option of going to the High Court. It is my view that notwithstanding what is written in the General Orders and the Code of Conduct and Ethics, permanent secretaries and heads of department cannot automatically reduce the pay of persons who are absent from duty without permission.
Paragraphs 15 of the Code of Conduct and Ethics makes it an offence for an officer to absent himself from duty without permission, except in the opinion of the permanent secretary or head of department the absence is due to illness or other unavoidable circumstances. It goes on to say that the pay of the officer may be reduced by the permanent secretary or head department to take account of such absence.
Among other things, paragraph 27 of the Code of Conduct and Ethics makes it an offence of a serious nature to breach paragraph 15. The first offence of a serious nature mentioned in the Code of Discipline is: “absence from duty without leave or approval”.
Paragraph 4.(2) sets out the role of the permanent secretary and head of department in relation to misconduct of a serious nature. They can investigate the matter and report their findings to the Chief Personnel Officer. They do not have the power to discipline public officers. Section 94.(1) of the Constitution assigns that role to the Governor-General, acting on the advice of the PSC.
Further, section 95 of the Constitution allows the Governor-General to delegate his powers, except the power to dismiss, to one or more members of the PSC or to public officers. So far the Governor-General has not done so in respect of permanent secretaries and heads of department. In any event even if he had done so, accused officers still have a right to due process before a disciplinary penalty could be imposed. It is interesting to note that docking pay is not a penalty that is set out in the Code of Discipline.
Also, if an officer believes that he has been adversely affected in his employment by his employer because he went on a trade union organised march, he can report the matter to the police. Section 40A of the Trade Union Act makes it an offence, punishable by a fine of $1,000 or imprisonment for six months or to both, for an employer to dismiss a workman or adversely affect the employment or alters the position of a workman to his prejudice because that workman takes part in trade union activities outside or, with the consent of the employer, within working hours.
The Public Service is a rules-based organisation but it seems that those who are required to manage the service do not have a working knowledge of the rules.