Principles of publicservice disciplining

THE EDITOR: Two very recent court decisions at different levels of the judicial system reinforce some of the principles involved in decisions by service commissions or the Commissioner of Police (who has been given the disciplinary powers of the Police Service Commission by constitutional amendments made in 2006 unanimously by Parliament).

In both judgments, one in favour of the police officer and the other in favour of the Public Service Commission (PSC), the principles underlying the use of the disciplinary powers against public officers are recounted as including: (1) application of the principles of natural justice, (2) fairness, (3) justifiability and (4) reasonableness.

The disciplinary powers of service commissions are exercised under the provisions of the Constitution which establishes the power of discipline as one of the powers of a service commission, which are: to appoint, transfer, promote, discipline and terminate.

The service commissions also make regulations that establish the disciplinary process that are found in Chapter VIII of the regulations and is entitled “Discipline” and comprises regulations 84-114. It applies in relation to officers employed in the public service, the prison service and various other public services.

What constitutes misconduct for a public officer previously formed part of these regulations. But the Privy Council decision in the Endel Thomas v the Attorney General case made it clear that what constitutes misconduct is a matter for the executive and negotiable and not for definition by a service commission.

As a result of that decision, in each service there are now codes of conduct which are negotiated between the Chief Personnel Officer and the relevant recognised associations or unions in the public service.

The popular notion that public officers cannot be disciplined, including dismissal, is a totally false and mythical belief.

The disciplinary powers must be exercised based on the principles outlined at 1-4 above by a service commission or the CoP (given by constitutional amendment in 2006).

No minister or other member of the state executive exercises such disciplinary powers which apply to public officers who are appointed by a service commission or the CoP.

The executive cannot suspend (furlough), deny salary (without pay) or dismiss (lose job for abandonment) any public officer, contrary to the Constitution.

Employment of public officers is permanent and pensionable, a particular category recognised by our courts in the case of Reddick v Lalla and Others.

The dismissal of a public officer through disciplinary action deprives a public officer not only of his employment but also of his benefits, such as a pension.

Therefore, the application of the principles outlined at 1-4 above is critical in the exercise of the disciplinary powers of a service commission or any senior officer (the CoP alone at this time) alone, which are granted such powers by the Constitution.

CLYDE WEATHERHEAD

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