EVERY employer has to deal with the problem of non-performing, indisciplined or errant employees.
In the public sector this problem is more difficult to tackle than in the private sector because Article 135 of the Federal Constitution and derivative laws invest employees of public services who are confirmed in their posts with an impressive array of procedural safeguards during disciplinary proceedings.
These procedural safeguards are a necessary part of the public servant’s right to due process.
However, they do delay and often defeat necessary measures to weed out corrupt, inefficient or non-committed employees.
In the universities, as in the public services, the delays and technicalities of disciplinary proceedings encourage University Boards to resort to disciplinary proceedings as a matter of last resort and to deal with errant employees in the following alternative ways:
Letter of caution
As an alternative to commencing disciplinary proceedings, the head of the department concerned may send to an employee a written ‘reminder’ or a ‘letter of caution’ to rectify some unsatisfactory aspect of his character or performance.
The university is empowered to transfer an employee laterally within the same scheme of service. This power is derived from the employment contract and can also be said to be part of the employer’s prerogative.
Unlike the private sector, in the public sector a lateral transfer does not amount to a punishment or a reduction in rank. For this reason the procedural rights available to those facing a disciplinary charge are not available to transferees. Failure to comply will amount to ‘insubordination’.
Reversion to former post On the state of existing law, reversion to a former post from a higher but temporary post does not amount to a reduction in rank and there is no right to a prior hearing: Badrul Ahmad v Govt. (1987).
Employees who are not on the permanent establishment but are hired for a contract period may be terminated by giving them the required contractual notice as laid down in the contract of employment or a month’s salary in lieu of notice.
Termination may be for any reasons whatsoever (which reasons need not be stated).
On the present state of the law, no disciplinary proceedings or opportunity to explain one’s conduct are necessary.
However, looking to the horizon, one takes note that the principle of ‘legitimate expectation’ and the ‘duty to act fairly’ are taking roots.
The case of Dr Chandra Muzaffar v University of Malaya (2002) indicates that any abuse of power in this area may result in an award of damages.
Termination in the public interest This power, previously known only to the public services under the General Orders, has now been made available to universities since November 2000 by section 9 of Statutory Bodies (Discipline & Surcharge) Act 2000 (Act 605).
The initial decision to terminate is made by the Board (and not by the Disciplinary Committee). The papers are then submitted to the pensions authority for further processing in its discretion.
Before an officer is terminated in the public interest, he has a right to be heard. Termination in the public interest does not amount to dismissal.
This means that an officer terminated in the public interest will still be entitled to his pension.
Non-confirmation of probationary officer
In relation to employees who are yet to be confirmed, the university may extend the employee’s probationary period or give to a probationary employee prior notice that at the end of the probationary period the university does not wish to continue with his/her service.
The existing practice is that the employee is given adequate time to respond to the university’s notice. After considering the officer’s reply, the university may terminate the employee’s service.
Such a termination does not amount to dismissal. However, if the refusal to confirm and the subsequent termination are based on unsatisfactory conduct or on any charges of misconduct, then natural justice demands that a disciplinary trial must be conducted.
In lieu of disciplinary proceedings, it may be desirable for the disciplinary panel to recommend that the Board should, with the consent of the pensions authority, require the employee to retire compulsorily.
Unlike section 11 (on termination in the public interest) which mandates a prior hearing, section 13 on compulsory retirement says nothing about the procedure to be followed.
It is submitted that equality before the law under Article 8 of the Federal Constitution and principles of natural justice will still apply and a prior notice with a right to make representation must be given.
Invitation for optional retirement: Sometimes the university, when faced with the delinquency of a senior officer, is reluctant to act against him and, out of compassion, invites him to submit his papers for optional retirement.
This is a risky move and can land the University in potentially embarrassing situations.
For example, the employee may apply for optional retirement first but later as an afterthought withdraws his application. He may claim threat, duress and undue influence.
If the disciplinary proceedings are revived, the employee may claim double jeopardy or condonation or estoppel.
The university’s letter of recommendation to the Public Services Department may work against the university in the courts.
The purpose of surcharge is to enforce financial responsibility, honesty and efficiency. Another aim is to compensate the university for losses suffered as a result of an officer’s negligence, dereliction of duty, dishonesty, carelessness or inefficiency.
Any employee or ex-employee of a statutory body may be subjected to an order of surcharge.
A person who has retired, resigned or been terminated or dismissed may be liable in the same manner as a serving officer.
The Board shall serve a written notice on the officer concerned. The officer concerned has 14 days to show cause in writing.
No oral hearing is required but there is no legal bar if the Board wishes to permit an oral hearing.
The Board shall deliberate on the written reply of the officer and make a decision. The decision on the surcharge must be communicated in writing to the officer. No appeal to the Minister or the courts is allowed.
However, the subject of the order can always apply to the Board for reconsideration and the Board has the power to withdraw any order or to reduce the amount of surcharge.
A surcharge is a civil debt owed by the officer to the university. It can be recovered by deduction from salary or pension by equal monthly installments not exceeding one fourth of the total month salary or by a civil suit in a court of law.
An order of surcharge does not bar concurrent or subsequent disciplinary proceedings.
In lieu of, or in addition to disciplinary proceedings, an officer’s case can be brought to the attention of authorities charged with enforcing the criminal law.
One disadvantage of this is that once criminal proceedings are instituted (i.e. a person is brought to court) a disciplinary charge on the same ground as the criminal charge cannot be instituted till the employee is either acquitted, discharged or convicted – a process that can take years.
All in all, disciplinary proceedings against staff are the most unpleasant, yet unavoidable, aspect of university governance.
The law needs a thorough review to balance rights with responsibilities.
REFLECTING ON THE LAW by SHAD SALEEM FARUQI
Shad Saleem Faruqi is Emeritus Professor of Law at UiTM and Visiting Professor at USM.
Source: The STAR Online Home News Opinion Wdenesday January 25, 2012