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14 July 2006: No 40/06

SPOTLIGHT ON PSAP DISCIPLINE

MISCONDUCT THAT COULD ALSO BE A CRIMINAL OFFENCE

It is often the case that PSAP misconduct constitutes both a breach of the disciplinary code and a criminal offence.

In this regard it should be emphasised that the Labour Court has established that the adjudicatory processes before a disciplinary enquiry and a criminal court respectively are independent and have different social objectives.

This is further endorsed in clauses 2.6 and 2.7 of PSCBC Resolution 2/99 as amended by PSCBC Resolution 1/2003 (Disciplinary Code and Procedure for the Public Service), which read as follows:
“2.6 If an employee commits misconduct that is also a criminal offence, the criminal procedure and the disciplinary procedure will continue as separate and different proceedings.

2.7 Disciplinary proceedings do not replace or seek to imitate court proceedings.”
Labour Court decisions have ruled that the criminal courts seek to protect society against wrongdoers, while in the case of the employment relationship, the employer aims to protect his business interests. This entitles an employer “to take a different view” of an employee’s conduct than that adopted by a judge or magistrate.

Moreover, the criminal courts apply a standard of proof, that of satisfaction beyond reasonable doubt that the offence was committed, which does not bind employers.

An employer need only be satisfied on a balance of probabilities that the offence was committed.

In conclusion it is emphasised that it is not the function of an employer to institute criminal action against an employee.

The fact that the DOD as the employer lays a criminal charge against an employee ito paragraph 12.5.1 of the Treasury Regulations via the Military Police Agency and/or the SA Police Services, does not bar the holding of a disciplinary inquiry. It is furthermore emphasised that an employee’s acquittal in a criminal court is no bar to the holding of a disciplinary enquiry by an employer.

All allegations of misconduct against PSAP that constitute both a breach of the disciplinary code and a criminal offence must therefore be reported to the Directorate Labour and Service Relations via the Regional Labour and Service Relations Officers (Multi- skilled Functionaries), in order to enable the Head of Department (Secretary for Defence) to take the necessary disciplinary action ito the Disciplinary Code and Procedures for the Public Service.

FINANCIAL MISCONDUCT

In accordance with the Public Finance Management Act, (PFMA) 1999, the accounting officer for a department (Head of Department – Secretary for Defence) must take effective and appropriate disciplinary steps against any official in the service of the DOD who contravenes or fails to comply with a provision of the PFMA.
Paragraph 4.1.2. of the Treasury Regulations furthermore rules that an accounting officer must ensure that disciplinary proceedings are instituted within 30 days against an official who is alleged to have committed financial misconduct.
The Secretary for Defence as the accounting officer of the DOD, delegates to the Chief Financial Officer (CFO) the powers that relate, inter alia to the monitoring of financial misconduct in the entire DOD.
Subsequently the Directorate Financial Control Services (DFCS) (Sub-Directorate Compliance Management) has been created on the establishment of the Finance Management Division to provide a control service for the CFO.

The Financial Misconduct Management Process of the DOD requires continuous identifying, exercising, evaluating, reporting, disciplining, giving feedback, taking preventative measures and exercising internal control within the entire DOD.

Key aspects of the financial management process are

• all incidents of misconduct identified as financial misconduct must be reported;
• effective and appropriate disciplinary action must be taken; and
• preventative measures must be in place.

Section 45 of the PFMA rules that all officials within their areas of responsibility must ensure that the system of financial management and internal control established for the department is carried out within their area of responsibility.

When an employee is alleged to have committed financial misconduct, the Commander/Manager/Super-visor of the transgressor must ensure that

• disciplinary action is taken against the individual, within 30 days upon discovery of the act of misconduct in accordance with the relevant disciplinary measures applicable to the transgressor’s appointment;
• the matter be simultaneously reported to the CFO (DFCS); and
• a criminal charge be laid against an employee ito paragraph 12.5.1 of the Treasury Regulations via the Military Police Agency and/or the SA Police Services.

On finalisation of disciplinary proceedings, the CFO (Sub-directorate Loss Administration) will take action to recover the monies involved from the official concerned, if that official is liable in law.

PRECAUTIONARY SUSPENSION/TRANSFER OF PSAP AS A RESULT OF SERIOUS MISCONDUCT

Should the alleged misconduct of PSAP warrant suspension/transfer, clause 7.2 of Public Service Co-ordinating Bargaining Council (PSCBC) Resolution 1/2003 (Disciplinary Code and Procedure for the Public Service), provides for the following:

• “The employer may suspend an employee on full pay or transfer the employee if
  -the employee is alleged to have committed a serious offence; and
• -the employer believes that the presence of an employee at the workplace might jeopardise any investigation into the alleged misconduct, or endanger the well- being or safety of any person or state property.
• A suspension of this kind is a precautionary measure that does not constitute a judgement, and must be on full pay.
• If an employee is suspended or transferred as a precautionary measure, the employer must hold a disciplinary hearing within a month or 60 days, depending on the complexity of the matter and the length of the investigation. The chair of the hearing must then decide on any further postponement.”
• There are essentially two aspects to consider when transferring/suspending an employee. These entail
• reasonable suspicion of misconduct: Transfer/suspension may be appropriate once sufficient investigation has established at least a reasonable basis for suspicion that alleged disciplinary misconduct may have occurred. Therefore a decision to transfer/suspend should not follow as a mere automatic consequence of suspicion; and
• reasonable belief that the employee may interfere: If there is a reasonable basis for believing that the presence of the employee at the workplace might interfere with the investigation, the witnesses and evidence, the transfer/suspension of the employee should be a last resort to ensure the continued progress of the disciplinary investigation.

A decision to suspend/transfer an employee is not to be taken lightly. It must be thoroughly weighed against the available facts and circumstances pertaining to each case. The following criteria may be used:

• The employee concerned can prejudicially interfere with the investigation.
• The employee concerned is in a position to embezzle/manipulate evidence.
• State witnesses may be interfered with and influenced or blackmailed.
• The chances are good that the employee might continue with the misconduct.

Furthermore it is emphasised that the transfer of an employee or the re-assignment of duties should always be given priority over precautionary suspension in order to curb expenditure where salaries are paid for no services rendered. Requests to the Directorate Labour and Service Relations (DLSR) for precautionary suspension of PSAP should therefore always include proper motivation as to why an employee cannot be transferred to another work location or re-assigned to other duties as a precautionary measure.

In order to assist and direct Commanders/Managers/Sup-ervisors in dealing with allegations of misconduct of PSAP in terms of the Disciplinary Code and Procedures for the Public Service, a Standard Operating Procedure (SOP) was issued by the Chief Human Resources Support (SOP – C HRS/DLSR/04/01) on 26 November 2001.

Enquiries in this regard as well as the reporting of allegations of misconduct must in all instances be directed to the DLSR via the Regional Labour and Service Relations Officers (Multi-skilled Functionaries).