Under new personnel regulations, the Civil Service no longer has to wait for the outcome of a criminal trial to determine if staff who have been arrested and charged should lose their jobs.
In the past, civil servants facing criminal prosecution were suspended on full pay, sometimes for several years, as their cases wound their way through the courts. Now, under new government employment rules, gross misconduct – whether criminal or otherwise – will result in a civil servant being fired once an in-house investigation has been completed.
The change to the Personnel Regulations of the Public Service Management Act effectively gets rid of a provision that can lead to a civil servant being placed on required leave.
Deputy Governor Franz Manderson told the Compass that disciplinary procedures are activated within the civil service in cases of “gross misconduct, misconduct, or significant inadequate performance”.
Under the previous regulations, which had been in place for 19 years, civil servants accused formally of a criminal offence were placed on fully paid ‘required leave’. If they were convicted, they were dismissed. If they were acquitted, they returned to their job or to a post on the same pay range.
Manderson said the longest case of required leave of which he was aware was five years, after which the individual was found not guilty.
The deputy governor also acknowledged that, under the previous regulations, “it was difficult to get a poor performer out the door”, but amendments relating to “inadequate performance” enable more accountability of staff.
Quicker processing of gross misconduct cases
Deputy Chief Officer Lauren Knight explained that the new regulations expand the list of what is considered ‘gross misconduct’. The previous regulations had one section for misconduct involving criminal behaviour and another for misconduct not involving criminal behaviour.
The section of the rules dealing with criminal activities has been repealed, meaning civil service bosses are no longer “at the mercy of the courts”, Knight said, when it comes to dealing with staff accused of crimes.
“From an employment perspective,” she said, “what we’ve done by repealing regulation 41, is we have essentially transferred that decision making power from the courts to us, so when appointing officers catch wind of allegations, they are now able to conduct their own administrative investigation into those allegations; not to prove criminality, but to determine whether the employee … has misconducted themselves.”
She said the civil service, when investigating if an employee has committed gross misconduct, applies the “civil standard, not the criminal standard” in such cases.
“We’re not seeking to determine proof beyond a reasonable doubt,” she added. “What we’re trying to determine is, using the balance of probability, is it more likely than not that the employee misconducted themselves when they did what they’re alleged to have done?”
Knight said the investigations would not “go solely off of the allegations, rumours and speculation”, but would involve gathering relevant evidence that would then be presented to the employee, who would be given a “reasonable period of time to provide an explanation”.
If it is determined that the employees has committed gross misconduct, they would be fired forthwith.
‘No such thing as suspension’
The effect, Knight said, is that “after 31 March, there’s no such thing as suspension”.
However, individuals on required leave up to 31 March will remain suspended under the old regulations.
Manderson could not give an exact figure of how many civil servants are currently on required leave, but said it was merely “a handful”.
Civil servants facing dismissal can appeal to the chief officer in the Portfolio of the Civil Service or the Civil Service Appeals Commission.
Knight noted that in cases where an employee is fired and subsequently acquitted in court, the civil service is no longer legally obliged to re-employ them.
Widespread training of appointing officers had taken place across the civil services, as well as townhall meetings to inform all employees of the new rules.
Manderson insisted that the “long overdue” regulation changes were “not a strategy to get rid of people quickly”, but rather a means to ensure that employees “who don’t pull their weight can be held accountable” and receive the training and support they need “to turn their performance around”.
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