CLAIM BY AN EXECUTIVE SECRETARY OF A LOCAL COUNCIL TO A HIGHER GRADE IN THE PUBLIC SERVICE

Case notes investigated by the Parliamentary Ombudsman

M0390

The complaint

An Executive Secretary of a Local Council claimed that she was unfairly, and contrary to the provisions of the Public Service Management Code (PSMC), denied tenure in Salary Scale 4 in terms of Section 1.3.7.1 of this Code.

The second indent of this section states as follows:

“Public officers in a substantive grade below Scale 4 who satisfactorily perform duties for six (6) years in the top executive position of an Authority or public entity, shall be offered tenure as Officer in Grade 4”.

In essence complainant based her claim to Officer in Grade 4 in terms of the above provision, because:

  • she had been satisfactorily performing duties as Executive Secretary of a Local Council for over 18 years;
  • her substantive grade was below Scale 4 (Principal in Salary Scale 7);
  • the position of Executive Secretary is a “top executive position (…Executive, Administrative and Financial Head) of … Local Council…”; and
  • the PSMC section does not leave room for interpretation. In no part of the second indent did it state – as is argued by Public Administration HR Office (PAHRO) – that to have tenure in Grade 4 on the basis of this provision, one has to perform work in a grade comparable to Scale 4.

Findings and considerations

The issue in this case was whether PAHRO had, in complainant’s case, correctly interpreted (its own) PSMC provisions.4 6

PAHRO argued that the second indent of section 1.3.7.1 is specifically targeted at public officers, in a substantive grade below Scale 4 of the Public Service Salary Scales, who however perform higher duties creditably, and at least comparable to Scale 4 of the Public Service Salary scales, for at least six (6) years in a position within the top echelons of an Authority or a public entity. It added that for this reason the relative PSMC provision benchmarks performance of duties at Scale 4 level. In contrast, the position of Executive Secretary of a Local Council is pegged to Salary Scale 7/6/5 (depending on the size of the Council) of the Public Service Salary Scales. PAHRO further argued that complainant had not performed duties at a level comparable to Scale 4 and therefore she was not entitled to benefit from this provision.

On her part complainant insisted that this argument was built on a false premise, since the quoted PSMC provision does not mention that one has to have been performing duties not below Scale 4 of the Salary Scales.

The Ombudsman noted that it was a fact that, as contended by complainant, the second indent to section 1.3.7.1. does not specifically mention that the duties performed must be at Salary Scale 4 or higher. However, in the Ombudsman’s opinion, this provision had to be interpreted in its context. The above quoted provision was only one of the many examples listed under section 1.3.7.1 of how the opening statement of the said section should be implemented. The opening statement of this section stated as follows:

“1.3.7.1 Officers who are appointed to certain higher management positions in a salary scale which is higher than their substantive grade will be appointed to the higher substantive grade on completion of six (6) years satisfactory performance in the respective position … as explained hereunder.”

This overriding provision must be considered as the operative principle that had to be applied to what follows under it by way of examples. This section was clearly intended to compensate service by a public officer in a higher management position (and to a related higher salary scale) such that they are appointed to a substantive grade in the higher salary scale in which they have satisfactorily performed duties for (at least) six years.

There were also in the Ombudsman’s opinion, further points which had to be considered in this case:

  • complainant’s substantive grade was that of Principal which reaches a maximum Salary Scale 7. The duties she was performing at the particular Local Council were remunerable at Scale 7 – the lowest of the Salary Scales of Executive Secretary of a Local Council. It could not therefore be argued that complainant satisfied the requirements under the main paragraph of Section 1.3.7.1 – namely that she was appointed to a higher management position in a Salary Scale which was higher than her substantive grade; and
  • the second indent of section 1.3.7.1 on which complainant based her claim refers to “top Executive position of an Authority or public entity”. The terms “Authority” or “public entity” are not defined and one may hold different views as to whether a Local Council can reasonably be considered as an Authority or public entity for the purpose of this provision of PSMC. However one important guideline, and in the Ombudsman’s opinion, a valid one can be found in the Second Schedule of the Public Administration Act which lists the Government Departments.

In terms of this Schedule, the Director Local Government Department is recognised as the Director responsible for Local Councils, whose function is “To support and monitor the activities of Local Councils”. As such, and since the Local Council and its Executive Secretary are answerable to the Director Local Government who is the Head of the Local Government Department, it could not be validly argued that the second indent of section 1.3.7.1 was applicable to an Executive Secretary of a Local Council.

Conclusion

While the Ombudsman agreed that the wording of the second bullet of the provision of PSMC could have been better worded as to leave no doubt on its interpretation, the interpretation given by PAHRO was, on the other hand, a reasonable one and could not be considered as unjust or otherwise amount to maladministration.

However, even if, the relative provision should be more clearly worded, the Ombudsman regretted that he was not in a position to sustain the complaint.

 

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