FORMER PUBLIC OFFICER UNJUSTLY DEPRIVED OF HIS PENSION

Case notes investigated by the Parliamentary Ombudsman

N0040

The complaint

A former public officer who subsequently became a Transport Malta employee felt aggrieved that he was unjustly deprived of his Treasury Pension when he retired in 2012, while colleagues in his position were granted such pension.

The investigation

From documentary evidence requested by this Office, complainant was already providing a service to the Police Department as far back as July 1977 – on loan from Enemalta “…with the Police Department as Bus Despatcher …” Complainant continued to provide a service to Government uninterruptedly and on the advice of the Public Service Commission, he was appointed as Bus Despatcher in the Police Department with effect from 1 April 1979. He was subsequently posted with the then Public Transport Authority (now Transport Malta) and on 18 June 1997 signed a declaration whereby he opted to be a permanent employee of that Authority. This decision was taken in the context of agreements/decisions taken earlier in respect of former public officers who joined parastatal entities. In fact a Government document (MPO/44/95, GS/MF, dated 16 February 1996) stated that:

“Public officers providing a service to the Entities and who are entitled to a Treasury pension (because of their having been in government employment before 15 January 1979) retain their right to such pension irrespective of whether they remain with the Entity or return to the public service in case of redundancy or privatisation. The period of service with the Entity shall count for pension purposes, however the relative details of the workings of such pension have to be discussed further”.

Moreover, a side letter dated 4 October 1996 signed between the Public Transport Authority and Union Ħaddiema Magħqudin (UĦM) entitled:

“Offer of Permanent employment with the Public Transport Authority of public officers detailed with the Authority for duty as Bus Despatcher (Transport Malta Assistant)” stated as follows:

“The arrangements regarding Employees with Government Entities (vide copy of attached letter dated 16 February 1996) shall apply in respect of those public officers who accept the offer of permanent employment with the Authority in terms of this agreement”.

Yet it resulted that Transport Malta had no record of this side letter. In fact this Office had to provide a copy of this document which it had received from the Office of the Prime Minister. Further documents perused by this Office included one from Employment and Training Corporation (ETC) which showed that complainant was in full-time continuous employment with Government and/or Public Transport Authority/Transport Malta from 25 July 1977 till his retirement in 2012.

However, despite the fact that there was no evidence of any letter of resignation or dismissal or any other form of a break in service in complainant’s records as OPM HRIMS records search reported as follows:

“The employee you are looking for has resigned”.

This unsupported statement was disproved by all the other documented evidence listed above.

Transport Malta in its initial comments on this complaint, submitted a list of “Public Officers detailed with the former Malta Transport Authority (APT) to be detailed with the Authority for Transport in Malta (TM)” which list had been received from the Office of the Prime Minister in April 2010. Complainant was not included in this list. Transport Malta’s records also showed complainant’s declaration of his option to take up a permanent appointment with the Public Transport Authority. In respect of its not having initiated any action for complainant’s treasury pension when complainant retired in 2012, it stated that it did not have any claim from complainant to this effect and argued that the personal record sheets of public service employees are kept by the Public Service. Transport Malta only had a copy of the document referred to above regarding complainant having been attached (on loan) with the Police Department with effect from 25 July 1977.

Section 8C of the Pensions Ordinance safeguards the pension rights of former Government employees who before 1 April 2002 took up permanent employment with the Public Transport Authority/Authority for Transport in Malta. Transport Malta did not prepare complainant’s pension papers when he was due to retire in 2012.

In June 2013 the facts listed above were brought to the attention of Transport Malta and of the Public Administration HR Office (PAHRO) and the Ombudsman requested them to inform him why on the basis of the above facts, complainant should not have been granted a service pension.

PAHRO’s reply, copied to Transport Malta stated that in terms of the Pensions Regulations and of the Public Service Management Code (PSMC) –

“when an individual is employed within the Public Service on casual/part-time basis (i.e. not through the PSC) and subsequently this individual is appointed to a grade/position on a full-time basis without a break of service, the individual concerned would, on retirement, be entitled to a treasury pension, provided that during his casual/part-time employment he worked more than half the normal working hours of his full-time counterpart.”

After perusing complainant’s records it concluded that complainant satisfied all the requirements under the Pensions Ordinance and PSMC and was to be entitled to a Treasury Pension.

The Ombudsman waited for the reactions of Transport Malta but despite a reminder which including drawing the attention of the Chairman/CEO of the entity as to the urgency of the matter, the entity failed to react.

Considerations and comments

The Ombudsman considered that normally it is the duty of management to initiate the process of preparing treasury pension papers of entitled officers before an employee retires, so that the pension is issued in time on retirement. The reason given by Transport Malta as to why this was not done suggested that the entity did not assume such role unless it had a claim. But what was more important, was a clear indication of the lack of proper personnel records at Transport Malta – at least in respect of complainant’s record of service besides not having a copy of an important document regarding conditions of service of former Government employees who worked with the entity. Transport Malta considered complainant as one of its employees without any treasury pension rights.

Transport Malta’s failure was further aggravated by its inertness when faced with the facts which this Office presented to it on 12 June 2013 and which clearly suggested that complainant was entitled to a Treasury Pension. The entity did not deign to reply to this Office, despite a reminder and also despite the fact that the attention of the highest authority at the entity was personally drawn to the urgency of this case on 1 August 2013. Nor did Transport Malta react when PAHRO informed it that it had sought legal advice and confirmed complainant’s entitlement to a Treasury Pension.

This attitude attracted strong criticism from this Office.

The victim of this gross failure on the part of Transport Malta was the complainant who had been deprived of his Treasury Pension for over sixteen months, including loss of interest that would have accrued on the amount of pension due to him including interest he could have earned on the sum he was entitled to as a result of commutation of his pension.

When Transport Malta failed to react despite reminders as to the urgency of the matter, the Ombudsman concluded his Final Opinion on the complaint.

The Ombudsman’s conclusions and recommendations

In the Ombudsman’s opinion here was a failure on the part of Transport Malta which unjustly deprived complainant of his Treasury Pension for over sixteen months. Complainant’s right to such pension had been confirmed by PAHRO on the basis of his uninterrupted service to Government since 1977 which was followed by his appointment as a public officer after 15 January 1979. When complainant opted to be permanently employed with the Public Transport Authority (eventually Transport Malta), this was on the basis of a prior agreement between Government and the Union representing that category of employees, that he retains his (Treasury) pension rights – an agreement which was sanctioned by an amendment to the Pensions Ordinance. The Ombudsman therefore upheld the complaint and strongly criticized the entity for failing to take immediate action especially when faced with facts. The Ombudsman considered the Authority’s attitude as insensitive when it deprived him of his pension and showed no urgency to remedy its failure even when this was brought to the attention of senior officials. The investigation also revealed a serious lacuna in the personal records of Transport Malta’s employees and it was not excluded that this was still the position in respect of employees in complainant’s position.

By way of remedy, the Ombudsman recommended that Transport Malta:

  • submits, with immediate effect, complainant’s treasury papers to the Treasury Department;
  • apologizes in writing to complainant for its failure;
  • compensates complainant for loss of interest on the amount due to him as from the date of his retirement until the pension was finally issued to him;
  • furthermore pays complainant the sum of €500 in consideration of the pain, suffering and stress unnecessarily caused to him by the Authority’s failure; and
  • takes immediate steps to update its personnel records including also data on retained rights of former public officers now permanently employed with it.

Follow up

Transport Malta immediately initiated the process for submitting complainant’s pension papers to the Treasury Department. It also accepted to pay interest on the amount of pension and gratuity due to complainant starting from date of his retirement as recommended by the Ombudsman and to update its records. However it initially disagreed to compensate complainant for pain suffering and stress, arguing that these were potential and subjective in interpretation.

The Ombudsman informed Transport Malta that this was further evidence of insensitivity on the part of Transport Malta. Following this, Transport Malta accepted to also pay such compensation, thus implementing the Ombudsman’s recommendations in full.

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