Sankwasa On Knee-Jerk Dismissals [analysis]

Kindly allow me space in your respected newspaper to comment on the current knee-jerk dismissals being made in terms of the Public Service Act 13 of 1995 (national level ministries), Public Service Act 2 of 1980 (regional councils) and in terms of the local authorities’ standardised human resources management policies.

Fair and unfair dismissals in the Public Service

Are dismissals done in terms of sections 24 and 14 of the Public Service Act 2 of 1980 and 1995 fair or unfair?

The question for consideration and debate in this article is whether dismissals done in terms of section 24 of the Public Service Act 13 of 1995 (National level ministries), section 14 (6) (a) of the Public Service Act 2 of 1980 (repealed at national level but still entrenched at Regional Councils level) as amended by Public Service Act 24 of 1990 and the local authorities’ standardised human resources management policies are fair or unfair.

There is currently a knee-jerk dismissal practice in the Public Service in terms of section 24 (5) (a) of the Public Service Act, 1995 (Act 13 of 1995), section 6 (a) and the Local Authorities Human Resource Management Policies, which are always classified as abscondment dismissals or an employee dismissing himself or herself from service.

Many public service employees have had their services terminated in accordance with this section of the legislation which seems controversial or not to be well debated and is least understood by most if not all supervisors and accounting officers in the public service.

The Namibian newspaper of Tuesday 22 April 2014 carried an article titled “Former Karibib CEO loses dismissal appeal,” in which the CEO was dismissed due to her absence from duty for a period exceeding 30 days.

The article stated, “In terms of the Local Authorities Act, in a section nearly identical to a part of the Public Service Act, an employee of a local authority who absents herself from duty without approval for more than 30 days is deemed to have been discharged from the service of a local authority on account of misconduct.”

My understanding of this decision is that the dismissal of the CEO or any employee in terms of the policy or legislation was or is purely on the basis or account of misconduct not on account of her absence from duty.

By writing this article I want to generate debate from all learned friends from administrative law, labour and general legal background to help chart the way forward as many unfortunate and innocent employees have lost their employment through such a misunderstanding or misinterpretation of the said piece of legislation.

By saying so I do not mean my interpretation is the only correct one but I simply want all colleagues and labour consultants to engage in a meaningful debate and analysis.

Section 24 (5) (a) of PS Act 13 of 1995 and 14 6 (a) of PS Act 2 of 1980 as amended provides that, “Any staff member who, without permission of the permanent secretary (or Chief Executive Officer) of the office, ministry or agency in which he or she is employed (i) absents himself or herself from his or her office or official duties for any period exceeding 30 days shall be deemed to have been discharged from the Public Service on account of misconduct with effect from the date immediately succeeding his or her last day of attendance at his or her place of employment.”

Based on this section and the current understanding of any period exceeding 30 days many staff members have lost their employment without being charged and arraigned before a disciplinary hearing as all such absences are regarded as abscondment.

Paragraph 15.2 of the Public Service Staff Rules (PSSR E.X Part 1) governing Misconduct and Disciplinary Action provides for abscondment and states “staff members who are absent for a period exceeding 30 days on account of being detained or arrested and serving a prison sentence shall therefore be deemed to have been discharged from the Public Service in terms of section 24 (5) (a) (i) of the Act and a disciplinary hearing is therefore not necessary.”

Given the above legal and policy provisions: How substantively and procedurally fair is such a dismissal in terms of our existing labour legislation, particularly section 33 of the Labour Act and the requirement of natural justice which requires hearing both sides of a case before a decision is made?

The fundamental questions to be considered here are: (a) What constitutes the exceeding 30 days? (b) Which days are these 30 days constituting the 30 days period provided in section 24 (5) (a) of PS Act 1995? (c) Are these 30 days stated in the PSA working days or calendar days? The Public Service Staff Rules state that the 30 days are calendar days without referring to any legal provision relating to such interpretation or source of such understanding. (d). Is it fair to dismiss an employee without conducting a disciplinary hearing where an employee is given an opportunity to state hisher side of the case or state reasons for such absence from duty? (e) Does the unauthorised absence from duty automatically constitute abscondment and hence a dismissal? (f) Is unauthorised absence from duty the same as abscondment from duty? (g) When does unauthorised absence from duty become abscondment from duty?

Provisions of the Public Service Acts 1980 and 1995 and Local Authorities Act, 1992 provisions

It is quite clear the current Public Service Act does not in any way define the term “Day or Days.” Neither does the Acts clearly state the 30 days mentioned in said sections of the legislation are calendar or working days.

To therefore read such days as calendar (consecutive) days when considering the absence of an employee from duty might not be correct. I do understand that interpretation of statutes could be by grammar, inference or circumstantial implications.

However, it is aisable to appreciate that the only piece of legislation currently on Namibian statute books defining the term Day or Days is the Labour Act, 2007 which states that “a week in relation to an employee, means a period of seven days within which the working week of that employee falls” as per section 8 (1) (l) of the said Act. Moving from this clear provision there can be no misunderstanding as to whether the “absence for a period exceeding 30 days are consecutive or working days.”

It is quite clear that the period of 30 days in relation to an employee should be working days not calendar days.

To make such days to be consecutive days could make the employer to include public holidays and weekends in such period of absence, which would be against sections 21 and 22 of the Labour Act 2007.

The absence of an employee from duty should further be read with the Public Holidays Act, 1990 (Act No. 26 of 1990) as no employee is expected to report for work during the public holiday or weekend unless by arrangement and agreement with the supervisor (which work is classified as overtime work) or if the particular employee works a shift duty.

It might also not be correct to consider the 30 days as consecutive or calendar days when a staff member is on unauthorised leave from duty but consider working days only where a staff member is on approved leave of absence. Sections 39 to 41 of the Labour Act 1992 just like sections of the Labour Act 2007 provides under sections 21 (1)) that “An employer must not require or permit an employee to perform work on a Sunday, except as provided in this section and 22 (1) states that “An employer must not require or permit an employee to perform any work on a public holiday, except as provided in this section” while section 23 (1) Provides that “For the purpose of this section ‘ordinary work week’ means the number of days per week ordinarily worked by an employee.”

It takes simple reasoning in terms of administrative justice that when staff members apply for leave of absence to supervisors and such leave are approved, all weekends and public holidays are excluded from the calculation of leave of absence. What justification is there now to include or why include such weekends and public holidays when it is unauthorised leave from duty? Which legislation provides that when a staff member goes on unauthorised leave such leave of absence should include weekends and on public holidays?

Dismissals resulting from misconduct

Section 24 (5) (a) or 14 (6) (a) of PS Acts provides that “shall be deemed to have been discharged from the Public Service on account of misconduct.” It should therefore be correct to understand this section in relation to section 33 of the Labour Act 2007 which provides that “An employer must not, whether notice is given or not, dismiss an employee – (a) without a valid and fair reason and (b) without following – (i) the procedures set out in section 34, if the dismissal arises from a reason set out in section 34 (1) or (ii) subject to any code of good practice issued under section 137, a fair procedure, in any other case. Section 24 (5) (a) of the PSA states that such dismissal or discharge in on account of misconduct.

So all dismissals done on account of misconduct, like it is stated in section 24 (5) (a) of the PSA should recognise the provision of section 33 of the Labour Act.

The said Section 33 of the Labour Act 2007 requires charging the employee with misconduct to prove the substantiveness or reasons for the dismissal and arraigning the employee before an independent or impartial disciplinary committee established in terms of section 26 (5) of the Public Service Act 1995 if the dismissal is done on account of misconduct. J

udge Collins Parker in his book Labour Law in Namibia on page 140 states that “By a parity of reasoning the rules and principles of law developed by the courts with regard to dismissal arising from redundancy under section 50 of the repealed Labour Act 1992 must also apply with equal force to the interpretation and application of section 33 of the Labour Act 2007.” It should be remembered that section 33 (4) of the Labour Act 2007, requires that in any proceedings concerning a dismissal, (i) the employee must establish the existence of a dismissal and (ii) if the existence of the dismissal is established, it is presumed, unless the contrary is proved by the employer, that the dismissal was unfair.

The employer is thereafter required to prove the dismissal was fair as based on a valid and fair reason and a fair procedure was followed in dismissing the employee.

Now what fair reason and procedure exist in a situation where any employee has not been charged with misconduct for absence from duty without a valid leave of absence and without being given an opportunity to state hisher reasons of such absence?

Therefore all absences not constituting desertion should be dealt with in accordance with Section 25 (1) (o) of the Public Service Act 1995, which stipulates, “Any staff member shall be guilty of misconduct if he or she absents himself or herself from his or her office or official duties without leave or valid cause.”

Why then does the employer (Public Service and Local Authorities) not charge the particular employee with misconduct instead of summary dismissal, where there is no opportunity afforded an employee to state hisher side of the story by explaining the reasons for the absence from duty? The audi alteram partem (natural justice) principle requires hearing both sides of the story.

It is my understanding that section 24 (5) (a) (i) and 14 (6) (a) of the PS Acts do not refer to abscondment as abscondment means to escape or desert according to the Collins Co-Build English dictionary while the Oxford Modern English Dictionary defines abscondment as “depart hurriedly and furtively, especially unlawfully or to avoid arrest.” Unauthorised absence from duty cannot in anyway constitute abscondment in terms of section 24 (5) (a) (i) of PS Act. It is my considered understanding that the only instances where any employee should be regarded as having absconded from duty and having forfeited hisher right to a substantive and fair procedure required in all dismissal cases as provided for in the Labour Act is when such an employee acts in terms of section 24 (5) (a) (ii) of PS Act where heshe absents himself or herself from duty and assumes employment elsewhere or where hisher whereabouts cannot in anyway be established even after several provable attempts by the employer to establish such whereabouts.

It should be understood the circumstances surrounding absences from duty are not cutting across all unauthorised absences from duty exceeding 30 days.

Once the employer notices the absence of an employee from duty such employer must make all reasonable efforts to trace or establish the whereabouts of the employee. It is not every absence from duty, which is an abscondment or desertion.

The labour legislation requires that all dismissals must be based on substantive and procedural fairness not knee-jerk decisions. It aisable that the Public Service Act 1995 and Local Authorities Act 1992 should not be read in isolation from the Labour Act 2007 and the Constitution which are the paramount laws on all labour matters in Namibia.

Source : New Era