A professional officer employed with the Enemalta Corporation (now Engineering Resources Limited) complained that he had been discriminated against because he had been accorded a punishment by management which was, in his opinion, too severe. He had been transferred to another section when a verbal warning or a fine would have been adequate, especially considering that the offence that he was charged with was the only one he had committed since he had joined the Corporation. Complainant also felt aggrieved that the Corporation did not respect the time limits imposed in the Collective Agreement to allow him to put forward justifications in his defence. He also insisted that the action taken in his regard was discriminatory since other employees who had committed far more serious abuse, had not been similarly punished but had merely been given a warning.
Complainant therefore requested that:
- his transfer be reversed;
- he will be compensated for the shift allowances and overtime lost because of his vindictive transfer, possibly politically motivated; and
- he is compensated for the unjust transfer he received because of the small infringement he committed.
Complainant admits that, while he was working from home, he had mistakenly sent a Corporation internal email to a friend’s email address. That email, containing information relating to work practices, ended up in a journalist’s blog, allegedly without complainant’s knowledge. The Corporation considered this fact to be in breach of the Collective Agreement and a serious offence since it constituted divulgation of Corporation information without authorisation. It strongly objected, his claim of improper discrimination and not being given a chance for a fair hearing.
From enquiries carried out by this Office it resulted that Enemalta had concrete proof from the IT records that the email in question originated from complainant’s email account. Confronted with this evidence and given adequate time to defend himself, complainant admitted his guilt and excused himself for forwarding an internal email outside the Corporation although he had just forwarded it to a friend and not to the media. He submitted that, whilst the act was deplorable and to be condemned, he thought his punishment in terms of a transfer was a way too harsh.
The Ombudsman considered that there was no issue as to complainant’s guilt. His admission was freely made after he had been given the opportunity to put up a defence. In the circumstances there was no need for the Corporation to refer complainant to a Disciplinary Board since the merits of the incident and complainant’s responsibility had already been clearly established. The Ombudsman noted that the Corporation was correct in maintaining that the sending of an internal email outside the Corporation constituted a serious breach of the Collective Agreement which lays down that all officer, irrespective of grade, are expected to be loyal to the Corporation. They should not at any time, during or after termination of their employment, divulge any information pertaining to the Corporation to anyone except during the ordinary course of their employment. The gravity of any breach of these basic rules is underlined by Article 11.3.2 of the Agreement that provides that “Officers not observing rules of confidentiality will be liable to disciplinary action which may include dismissal and/or prosecution in terms of the law”.
Consequently, once complainant himself had confessed to having committed the unauthorised disclosure, the Ombudsman could not criticise the decision of management to transfer him from his current position to another posting. The transfer could not be considered as punitive or vindictive. The Ombudsman could not criticise management, who was obliged to ensure that similar instances did not occur and was therefore required to remedy the situation immediately. The position occupied by complainant was one of great responsibility, requiring a certain amount of trust and reliability. The higher the post occupied by an employee, the greater will be the level of trust and degree of reliability that would be expected of him.
Complainant had alleged that he was a victim of political discrimination, even though no evidence was forthcoming on this score. The Ombudsman however made it clear to him that his Office could not investigate such allegations and, if complainant was convinced that the transfer was politically motivated, he had to raise the matter with the appropriate authorities.
The Ombudsman similarly could not embark on a comparative exercise of penalties imposed on employees for different misdemeanours. The appreciation of the gravity of the offence and of the punishment that should be meted out to offenders, lies within the discretion of the Corporation as employer. The Ombudsman would not interfere in the exercise of that discretion once it is clear that the punishment meted out to complainant was well within the maximum penalty of a discharge from employment laid down in the Collective Agreement for such an offence.
The Ombudsman declared that complainant had not sustained his complaint and therefore dismissed it.Case Studies