Case notes investigated by the Parliamentary Ombudsman
Failure on the part of Government to honour a commitment made to a public officer while on contract with a Government agency.
The complaint
A public officer in a substantive grade in Salary Scale 8 but who was on a definite contract with a Government agency in a position in Salary Scale 5, pleaded that Government had unjustly failed to honour a commitment made to him in writing to the effect that when his definite contract ceased to be in force, he would retain his Salary Scale 5 on a personal basis. When he reverted to the public service he was instead placed in Salary Scale 8.
The investigation
The investigation revealed that complainant, whose substantive post was in Salary Scale 8 (progressing to Scale 7) had, in May 2007, been detailed on grounds of public policy, and for an indefinite period, to provide a service with a Government agency and to enjoy a salary equivalent to Salary Scale 5. By letter dated 12 December 2007 the Permanent Secretary responsible for the agency informed him that following a Government decision, he was considered as Officer in scale with a salary compensable to his basic salary at the time, while retaining his substantive grade in the public service. Moreover, he was informed that in the eventuality that his contract would not remain in force, he would still retain this salary scale on a personal basis, apart from his substantive grade.
Complainant was forced to resign from his definite contract following an inquiry. Although he disagreed with the findings, he did not challenge it because in any case he was consoled by the assurance he had been given in writing that he would retain his Salary Scale 5 on a personal basis when reverting to his substantial grade.
This Office sought the comments of the Public Administration HR Office (PAHRO). PAHRO confirmed that in August 2007 complainant had been detailed for an indefinite period with the agency with a salary pegged to the maximum of Scale 5 in terms of the relative call for applications. Since the agency had a distinct legal personality, complainant was not a Ministry employee. It however argued that his indefinite status as Officer in Scale 5 was based on his engagement with the agency and as such “…could only subsist alongside and in conjunction with his engagement with [the agency] and it was not transferable to the Public Service.” PAHRO further contended that when complainant resigned, his detailing with the agency was revoked and he reverted to his substantive grade without forfeiture of his rights in that grade in terms of PSMC. This Code provided for only two instances where a public officer who has reverted to the public service from a public entity retains the basic salary he had at the entity, and none of these applied to complainant’s case. PAHRO concluded by stating that complainant was treated fairly and in strict consistency with standing policy.
Complainant rebutted that he had been forced to resign following a direction given by the Prime Minister. He considered the findings of the inquiry as unjust and unfair but stated that he did not contest them and accepted the Prime Minister’s decision for him to resign. He declared that he did this because he was comforted by the fact that the December 2007 letter assured him that he would retain Salary Scale 5 on a personal basis and therefore, salary wise he would not suffer financially.
Complainant challenged PAHRO’s statement that his Officer in Scale status was based on his engagement with the Agency and was subsistent alongside, and in conjunction with, his engagement with the Agency. He argued that this PAHRO statement was in conflict with the December 2007 letter.
PAHRO’s statement was supported by the then Principal Permanent Secretary who added that the December 2007 letter issued to complainant by the then Permanent Secretary in the Ministry responsible for that Agency “…was in line with the instructions and template issued by MPO to all ministries, and subject to the policies in place with respect to the granting of Officer in scale status”.
Article 1.5.2 of the Public Service Management Code (PSMC) refers to the “Reversion to the Public Service of public officers deployed with public entities”. Furthermore, Article 1.5.2.3 states as follows:
“Upon reverting back to the Public Service such Public Officers:
- will revert to their last Public Service substantive grade and will start receiving the corresponding salary;
- benefit from the prevailing conditions applicable in the Public Service;
- be posted in a Department where their professional skills and competencies are required;
- continue to be entitled to a Treasury pension, if they are of a pensionable status, as other public officers.”
Considerations
There was no contestation in respect of the following:
i. the complainant was detailed for an indefinite period with the Agency with a salary pegged to the maximum of Scale 5, while retaining his substantive grade in the public service which grade was in Salary Scale 8;
ii. he resigned his position in the Agency under pressure to do so from the Office of the Prime Minister, even if at that time he reserved his right to challenge the findings of the relative Inquiry which led to his forced resignation; and
iii. on 12 December 2007 he was officially and formally informed that following a Government decision he was considered as Officer in Scale with a salary comparable to his basic salary at that time while retaining his substantive grade in the Public Service. In the eventuality that his contract ceased to be in force he would retain the above-mentioned salary scale on a personal basis, apart from his substantive grade.
The Ombudsman noted that chronologically, the December 2007 letter followed the publication of L.N 51 of 2007 granting indefinite status to employees on a definite contract.
The Ombudsman considered the interpretation given by PAHRO to the 12 December 2007 letter. PAHRO’s interpretation emphasised that at that time employees/officers in the public service/public sector who were on a definite contract were given indefinite status as Officer in Scale on the basis of the definite contract they held. In the case of detailed officers (like complainant) his contract was turned into an indefinite contract to subsist insofar as the Officer remained with the entity. However, according to PAHRO, on reversion to the Public Service these officers were to revert to salary tied to their substantive grade to which they were appointed through the Public Service Commission – in line with PSMC. The Ombudsman however noted that there was no such condition attached to the official 12 December 2007 letter when he was forced to resign his position with the Agency he reverted to his substantive grade with a salary in Scale 8 even if subsequently he progressed to Scale 7 in line with the agreement applicable to his grade. The Ombudsman agreed with complainant’s argument that PAHRO stance in respect of his Salary Scale 5 as subsistent alongside, and in conjunction with his engagement with the Agency, as being in conflict with the 12 December 2007 letter. The Ombudsman considered it was difficult to follow this reasoning, he was of the opinion that there was only one indisputable interpretation of the 2007 letter – namely that Government informed complainant that he was considered as an ‘Officer in Scale’. This designation existed only in the Public Service and not at the Agency. Moreover, this letter went on to “assure” complainant that, on a personal basis, he would on cessation of his contract retain his Salary Scale 5 despite that he would still retain his substantive grade in the Public Service. There was no condition whatsoever attached to this commitment.
The Ombudsman also considered the undisputed fact that complainant resigned his contract under pressure from OPM and had moreover, no reason not to believe that in accepting to resign, complainant was comforted by the assurance, given to him in the December 2007 letter, that salary wise he would retain Scale 5.
If the December 2007 letter was intended to have a different meaning from this, it should have been worded differently. Moreover, if one was to accept PAHRO’s interpretation, then this was an example of poor letter writing. The Ombudsman was inclined to believe that this was not the case and that the letter was issued to complainant by mistake. This notion is supported by the view of the Public Service Commission on the matter that the letter was ultra vires. It is to be pointed out that in the course of the investigation, the Ombudsman had sought the views of the Public Service Commission in respect of the 12 December 2007 letter. The Commission had informed this Office that it had not made any such recommendation as required under Article 110 of the Constitution of Malta for complainant to be granted Officer in Scale Status. The relative letter was never referred to, or endorsed by the Commission and therefore considered that it was “ultra vires and had no validity at law”.
The PSC’s opinion can also be justifiably interpreted as implying that the Government had committed itself to granting Salary Scale 5, which in effect meant a promotion that was irregularly given since the advice of the Commission to this effect, had not been sought or received.
Irrespective of whether the December 2007 letter was erroneously issued to complainant or was drafted badly as to not reflect the Government’s intention, the fact remained that the letter became an element of the contract that determined complainant’s conditions of service. It unilaterally bound Government to guarantee complainant a definite remuneration in Salary Scale 5 both during and beyond his contract with the Agency – an obligation which Government was bound to honour. This was an unconditional commitment and Government could not avoid its obligation by pleading that the wording could have been better or that the letter was ultra vires. Government was bound to find ways and means of meeting its written contract with the parameters of existing rules and regulations.
While one needs to respect the stance taken by the PSC, the Ombudsman considered that it did not seem unreasonable to maintain that the fact that an officer is permanently in receipt of a salary above his substantive grade does not necessarily mean that he has been promoted. Salary Scales and substantive posts are two separate concepts that need to be clearly distinguished. Indeed a Salary Scale is an essential component of a substantive post and the grade that goes with it. However being in receipt of a salary according to a given Scale in no way gives the grantee the same rights and obligations that are inherent to a substantive grade.
Indeed complainant could only claim to receive the higher salary as determined in the 12 December 2007 letter of the Permanent Secretary to the Ministry responsible for the Agency. He had no right to claim a posting in a substantive grade reflecting his Salary Scale, still less could he benefit from the advantages which such a grade confers. In fact complainant had never put forward such a claim.
After giving further consideration to the provisions of Article 1.5.2.3 of PSMC, and the Public Service Commission’s declaration of nullity of the December 2007 letter, the Ombudsman concluded as follows:
- there was no doubt that in the 12 December 2007 letter addressed to complainant, Government informed complainant that in the event that his contract with EUPA would cease to be in force (for whatever reason once that no other condition was specified), he would retain his substantive grade but, on a personal basis, he would retain his then Salary Scale 5. There could be no other valid interpretation to that letter, and the interpretation given by the authorities was mistaken in fact.
- there was no reason to doubt that when complainant was forced to resign, he was comforted by the belief that he would, on a personal basis, retain his Salary Scale 5 while retaining his substantive grade.
When following his resignation, Government did not grant him Salary Scale 5 on a personal basis, he rightly felt aggrieved.
The Ombudsman therefore upheld the complaint and the issue of redress arose. Government was bound to find ways and means of meeting its written commitment within the parameters of existing rules and regulations.
The Ombudsman therefore recommended that PAHRO recommends to PSC, that complainant be granted Salary Scale 5 on a personal basis; if this were not accepted, complainant should be adequately compensated financially.
Follow up
After some delay, PAHRO wrote to the Public Service Commission enjoining it “… to consider the Ombudsman’s recommendation in the light of this Office’s [PAHRO] above-stated representation”. These representations included PAHRO’s concern at creating a dangerous precedent. The Public Service Commission after due consideration, decided that it was “…unable to endorse or act on the recommendation that [complainant] be placed in salary scale 5 on a personal basis”. It added as follows:
“The Commission cannot accept that a public officer who is granted a benefit in a manner that is unconstitutional and ultra vires has any entitlement to retain such a benefit.”
The Ombudsman informed the Commission that he did not, as could be implied in the Commission’s reply, specifically recommended that the Commission should appoint complainant in Salary Scale 5, but that PAHRO makes this recommendation.
This was a procedural step that was required if complainant was to be redressed in the way Government (even if wrongly and without respecting the provisions of the Constitution) had assured him in writing of his Scale 5 status.
This Office, acknowledged the right of the Commission in terms of its Constitutional mandate to take the final decision on a recommendation of this nature. It was precisely for this reason that he had envisaged the possibility of a negative opinion of the Commission on such recommendation when he stated that if the recommendation is not accepted, complainant should be compensated financially.
The Ombudsman subsequently requested PAHRO to indicate what action it intended to take to redress complainant financially on the basis of the alternative indicated in his Final Opinion. PAHRO resisted such redress. Therefore in terms of the Ombudsman Act, the Ombudsman referred the matter for the attention of the Prime Minister. At this stage the Principal Permanent Secretary informed PAHRO that the Ombudsman’s Final Opinion should be implemented and directed PAHRO to take necessary action accordingly.
Case Studies