Case notes investigate by the Parliamentary Ombudsman
The complaint
A public officer, working in IT at Mater Dei Hospital (MDH), in a substantive grade, in Salary Scale 11 complained that in 2008 he was informed that he was going to be asked to carry out other duties. The complainant said that, when he was assigned in this position, the period set for this task was two months, but he performed and was still performing these duties without being compensated, for over five years. The complainant continued, that when he was deployed, he was informed that this was only a temporary measure that was taken due to a delay in a call for applications that had to be issued at the time.
Facts and findings
In June 2008, the complainant received an email from his Director, in which he was informed that following a high-level meeting held with the Parliamentary Secretary, it was decided that one member of the section in which he worked, had to be urgently redeployed for two months, to train hospital staff in IT. The Director also specified that this was in view of the fact that an issued call for applications for Hospital IT Trainers by Government was taking longer than expected and the need to increase training capacity was becoming very urgent.
The Director communicated that “After careful consideration, I have identified you as the most suitable candidate for this.” And also “I am 100% confident that you will succeed to make a very good job out of this training.”
The complainant said that, although he was promised several times that the call for applications was going to be issued, his deployment lasted for over five years and the call for applications had not yet been issued.
The Commissioner for Health sent all the details submitted by the complainant to the management at MDH for their comments.
The Director, Information Management and Technology (IM&T) at MDH, replied that the complainant was not forced against his will to take up the assigned duties but he was asked, and he accepted.
He also stated that the complainant did not suffer any financial disadvantage as a result of the redeployment; on the contrary, he was assigned to a shift which met the need to deliver training outside normal office hours and which resulted in an income greater than that associated with the complainant’s substantive grade of Officer in Scale 11. Complainant was also paid the shift, public holidays and Sunday allowance.
The Director insisted that, “When the situation was reviewed, (the complainant) did not express a desire to return to his previous duties. He preferred to continue working as a trainer (which would increase his chances of securing the Scale 10 position when the call was issued).”
He also confirmed that, despite continuous pressure from MDH management, Government did not open the call for Hospital IT Trainers. The Director explained that this was beyond the control of MDH management.
The Director added that the complainant is aware of the fact that “…the Hospital does depend on him as no recruitment has been forthcoming, and the fact that his colleague is due for retirement with the eventuality that he will take over the entire unit.”
To avoid that the situation gets worse, the Director communicated with the Malta Information Technology Agency (MITA) in order to initiate the process to subcontract this service by issuing a tender for this service. However the Director concluded that “due to lack of funds” the initiative was shelved.
The Commissioner analysed the correspondence attached to the Director’s reply in which it transpired that, before the complainant started working full time in the section he was deployed to, he had written to his Manager where he stated “…please understand that I cannot continue in delivering other duties that are past my grade”. However, in an exchange of correspondence with the management they referred to the complainant as one who “…likes the work and is not looking for any extra perks.”
On the point stated by the Director IM&T that, despite continuous pressure from MDH management, Government did not open the promised call for applications, the Commissioner asked the Director, Human Resources Practices of the Department of Health to specify what action was taken on the issue.
The Director replied “calls for applications are subject to inclusion in the Capacity Building Exercise and subsequent approval by the Ministry of Finance and the Office
of the Prime Minister – it does not transpire that any further vacancies in this grade were ever approved, and, therefore, the call could not be issued.”
The Commissioner sent the reply received to the Director IM&T, for his remarks and he replied that since he was appointed in 2011 he had, “on various occasions, highlighted the fact that the IM&T Directorate was in dire need of additional resources” but “recruitment within the IT Sector at MDH has been none over the past four or five years”.
The Commissioner referred the matter to the Permanent Secretary of the Ministry for Health for his comments. The Permanent Secretary replied that the Ministry was not in a position to give the complainant extra remuneration for the work done during his deployment since he performed duties that were required by him in that post. The Ministry also said that in the following Capacity Building Exercise (CBE) they had to ask for the filling up of a new post in the IT Department for which the complainant could apply if he deemed himself suitably qualified.
Amongst other clarifications, the Commissioner asked the Director IM&T, to clarify:
- the Scale of the other employee who had an identical job description;
- whether the other officer held the same position of the complainant; and
- whether the other officer was also doing the same duties of complainant.
The Director replied that the other employee was in Scale 10 and occupied the position of IT Training Officer. The Director confirmed that the complainant was performing duties of “training of individual on hospital applications”. The Director reiterated that he had requested for more staff because the only other officer was due to retire and had also asked for an additional six officers.
Complainant argued that his duties were, in fact, more intensive than those of the IT Training Officer. He explained that his colleague gave training to the clerical staff whilst he trained the professionals i.e. nurses, doctors and consultants.
Considerations and comments
From the investigation carried out by the Commissioner, it transpired that, in September 2008, complainant was asked to carry out the duties of IT Training Officer. This had to be a temporary measure (two months), however, this protracted for over five years.
It was also clear that the Department of Health was asked several times by the MDH’s administration to issue a Call for Applications for the position in question. This was never given priority by the Department of Health, even though the Department knew that during the two Calls for Applications in 2007 there were four vacancies, and none was filled.
Since then no further action was taken and due to the impending urgency MDH asked for seven positions – one to fill any imminent vacancy, and six other vacancies.
The Commissioner pointed out that the hospital authorities had tried without success to recruit staff through MITA. The only solution that the Department of Health could offer was, that in the subsequent CBE, it would be asking for the filling up of a new post in the IT Department.
The Commissioner replied that this was not a “filling up a new post but to replace the officer who was about to retire.”
Evidently complainant was performing duties that were higher than his grade. During the investigation, it turned out that the other officer who worked with the complainant was on Scale 10.
The Commissioner pointed out that he was in disagreement with the statement of the Permanent Secretary where he stated “the duties performed by complainant were those expected of him in his grade.”
In his comments about the findings, the Commissioner said that the complainant’s appointment was of a Support Officer, a post in a lower grade at a Salary Scale 11 and not that of a Training Officer which carried a Scale 10 salary.
The Public Service Management Code (PSMC) (paragraph 2.4.6.2) accepts the concept of “a deputising allowance” for “the carrying out of higher duties” and in paragraph 2.4.6.4 the rate of payable allowance is spelled out. However, the fact that the Health Authorities failed to, “seek the endorsement of the Employee Relations Directorate” as indicated in paragraph 2.4.6.3 of the PSMC should not have disqualified the payment of the allowance. The employee was in no way to blame for the inaction of his superiors.
The Commissioner continued that, irrespective of any other requirements under the PSMC for such allowance, it was morally unacceptable for an employee to be assigned duties pertaining to a higher grade and Salary Scale for a long period and being paid a lesser remuneration. This is worse when there are employees performing the same duties with a higher pay.
Conclusions and recommendations
The Commissioner concluded that the complainant had been asked to perform the duties of the Training Officer which he had been doing and was still doing, since September 2008. These duties were of a grade higher than his substantive grade for over five years; yet he was paid at the Salary Scale of his substantive post. The assertion that he had worked in a roster/overtime was not a valid argument for paying complainant less than he was entitled to. It was the hospital that decided that working on roster basis/overtime was needed in view of the nature and duties of that post that was a higher grade. In fact, the complainant’s colleague was also working on shift basis.
It is clear that the Health Authorities has allowed the situation to go on for over five years without taking effective action to remedy the situation. The Commissioner declared as unacceptable for an employer to request an employee to perform duties of a higher grade for such a long period of time because this could actually be considered as cheap labour.
The Commissioner understands and accepted the fact that, in the spirit of the PSMC, an employee can be assigned duties pertaining to a higher grade because of exigencies of the service for a period of not more than three months. However in this case, the situation had been allowed to protract to over five years.
Therefore, the Commissioner recommended that the complainant had to be given the difference in pay i.e. Scale 11 to Scale 10 backdated to September 2008 with applicable increments.
He also recommended the Department of Health to consider immediate steps to expedite the Capacity Building Exercise, so that a call for application could be issued.
The Department of Health accepted the Commissioner’s recommendation and agreed to give the back dated recommended remuneration.
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