Case notes investigated by the Parliamentary Ombudsman
The complaint
A Gozitan employee in a departmental grade within the Directorate for Educational Services and posted in Malta complained that colleagues in the same grade of his, who like him, were posted in Malta, were transferred to Gozo on humanitarian grounds irrespective of their seniority and simply on the basis of production of a medical certificate. As a result his transfer to work in Gozo where he resides was being unduly delayed.
The investigation
The Ombudsman received confirmation that over the years, eight (8) Gozitan officers in the same grade as complainant were “temporarily” transferred from Malta to work in Gozo on the basis of a medical certificate irrespective of their seniority in the grade. However, only one such transfer took place in 2012. Except for one case, the temporary transfer of the other seven employees was renewed every year. Of these, only one was endorsed by a Medical Board. The temporary transfer was extended year after year on the basis of updated medical certificates signed by medical specialists, in line with a long standing policy adopted by the education authorities.
Sub-Article 1.1.2.5 (iii) of the Public Service Management Code (PSMC 11th edition) provides for the maintenance of waiting lists of Gozitan domiciled departmental grade officers who are working in Malta who wish to work in Gozo. While, for general services grades, the list is kept by the Office of the Prime Minister for the purpose of seniority and priority. In respect of officers in departmental grades, who so wish to be transferred, such list is kept by the respective Ministry or Department. In the case of the latter group, there is generally no need for the respective Ministry or Department to seek approval from the Public Administration HR Office (PAHRO) within the Office of the Prime Minister, unless the transfer to Gozo is to the Ministry for Gozo, and not to the same Ministry/Department.
In the case under consideration the onus of maintaining the relative list and deciding on the transfer of officers in these departmental grades lay with the education authorities and PAHRO clearance was not necessary.
Another provision (sub-article 1.1.2.5 (vii)) of PSMC provides that pregnant Gozitan officers working in Malta may be temporarily transferred to Gozo until the end of confinement on presentation of a medical certificate and following confirmation by a Medical Board convened by the Health Division.
The Ombudsman also took cognisance of a letter Circular MPO/164/1995 dated 10 September 1996 which refers to general service grades, whereby such employees are, except in the case of pregnancy, to be considered on light duty and, with the concurrence of the Public Service Commission, the increments in their salary (beyond the first increment) is to be withheld, and their years of service while so temporarily transferred were not to be reckoned for the purposes of progression to a higher grade. The officer so transferred has to be re-examined by a Medical Board within 6 months. PAHRO also informed this Office that it was its intention to establish this praxis as a service-wide provision across the board and include it as a future provision in PSMC.
Considerations
In his deliberations the Ombudsman considered that complainant’s grievance stemmed from the longstanding policy of the education authorities to transfer Gozo resident employees from their posting in Malta, to work in Gozo, “temporarily”, on the basis of a medical certificate. As stated by complainant, a number of colleagues in the same grade had intimated that they could produce a medical certificate in order to jump the (priority) seniority list.
The Ombudsman further considered that despite there were no ad hoc provisions in the PSMC, PAHRO was accepting the humanitarian situation as a reason for bypassing the seniority rule in respect of general service grades. However, in such cases, PAHRO sought confirmation of the situation from a medical board appointed for the purpose by the health authorities and furthermore besides periodic review by a Medical Board, the officers so approved were considered as on light duties, their increments withheld with the approval of the PSC, and their service during this temporary transfer was not reckonable for progression purposes. These “deterrents” did not feature in the long standing policy adopted by the education authorities in an analogous situation.
While stressing that these considerations should not in any way be interpreted that the officers with the education sector were abusing the system (and there was no evidence of this) the Ombudsman dwelt on the best practice which should be applied in such situations.
In the Ombudsman’s considered opinion, the policy of the education authorities in accepting medical certificates for such “temporary transfer”, without independent medical vetting, was a risky one and certainly could not be deemed to be best practice. In such situations, the Head of Department should consult independent medical experts. This would ensure more transparency and reduce risk of potential abuse. Unfortunately to date there was no such provision in PSMC nor was there any circular to this effect.
The Ombudsman did not enter into the merits of whether Gozo domiciled officers transferred to Gozo on humanitarian/medical grounds should be considered as being on light duties with consequential loss of increments and progression while so transferred. It was up to PAHRO to decide on this issue in the first place and whether its present policy should apply service wide, including departmental grades. However, he considered that in such cases, primary consideration has to be given to whether or not the transferred employee can, despite his medical condition, perform the full range of duties of his grade. This was a decision that can be taken by a Medical Board.
Conclusions and recommendations
On the basis of the above considerations, the Ombudsman concluded that the complaint was justified as the system whereby a medical certificate is accepted without verification was risky and could give rise to abuse, even if in this case there was absolutely no such evidence.
The Ombudsman therefore recommended that:
a) The Education Authorities change their policy and review past approvals for Gozo domiciled employees transferred to Gozo on medical grounds, and subject these employees to a medical board. The individual cases should then be medically reviewed on their own merits in line with the recommendations of the medical board in each case; and
b) the Resourcing Department within the Office of the Prime Minister ensures that its policy applicable to general services grades is applied by all the Departments in respect of departmental grades and this in so far as verification of such medical certificates by a Medical Board.
Follow up
The education authorities immediately informed this Office that it was accepting the recommendations and had taken immediate action for all the cases to be reviewed by a medical board. Moreover they will be applying this policy in future.
On its part PAHRO while agreeing with the Ombudsman’s recommendations, informed this Office that in consultation with the pertinent stakeholders, it has updated its policy which addresses the considerations and recommendations made by the Parliamentary Ombudsman in the investigation report.
Case Studies