High level of public service suspensions and delay in completing investigations: Update by the Department of Public Service and Administration & the Public Service Commission

Meeting report

Opening Statement by Chairperson
The Chairperson indicated that besides the Department of Public Service and Administration (DPSA) and the Public Service Commission (PSC), there were additional institutions that were identified to have the same issues as the one being discussed today. The Office of the Auditor-General said that they would provide support to these institutions. The Public Service Coordinating Bargaining Council (PSCBG) could not attend the meeting as they were in a period of negotiation that included quite a bit of discussion. The Committee excused them from the meeting.

She stated that the Minister could not attend the meeting as he was busy with other Government business.

The Chairperson informed the Committee that the issue of suspensions was critical. It was one of the issues that were identified during the Committee’s oversight. Members believed that the matter needed further attention. The Committee wanted facts from the DPSA and the PSC.

Department of Public Service and Administration Briefing
Mr Mashwahle Diphofa, DPSA Director-General, informed the Committee that the delivery agreement between the Ministry for Public Service and Administration (MPSA) and the President instructed the MPSA to develop strategy to ensure that suspensions with full pay were finalised within the prescribed timeframes. The DPSA conducted a study on the management of discipline and incapacity due to poor performance in Public Service in 2010. The study showed that cases were not finalised within the 60 days prescribed by the Disciplinary Code and Procedure and Chapter 7 of the Senior Management Services (SMS) Handbook.

The PSC released a report on the management of precautionary suspensions in the Public Service in June 2011 – it also found that the prescribed 60 day period was not adhered to. The report showed DPSA’s interventions to improve the situation, some of which spoke to the recommendations made by the PSC in their report.

The DPSA developed and sent out a template to be completed by departments. 22 national departments and five provincial departments responded. The results showed that in 2010/11, the total number of employees on precautionary suspension was 356. Approximately 201 cases had been finalised. The total number of SMS members in the public service that were charged for misconduct for 2010/11 was 216, 51 of whom were on precautionary suspension. 183 cases had been finalised, 165 in favour of the employer.

Challenges included that Heads of Departments (HODs) and Executive Authorities (EAs) did not sign off files timeously, senior managers and EAs did not always heed advice, there were labour relations skills and competency constraints, and discipline information was not always properly captured and reported on.

However, the DPSA had developed a Precautionary Suspension Guideline underpinned by two principles. The first principle was that discipline should be managed by management and not lawyers and consultants unless the need arose. The second principle stated that precautionary suspension should lapse after 60 days and disciplinary processes should continue with the employee while s/he was at work. The DPSA wanted to encourage employers to complete investigations within two weeks of the suspension, despite the prescribed 60 day period. The DPSA had also set up a National Labour Relations Management Forum to improve the capacity and skills for investigative, prosecutorial and adjudication functions of Labour Relations Officers across the Public Service. DPSA was in the process of reviewing the disciplinary code and procedures to address the problems that rendered the system inefficient.

The DPSA planned to implement an automated case management system that would generate progress reports on suspension. The Department also wanted to establish a centralised disciplinary structure to assist departments with investigative work as well as prosecutorial and adjudication functions. Amendments to the Public Service Act and Regulations would be considered in the 2012/13 financial year.

Discussion
Mr N du Toit (DA) noted that 22 national departments and five provincial departments responded to a template developed and sent out by the DPSA. He asked for more information on the departments that did not respond to the template. It seemed like they were fighting a losing battle when they looked at challenges such as HODs not signing off files timeously, senior managers not heeding advice, and given the skills and competency constraints. It seemed that there was a major problem and he did not know how the challenges were going to be addressed. He asked when the DPSA’s Precautionary Suspension Guideline would be finalised and noted that one of the principles of the guideline was that precautionary suspension should lapse after 60 days, after which disciplinary processes should continue with the employee at work. This was a dangerous situation, especially with employees at a senior level. A lot of the information could be embedded in people that worked under the employee in question. He wondered what the DPSA was going to do about this if the employee returned to work and had an influence over the other employees. It was also important to take possession of the employee’s computer or laptop immediately, as there could be vital information on them. This was a real challenge. He understood that lawyers and consultants being involved were costly. However, when an employee was involved in a disciplinary process, s/he always brought a lawyer. It was fair for the employers to have the opportunity to use lawyers and consultants as well. He noted that the DPSA had set up a forum to improve capacity and skills for investigation amongst others. He asked how this would happen. He was worried that the Committee was looking at a mountain of problems.

Mr Diphofa replied that the DPSA asked the departments to respond to the template in January and they were in the process of following up with the departments that had not yet responded. They would make this information available to the Committee. From the interaction the DPSA had had with labour relations officers, there were times when they believed that precautionary suspensions were used when the situation did not warrant an actual suspension. He said that just because there was a prescribed amount of days within which to complete a disciplinary process did not mean that it fell away after the prescribed time – the employee was still disciplined at work. It did not mean that the case was closed after the 60 days lapsed; it meant you had 60 days to conduct an investigation while the person was not at the office. The DPSA hoped to encourage departments to use the time more productively.

Mr S Marais (DA) noted that the DPSA mentioned quite a few problems in their presentation, which was concerning. There were quite a few problems within the departments and with HODs that were not doing their job. For any democracy and economy to develop and grow, one needed a stable, effective state and civil service. He asked what the DPSA did to HODs that were found to not be doing their job. The DPSA once said that there were disciplinary cases that took up to 243 days to resolve in national departments, and up to 240 days to resolve in provincial departments. On average, this was a lot more than the prescribed 60 days. The DPSA had to quantify what the loss to the fiscus was. It meant that there was a huge amount of cases that had not been dealt with. He noted that the presentation stated that approximately R94 million had been paid to 365 senior management officials in the national departments and about R15.5 million to officials in provincial departments. This was a huge loss to the state. It seems like nothing was going to be done to HODs that were not doing their jobs. Allowing them to come back to work was setting a bad example to other employees.

Mr Diphofa stated that the time taken to resolve cases would be included in the DPSA’s 2012/13 programme of action. The Committee was invited to monitor the Department in respect of its quarterly reports. The DPSA had not yet collected data on specific problems such as the ones with HODs not doing their jobs. He believed that the measures being taken against employees would reduce the casual use of precautionary suspensions.

The Chairperson stated that she wanted to move on to the next presentation. Members who had any more questions should ask them in the next round. She also wanted to note that the “template” created by the DPSA for national and provincial departments did not paint an actual picture of what was going on in the country. The Committee needed to know specifics such as what the template contained and which departments did not respond to the DPSA. The Committee appreciated what the DPSA had managed to do already – however, Members needed more details on what they had done.

Public Service Commission Briefing
Prof Richard Levin, PSC Director-General, informed the Committee that the growing perception over the past ten years was that “thousands” of employees in the Public Service were placed on precautionary suspensions over lengthy periods. The PSC conducted a study on this subject. It also did a quick assessment of the numbers of suspended employees over the financial year 2010/11 in national departments. The PSC’s study conducted in 2010/11 included desktop research, literature review and interviews conducted with relevant individuals in national departments as well as provincial departments.

Key findings showed that officials were put on precautionary suspension depending on the nature of the charges, which included financial misconduct, insubordination, theft and fraud, misuse of state property, corruption, sexual harassment, unauthorised expenditure and violation of tender processes. The PSC established that there was general non-compliance with the prescribed 60 days period to institute disciplinary hearings. On average, departments took more than three months to conclude investigations. The general reasons for extending precautionary suspensions involved witnesses not being available, unavailability of representatives of the employees charged, request for additional information being unavailable at the date of the disciplinary hearing, employee being booked of sick, and the recusal of the presiding officer.

Of the departments sampled in the study, only three indicated that they preferred transferring an employee as an alternative to precautionary suspensions. Overall, departments were not effectively using the option of transferring employees for various reasons instead of suspending them. Transfers of employees could potentially save an employer a lot of money.

A study of employees placed under precautionary suspension during 2008-2009 and 2009-2010 showed that a total number of 293 employees were place on precautionary suspension. Cost implications were quite high. The study showed that national departments spent a total amount of R5 402 384 for financial years 2008/09 and 2009/10. The eight provincial departments on the study spent R15 601 7776 for the same periods. The departments collectively paid employees placed on precautionary suspension a total of R21 004 160.

The study also showed that labour relations components should provide advice to management on matters relating to disciplinary procedures including precautionary suspensions. It was also established that not all supervisors and labour relations officers were familiar with disciplinary matters such that some supervisors in the provincial departments did not even know the meaning of precautionary suspensions. This was one of the PSC’s major concerns.

A total of 1 559 employees were placed on precautionary suspensions during the 2010/11 financial year in all national departments. The highest number of employees placed on precautionary suspensions was reported in the South African Police Service (869), Correctional Services (471), Justice and Constitutional Development (69) and Defence (38) departments. According to the annual reports of national departments, a total amount of R51 938 509 was paid to 1559 employees who were placed on precautionary suspension in 2010/11. The total amount of salaries paid to employees in the departments which reported the highest number of suspensions was:
- South African Police Service: R8 million on 869 employees
- Correctional Services: R14 million on 471 employees
- Justice and Constitutional Development: R11 million on 69 employees
- Department of Defence: R511 481 on 38 employees

The challenges identified in the management of precautionary suspensions included poor monitoring of suspensions, other employees being burdened with the responsibilities of those placed on suspension, inadequate training of key role players in disciplinary procedures, poor compliance with timeframes, and investigations taking too long.

The PSC identified a few recommendations to address these challenges. They included:
⚫Departments developing their own internal policies through the assistance of the DPSA
⚫Employees attending training on disciplinary procedures, including the management of precautionary suspensions
⚫Each department developing their own database that would profile the systematic issues that contribute to extending the precautionary suspensions
⚫Precautionary suspension cases must be recorded in detail and reviews must be conducted
⚫Due to high cost implication, departments must immediately prioritise the finalisation of all outstanding cases from previous years
⚫The labour relations unit must play an active role in keeping track of all cases of misconduct
⚫There should be a requirement for departments to explain what measures they took against managers who delay conclusion of disciplinary procedures

The PSC remained concerned by the low levels of compliance with timeframes prescribed in the management of discipline resulting from a lack of understanding of disciplinary procedures in the Public Service. Lack of departmental policies and inadequate training of employees on basics such as disciplinary procedures was evident. The PSC recommended that departments should maintain accurate records of all employees on precautionary suspensions. There was a dire need to expedite investigations and to finalise cases to avoid the disappearance of witnesses and documents. The PSC urged departments to improve on their adherence to prescribed timeframes that would result in reduced costs relating to salaries of employees who were on precautionary suspensions for lengthy periods.

Discussion
Mr Du Toit noted, according to the PSC’s presentation, that 99.2% of the disciplinary cases were in the security cluster. It seemed ironic that these departments should know something about discipline, law and order. Yet, they did not have policies in place, nor any discipline. It was reported that 27 000 police persons were not qualified to handle fire arms. If a police person was suspended for pointing a firearm for example, there was no possible way to transfer this person somewhere else. This was a difficult situation. It was shocking that 99.2% of the precautionary suspension cases were from the security cluster. The presentation stated that there was a low level of compliance with timeframes prescribed in the management of discipline resulting from a lack of understanding of disciplinary procedures in the public service. This was shocking, especially in the security cluster – it had to be from a lack of will. The main function of police at senior level was to investigate and follow up on cases efficiently. There was a lack of follow up from the security cluster. This could almost be said to be criminal negligence. He was happy to see a few recommendations included in the PSC’s presentation; the Committee could see that the PSC knew what had to be done.

The Chairperson noted that the Member raised a few good points. The matter of the security cluster was very worrying. She wanted the PSC to look into this matter more closely.

Prof Levin noted that a number of the points made were observations. He agreed that the security cluster was indeed a problem and specific interventions had to be considered to address the concerns raised in the meeting.

Mr Marais noted that the presentation was excellent as it highlighted the problems the Committee had spoken about. However, the recommendations in the presentation gave the Committee a little hope. It was not such good news for the Director-General of the DPSA who did not have the information the PSC had. It seemed like the information was available if the DPSA wanted it. It was concerning that the DPSA did not know what was happening in the public service sector. He asked the DPSA how many people received an “acting” allowance, which was the money paid to people that were put in acting positions. The DPSA had to do a lot more to help the country have an effective civil service. The majority of the issues were within “human control”. The PSC identified one of the problems as being lack of capacity. The DPSA had to focus on these issues more closely. The Committee looked to the DPSA to do more. All the information was available to them; all they had to do was look for it. His suggestion was that the recommendations made by the PSC had to be implemented. The Committee was aware that the PSC did not have the budget to do this, but the Committee  could transfer some of money from the DPSA to the PSC.

Prof Levin answered that employees only received an acting allowance if they acted in a post that was vacant. So, it was not a major concern unless people “acted” for an extensive amount of time. This was not one of the major problems.

Mr Diphofa replied that it was not that the DPSA did not know what the number of employees was who were suspended – the DPSA could gather this information from the annual reports. The DPSA’s report looked at more than that; the DPSA looked at the nature of the misconduct, the level of the official involved, the outcome of the hearing, and the function etc. The DPSA wanted to include all of this information, which was not readily available from the annual reports. The intention was to have more detailed information, beyond the number of people involved in disciplinary processes. He stated that the idea of transferring the budget from the DPSA to the PSC could be linked to the point around the management of discipline in the public service. This was a decentralised function. The DPSA did not have a huge budget to manage discipline in the public service. Interventions were from a different level. The DPSA made sure there were proper norms and standards in place, and that they had enough capacity to intervene in certain circumstances. It was not possible for the DPSA to assume the role of managing discipline in the entire public service.

Mr A Williams (ANC) noted the “staggering” R51.9 million spent on salaries of employees that were suspended. He asked if the DPSA spent any money on labour law consultants. He predicted that this was a substantial amount of money and asked how much it was. The Committee needed to know why organisations like the Public Administration Leadership and Management Academy (PALAMA) were not being called in to train human resource management departments throughout the public service.

Prof Levin replied that Mr Williams made a good point about labour law consultants. He did not know how the Committee would go about getting the information it wanted as it was not readily available. The cases themselves cost money, and the labour law consultants came at an additional fee – sometimes up to almost a million Rand and then most of the time the cases were lost. The PSC would look into how they can get this information. He thought a more comprehensive discussion was needed on PALAMA – it would certainly be able to show the courses on offer and how many people were being trained on management of discipline and management of precautionary suspensions. He recommended that discussions should be held with PALAMA.

Mr Diphofa noted that the DPSA could try to find a way to acquire this information, as they did not have any access to it at this point.

Ms M Mohale (ANC) addressed the security cluster. She said it was important to look at the shortcomings of the administrative staff instead of only looking at the men and women in uniform. She asked if the DPSA was saying that all labour relations offices in departments were well-trained and fully functional. Disciplinary processes started in the labour relations section. So, where did the problem lie? There were other avenues that had to be explored. She addressed the money spent on people in acting positions for employees that were suspended. The employee that was acting and the suspended employee were both being paid. This was a lot of money – two people were paid for the same position. She wondered if this could be classified as wasteful expenditure.

Prof Levin said it was clear that departments did not have well-trained people in the area of labour relations management and the management of precautionary suspensions. He recommended that there should be some interventions, and that labour relations management should be strengthened. This was noted in the DPSA’s report as well as the PSC’s presentation.

Mr Diphofa agreed that there was a capacity problem in some departments. Both presentations acknowledged capacity challenges that had to be addressed. One of solutions that the DPSA was proposing was norms and standards around the structure for staff and reporting lines for labour relations units. 

Mr E Nyekembe (ANC) noted that the presentation spoke to the need for departments to have their own policies for discipline. He asked if it was not perhaps better for the DPSA to have a guideline for other departments to follow in terms of policies and procedures. The presentations showed that labour relations officers did not know what it was that they were supposed to do. The DPSA’s presentation showed that precautionary suspensions should not exceed 60 days. But, what measures would the DPSA put in place to ensure that this was adhered to?

Prof Levin noted that the DPSA’s presentation spoke of a guideline that was being created to serve as the basis for departments to craft their own internal policies.

Mr Diphofa replied that part of the problem with discipline being managed within departments was that the DPSA and the Committee only realised how long the processes took when they commissioned this study. There was a case management system that the DPSA was excited about that gave much more credible and updated information. It would help departments determine where the challenges were. There were a number of things that could be done once the information was given to the DPSA. The DPSA could determine that there was a capacity problem and they could assist other departments with the centralised capacity the DPSA had created. If the challenge was in terms of presiding officers, the DPSA could utilise this centralised capacity as well. This was as far as the DPSA could go short of taking over, which it was not authorised to do in terms of legislation. The idea of the DPSA having guidelines for internal policies was a good idea. It would build on the template for the content of internal policies that would help departments.

Ms Mohale asked if the legal sections within departments assisted the labour relations sections in terms of disciplinary processes.

Prof Levin replied that the Member made a very important point about the need for legal sections to be involved in disciplinary processes. Different parts of the departments had to be brought together to strengthen disciplinary procedures. The issue had to be looked at more closely.

Mr Nyekembe noted that one of the recommendations that the DPSA made in its presentation was that amendments would be made to the Public Service Act and Regulations in the 2012/13 financial year. He asked what the plan was to deal with this. He asked if the DPSA had already identified certain sections within the legislation that they wanted to amend.

Prof Levin emphasised a point Mr Diphofa made earlier, that he was sure would impact on this discussion and many discussion in the future. The DG had spoken of a system of decentralised public administration and services. Often, the Government wanted the DPSA to do certain things that it was unable to do because of legislation and the system that was decentralised. Departments had to take full responsibility for the management of various management practices. This was a reason to understand why there was weakness in management in many of these areas. Many countries shifted to a system of decentralised public management. Success depended on the speed at which this was done. Many countries took years to shift to the decentralised system, which allowed them to build up the proper capacity for it. South Africa moved quite quickly and the consequences were what the country was dealing with now.

Mr Diphofa added that the DPSA was in the process of reviewing the disciplinary codes and procedures. There were areas that could lead the DPSA to revise certain sections of the Public Service Act.

Mr Marais addressed the role of HODs in delayed disciplinary cases. The PSC made the recommendation that HODs should be held responsible when cases went beyond the prescribed 60 days. He asked how regularly HODs had to report back to the DPSA. He asked if there was anything that could be done to force HODs to report back on the delays as well. Clearly there were capacity problems within the civil service. 

Mr Diphofu answered that there could be a number of aspects to look at. One way was to consider the security cluster as a priority area so that the Committee could receive reports from the relevant departments on a quarterly basis. This could address a huge chunk of the disciplinary cases. Another possibility was to look at the whole public service and the quarterly performance reports of all the departments that were submitted to National Treasury. These reports could contain information pertaining to disciplinary cases. The DPSA hoped to get to a point where it received full, timely information from departments.

The Chairperson stated that she hoped the DPSA and the PSC would take on board the comments made by the Committee. It was dangerous to deal with perceptions and not reality. This was why the Committee needed to have this meeting. Members needed reliable data about the public service sector. This was critical, as it allowed the Committee to perform its oversight role based on reality, not on perceptions. The presentation showed there was a low level of discipline and compliance in the public service sector. It seemed that people complained about corruption continuously as if there was no solution in sight. Part of why the Committee commissioned this study was to find out what the problems were. The problems had to be dealt with at their core. The Committee wanted to be robust in dealing with these challenges. This was the beginning of many more discussions on this matter. The Committee wanted to know if the public service was “intact” and if the DPSA and PSC had the capacity to implement the recommendations and interventions they came up with. There were many issues that the Committee had to interrogate in order to have a strong public service.

The meeting was adjourned.