Public Service Disciplinary Procedures; Capacity Building Needs Analysis: Reports

Capacity Building Needs Analysis: Report (Appendix 2)

Public Service Disciplinary Procedures: Report
Mr Manie had liaised with many provincial heads as well as other organisations requesting that they submit submissions on this issue and outline the problems experienced as well as suggest recommendations regarding the improvement of disciplinary proceedings.

Mr Allen Taylor was asked to give feedback on the Report of the Portfolio Committee on Public Service and Administration which was a compilation of these submissions.

Mr Dexter Phillips(ANC) agreed with the submissions and endorsed the recommendations.
He feels that managers must take responsibility regarding corrective disciplinary measures

Mr Skosana felt that he needed clarity on whether employees could take the Public Service to court. He wanted to know where the line has to be drawn with regards to involving department heads in disciplinary procedures.

Mr Mgedi referred to point 9 in the Recommendations Section. He suggested that minimum requirements should be established when employees find the need to go to higher management.

Mr Taylor emphasised the fact that managers should be held responsible for operations in their departments. Lengthy procedures should be eradicated. Single appeal process should be considered for non-dismissable cases and a second appeal process should be considered for dismissable cases. The implementation of a competent Labour Relations Department should control and supervise managerial activities. Trade union representation does not refer to legal representation but representation by a fellow employee or shop steward.

Capacity Building Needs Analysis: Report
This part of the meeting was not monitored.

Disciplinary Procedures in the Public Service: 10 June 1998: report

Report of the Portfolio Committee on Public Service and Administration on submissions received on the disciplinary procedures in the Public Service, dated 10 June 1998, as follows:

A. Introduction

The Portfolio Committee received several requests from politicians and administrators to investigate the procedures which govern the administration of discipline in the Public Service. Owing to the delays and complexities associated with the formal procedures, there appears to have been reluctance on the part of some managers to initiate disciplinary procedures, even in cases where disciplinary action was clearly warranted. The inaction of management in these cases has served to encourage further indiscipline, and has led to a breakdown of discipline in some departments.

At the outset the Committee believed that the apparent unwillingness of certain Public Service managers to administer discipline in terms of the Public Service Act, 1994 (the Act) might be attributed to two causes:

1. Lack of capacity, especially with regard to the appointment of competent and experienced investigating officers and presiding officers, as required by the Act; and

2. The disciplinary procedures themselves, which were regarded as time-consuming, complicated, unwieldy and subject to inordinate delays.

In order to ascertain the views of the most important role-players and stakeholders, the Committee requested comments from employee organisations, ministries, departments and provinces on disciplinary processes currently in force in government as well as the amendments which have already been passed but are not yet in force (the Public Service Laws Amendment Act, 1997). The Committee received twenty-nine substantive responses. The Annexure to this Report contains a list of the submissions received and a summary of the important points raised.

B. Summary of the major points raised in the submissions

1. The disciplinary process is too disjointed since it is not contained in a single document. At best departments have a separately negotiated code (at departmental level) for disciplinary offences up to the level of serious misconduct or inefficiency and are then required to follow the Public Service Act, 1994 (the Act) in respect of serious misconduct or inefficiency.

A general complaint is therefore that the provisions contained in Chapter VI of the Act exclude progressive and corrective aspects of disciplinary procedures as required by the Labour Relations Act, 1995 (LRA) - in particular Item 3 (Disciplinary measures short of dismissal) of Schedule 8 (Code of Good Practice).

3. A number of submissions indicated that the process as laid down by the Act is extremely time-consuming with long delays. This led to charges not being brought speedily enough, if at all, resulting in low morale and increased ill-discipline. The Public Service Amendment Act, 1997 addresses this problem to some extent by imposing time limits for each step of the disciplinary procedure, although some respondents indicated that these should be further shortened.

4. The Act provides for employees accused of offences to be allowed to retain the services of professional legal practitioners to represent them at disciplinary hearings. This has led to disciplinary hearings being turned into quasi-court cases that are often decided on technicalities rather than on the facts. It also requires the State to retain senior legal advice in conducting such hearings. The LRA allows an employee to be represented by either a fellow employee or a member of his/her employee representative organisation or trade union, a provision which by implication and in practice excludes legal representation.

5. Some departments lack capacity and training to conduct disciplinary hearings. This results in cases either not being heard or the hiring of professionals from outside the Public Service to investigate and preside over cases. This is not desirable since disciplinary matters should be dealt with within departments. Some provinces and departments utilise or have developed their Labour Relations components to assist management with the administration of discipline.

6. Some provisions of disciplinary processes have put too much onus on the Head of Department for carrying out the provisions of disciplinary processes laid down in the Act. This results in bottlenecks at the level of Head of Department resulting in considerable frustration.

7. A number of submissions pointed to the outdated, legalistic and complicated language in which disciplinary procedures are framed and laid down, particularly in the Act.

8. Submissions from SAPS, Correctional Services, Defence and NIA indicated that they all follow different procedures in terms of the various Acts under which they fall. However it appears that in some of these departments there are employees appointed under the Public Service Act and who are therefore subject to a different disciplinary process. This can cause unnecessary confusion.

9. The role of the Executing Authority in the disciplinary process has been questioned in terms of procedural fairness and the hearing of appeals by Executing Authorities. Some submissions felt that this was an unnecessary role of for the Executive since they should not play an administrative management role in their departments.

10. The necessity for an even and equitable application of disciplinary processes throughout government was raised. The boundaries of management discretion could result in different decisions being made for similar disciplinary offences. The issue of uniformity thus requires attention.

11. Although it was not raised in the submissions (because the question wasn't asked) it is assumed that hand in hand with a disciplinary procedure a grievance procedure is also required.

12. From the submissions it is clear that some departments have proceeded with negotiating their own disciplinary codes within departmental bargaining chambers. This has been enhanced by various provisions within the Labour Relations Act.

C. Recommendations

The Committee, having considered the subject of the disciplinary procedure in the Public Service, and having taken into account the submissions from role-players and stakeholders received by the Committee, recommends as follows:

1. That managers in the Public Service make more effective use of corrective action in the form of counselling and progressive discipline in the form of warnings, which would reduce the need to resort to the formal disciplinary procedures currently contained in the Act.

2. That the Department of Public Service and Administration (DPSA) draft a

"Disciplinary Code for the Public Service" (hereinafter referred to as "the proposed

Code"), incorporating the formal provisions currently contained in Chapter VI of the

Act, as well as the progressive and corrective measures contained in Item 3 of

Schedule 8 to the Labour Relations Act, l995.

3. That the formal disciplinary procedures currently contained in Chapter VI of the Act be removed from the Act by means of an amendment to the Act.

4. That the abovementioned amendment to the Act also make provision for transitional arrangements, whereby the existing provisions shall continue to be in force until such time as the envisaged Disciplinary Code comes into force.

5. That the proposed Code make appropriate allowances for existing sector-specific or departmental Codes, but the principle should be established that the proposed Code be regarded as the guiding norm.

6. That the proposed Code be drafted in plain, accessible language.

7. That the disciplinary procedures contained in the proposed Code ensure that the time-frames for each stage of the disciplinary process are kept to a minimum, to ensure that the administration of justice is swift and fair. Unnecessary bureaucratic red tape should be avoided.

8. That the levels of authority for handling disciplinary cases be appropriately spread out, in terms of the proposed Code where applicable and in the maintenance of discipline in general, to ensure that an undue burden is not placed on the head and top management of a department.

9. That the provisions pertaining to discipline currently contained in Chapter VI of the Act be brought in line with the LPA in one respect in particular, without delay; namely that the provision which allows for legal representation at disciplinary hearings should be amended to provide for representation by a trade union representative or fellow employee.

10. That a grievance procedure, itemising all the steps up to and including referral of a grievance to the Public Service Commission, be developed as part of the proposed Code or as an Annexure to the proposed Code.

11. That allied to the development of the proposed Code there should be a comprehensive programme to ensure that sufficient officials are identified and trained to manage the disciplinary procedures.

12. That departments and provinces seriously consider the utilisation and/or development of their labour relations components to render assistance and guidance to managers on the administration of discipline and the procedural steps required. This should not, however, absolve managers from their responsibility in this regard, but should empower the managers to perform their roles more effectively.

The Committee would like to thank all those employee organisations, ministries, departments and provinces who submitted their comments. Their insights and points of view were of great assistance to the Committee in the drafting of this Report.

PORTFOLIO COMMITTEE: PUBLIC SERVICE AND ADMINISTRATION

CAPACITY BUILDING NEEDS ANALYSIS

SECTION A: INTRODUCTION AND BACKGROUND

1. INTRODUCTION

The South African Government is firmly committed to promoting a public service that is highly efficient and effective. Parliament is pivotal in enabling this goal to be fully realised. Parliamentary Committees play a crucial role in determining national policy and in monitoring and evaluating the impact of that policy.

1.1 The Portfolio Committee on Public Service and Administration (National Assembly), tasked with the functions outlined above, amongst others, took a decision to identify processes for strengthening its capacity and effectiveness. This emerged as a result of a strategic planning workshop in which Committee Members participated. The workshop reviewed the major developments in the transformation of the Public Service during 1996 and recommended strategic priorities for the work of the Committee during 1997. One of the recommendations was that the Committee engage in a capacity-building programme.

1.2 The Committee set up a research team to conduct a needs analysis as the first step to developing a capacity-building programme. It was anticipated that the needs analysis would be a useful platform for identifying the development needs of the Committee as a collective body and of individual members, and for informing the design of training and development events to match the identified needs.

2. PROJECT PURPOSE

2.1 The overall purpose of the project is to strengthen the capacity of the Portfolio Committee to enable it to exercise its powers and perform its functions with maximum effectiveness.

2.2 The project plan is divided into two phases:

A. an initial needs analysis of a representative sample of the Committee members, including identification and prioritisation of specific needs focused interventions. This has been completed and details are provided further in this report.

B. the mobilisation of resources and the implementation of the

capacity building programme.

3. PHASE ONE OBJECTIVES

This report focuses specifically on phase one and the following constitute the key objectives for this part of the project:

i To determine the capacity-building needs of the MP's in accordance to their functions and roles in the Portfolio Committee;

ii To analyse the levels of skills development within the committee;

iii To indicate which areas of skill need further training; and

iv To make recommendations on what type of and how training could be used as a tool for capacity building.

4. PROJECT METHODOLOGY

The research team deployed four main instruments for data gathering:

(a) Documentation Analysis: the strategic planning document of the committee was studied and analysed as a basis for identifying development needs.

(b) Face-to-face interviews: these were conducting using a semi-structured questionnaire.

(c) Self-Administered Questionnaire (SAQ) - this self-reporting questionnaire was designed to elicit basic biographical data, including level of education, and information about skills and capability.

(d) Telephone Interviews (TI) - these were targeted at those Committee members who were not available for a face-to-face interview

5. PROBLEMS EXPERIENCED

5.1 The research team experienced a number of challenges during the research process. These included the following:

i During the first five weeks of its progress, the researchers were only able to collect six (6) questionnaires (17%), falling far short of the required sample;

ii All the MP's soon went on recess and in most cases were not possible to be reached by telephone;

iii Some MP's felt that because they were alternate members there was no need for them to be part of the research;

iv Responses were mainly from members of only two parties, the ANC and the NP, since there were no questionnaires returned by the members of other parties.

It was very difficult to progress under these circumstances and the only way that the research was able to continue was through the intervention of the Chairperson of the Committee. Such an intervention did make a difference insofar almost 50% of the members participated ultimately. This intervention entailed that during a committee meeting members were requested to complete the questionnaires.

6. THE RESEARCH TEAM

6.1 The team consists of the following members; Jan Koster (DBSA), Project leader; Randhir Auluck (SAMDI/Civil Service College, UK); Siyabonga Nodu (Fort Hare Institute of Government); Itumeleng Mokate (SAMDI); Daniel Moagi (DBSA); Mashudu Malhivha (DBSA).

7. LANGUAGE PROFICIENCY

7.1 The respondents were asked to rate themselves according to their proficiency in the eleven (11) different languages. The results are as follows:

LANGUAGE PROVICIENCY (FREQUENCIES)

Speak

English - 14

Afrikaans - 10

Sotho - 6

Xhosa - 7

Ndebele - 3

Swati - 3

Zulu - 8

Pedi - 4

Shangaan - 2

Venda - 1

Tswana - 5

Read

English - 14

Afrikaans - 10

Sotho - 4

Xhosa - 6

Ndebele - 4

Swati - 2

Zulu - 5

Pedi - 3

Shangaan - 2

Venda - 1

Tswana - 4

Write

English - 14

Afrikaans - 7

Sotho - 3

Xhosa - 5

Ndebele - 1

Swati - 2

Zulu - 4

Pedi - 2

Shangaan - 2

Venda - -

Tswana - 3

7.2 93% of the respondents indicated that they could speak, read, and write English. This implies that information written in this language is accessible to most of the members in the Committee.

7.3 One point of particular note is that a number of respondents are able to speak at least two official languages. This can be viewed as adding strength to the Committees effective functioning. This could contribute to improved communication during public hearings and visits to departments with a focus on the "shopfloor" public servants who sometimes lack command of English or Afrikaans. Apart from this, however, such a wealth in languages means that each member of the committee has something to learn from one another.

8. CONTINUING EDUCATION

8.1 53% of the sample indicated that they were furthering their education or engaged in educational programmes at the time of the research. This suggests that a majority of respondents realise the need for self development and are committed in achieving it.

8.2 The following list is a summary of the response to the questions about the types of further and higher education programmes members are currently undertaking:

· Diploma Pub. Admin/ B. Admin/MA Pub. Admin

· MA History

· M Phil Religious studies

· LLB

· BA II (enrolled)

· Std 10 (enrolled)

8.3 Some committee members explained that they were interested in continuing their education, however, were not able to commit to further education due to time constraints and work pressures.

9. EXPOSURE TO TRAINING AND DEVELOPMENT PROGRAMMES

Only 20% of respondents indicated that they had received training that the deemed relevant to their committee work. These are presented in the table as follows:

[Ed note: the table has not been included]

This emphasises the importance of developing needs-based training that can be of particular benefit to the Committee.

10. CAPACITY AND SKILLS

10.1 This section deals with respondents' self-reported level of skills development and perceived constraints in terms of effective performance.

a) Main constraints

Members of the committee were requested to list the main constraints they have experienced and which they believe hindered the effective performance of Committee work in the past six (6) months to a year. The four key constraints identified were:

· Clashing Committee time table

· Proximity of Parliament to home base

· Too much time spent on debates that are irrelevant to the Committee

· Lack of secretarial support

It is clear that respondents do experience problems with the attendance of different committees meetings. This has negative implications in terms of the capacity and consistency of the Committee's work.

b) Other reported constraints include:

· Analysing legislation

· Making recommendations on policy documents

· Coping with lots of reading material

· Working with laws that existed in the past

· The lack of support systems

· Lack of computer skills and human resources support

· Research back up and administration

· Poor management and planning in Parliament

· Short notice for meetings

· Lack of funding for provincial visits

· Need for regular consultation with the DPSA

· Red tape and bureaucracy

· Lack of training in all the different spheres of the public service

· Duplication of functions (unnecessary)

The above constraint in terms of the capacity to analyse legislation has serious negative implications for the policy process. This could be one of the key areas contributing towards the prevailing gap between policy making and implementation in the country. Especially, should this constraint contribute to a lack of in-depth analysis of the implications of, for example, legislation, in terms of its implications for implementation.

The research clearly indicates that capacity constraints are not only ascribed to the Committee members but also to a lack of technical support to the committee. Subsequently, capacity building initiatives should not merely be based on training per se but should coincide with improved technical support to the committee.

10.2 Environmental constraints

The table below lists the reported constraints that impact on the effectiveness of Committee members.

POSSIBLE CONSTRAINT RESPONSE (%)

1. Access to office space

2. Equipment, e.g. telephone, fax care, computer, photocopier, e-mail, Internet: 40%

3. Access to information and reviews, reports, political developments, technical and professional expertise: 60%

4. Proximity of Parliament to home base: 60%

5. Access to other key role players: 47%

6. Resources, e.g. secretarial, administrative, finance: 67%

7. Communication systems, e.g. decisions taken, presentation of reports: 47%

8. Access to training: 67%

9. Too many committee commitments: 80%

10. Lack of induction: 67%

10.3 Committee members did not report problems of any nature with regard to office space. However, four (4) distinct areas were identified to be potential key environmental constraints: (i) lack of resources: (ii) lack of access to training; (iii) lack of induction; and (iv) too many committee commitments.

10.4 Excessive commitments, the time spent on committee work, belonging committees a member can handle, chairpersonship of another committee, to name but a few, all indicate time constraints for Committee members. The issue of time constraints will have implications for the intended capacity-building programme in the sense that members will have limited time available.

10.5 Skills related to Committee functions

[Ed note: table on Skills and Activities on Level of Development has not been included]

Committee members report a lack of specific skills in relation to their committee duties. This is shown in the table above where most of the members rated themselves between 13% and 40% on the scale of skill development. However, reading skills, briefing documents, working in a team, ability to organise work and leadership skills, were rated above 50%. Members also report a lack in skills such as public speaking which are crucial to their function as both Committee members and as MP since they have to address committees, the Assembly, and constituencies.

10.7 One of the key roles that committee members play is the monitoring and evaluation of Departments. However, no member claims to have well developed skills in this area. This raises such questions as: (i) How effective is the present monitoring and evaluation role? (ii) To what extent does the Committee contribute towards correcting Departmental ineffectiveness and inefficiency and, (iii) to what extent is it possible for the Committee to monitor the implementation of policies it has approved?

10.8 Respondents' comments suggest that Committee members are good listeners but less effective in actively participating in Committee meetings. This would suggest that more exposure and intense training in the areas of monitoring and evaluation and handling Committee meetings, is needed.

10.9 Understanding of Parliamentary and Policy matters

NB:* asterisk denotes missing response(s)

Knowledge of parliamentary and LEVEL OF UNDERSTANDING

Public Service Basic Intermediate Advanced

Context

1. Budgetary

process* 33% 53% 7%

2. Parliamentary

responsibilities 20% 67% 13%

3. Public Service

Transformation 33% 53% 7%

4. Labour

Relations Act 40% 53% 7%

5.Green Paper

on HRD 60% 33% 7%

6.Service Delivery

White Paper 20% 60% 7%

7. White paper on

Public Service 40% 47%

Training

8. Employment Equity

BilI* 47% 33% 7%

9. MTEF* 53% 33% 7%

10. The New

Constitution* 7% 33% 53%

11. Parliamentary

RuIes* 13% 60% 20%

10.10 Most members indicated that their level of knowledge of Parliamentary and Policy matters ranges between "basic" and "intermediate". Of particular interest is the level of understanding of the New Constitution which has been rated "advanced" by more than 53% of the respondents.

10.11 Respondents also report a lack understanding of Parliamentary Rules and Parliamentary Responsibilities. This could be related to a lack of a comprehensive induction programme for new Committee members. Of particular importance is the fact that only 7% indicated that they have advanced understanding of the key area of transformation of the public service. 53% indicated intermediate understanding and 33% basic understanding.

Six (6) Priority Areas

In terms of understanding Parliament and policy matters, 87% of the respondents identified the following as the six priority areas that need further development:

1. Budgetary process

2. Public Service Transformation

3. Medium Term Expenditure Framework

4. White Paper on Training

5. White Paper on HRD

6. White Paper on Service Delivery

10.12 There is also a low rating for 'understanding of 'BUDGETARY PROCESS' and the 'MTEF' These areas are crucial to the implementation of policy and mobilisation of resources in support of policy.

11. INSTRUMENTS FOR CAPACITY BUILDING

11.1 The committee is a key mechanism in the process of rapid and fundamental change in South Africa. It therefore continuously has to deal with new issues and challenges. The environment in which it operates is demanding and establishes a need for skills to be enhanced, knowledge increased, and access to information improved. A well-designed capacity building programme can assist in achieving this objective.

11.2 As a point of note, due to the demanding work-schedules of Committee members, it will be important to find mechanisms to safeguard the implementation of any capacity-building programme.

11.3 The following are various instruments for capacity building, none of which are mutually exclusive:

(a) Option one: Linking up with universities

The Committee could link up with national institutions of higher learning and identify programmes offered which could best address their needs. For instance University School of Public and Economic Management, Schools of Government, Schools of Law could be approached and asked to present courses which will directly benefit the Committee. Information on the types of programmes universities offer could also be accessed via the Internet.

Programmes could be presented at the premises of the National Assembly during convenient hours to ensure that Committee members are not taken away from their working environment.

(b) Option Two: Twinning Potential

Given that the South African National Assembly has links with international Parliamentary institutions, it may be useful to establish twinning arrangements between Committee members and their counterparts in other countries (especially those countries that have similar Parliamentary processes). In this respect, there could be exchanges of members between the Committee and visits from experts to share experiences. This option could also be utilised to share case studies and serve as a basis for external mentoring. Furthermore capacity building initiatives undertaken in this Portfolio Committee could serve as a replicable model in other South and Southern African legislatures.

(c) Linking with Private Sector

Private Sector companies have a very important role to play in the capacity building of Parliament in terms of private/public partnerships. Information Technology based organisations are critical in this option as they, apart from providing funds, could also assist in providing expertise to assist the committee in very specialised policy areas.

(d) Linking with the Department of Public Service and Administration and the South Management and Development Institute (SAMDI)

It is important for the Committee to have a thorough up-to-date working knowledge of the Department for Public Service and Administration (DPSA). In this regard, the Committee could from time to time visit the Department and familiarise itself with the entire organisational context of the Department. This could also involve creating mechanisms for quick access to information and documentation needed by the Committee from the Department. Synchronisation of business plans between the DPSA and the Committee would also contribute to the more effective utilisation of existing capacities.

(e) Mode of training

It is very important that the training techniques applied should not be lecture-student based but should rather be based on adult learning. Workshopping of key issues and case study presentations would therefore have much more positive impact on the capacity of the Committee and its members. Exposure to provincial capacity and challenges with policy implementation would further contribute to the development of realistic policies.

SECTION C RECOMMENDATIONS

The research clearly indicates two areas of need for improving the capacity of the Committee.

The first entails the provision of technical support to the Committee. In this regard it is recommended that a small but dedicated technical support team be established to serve the Committee. This team should in accordance with the findings be able to support the Committee in the following areas:

· business planning and implementation

· development and implementation of research agenda

· mobilisation of technical expertise & advise

· management of Committees' capacity building initiatives

· dedicated administrative support

The second entails the training of the committee members. Based on the priority areas highlighted by members, the following is proposed:

Area identified Priority (in brackets) Intervention

i. The role and (High) Induction course:

functioning of · The role of

Parliament and the individual MPs

Portfolio Committee in the Committee · The powers and

functions of the

Committee (Rules 52 and 53)

· Public Service

structures

· Transformation issues

ii. Policy analysis and (High) Case study of a evaluation policy document · Focus on the

implications (with

respect to financial and

human resources) of policy implementation

iii. Budgetary process (High) Workshop on the

and MTEF budgetary process facilitated by expert

· Understanding the MTEF -as an

operational plan

· Understanding budget votes and programmes

· Committee role in budgetary process

vi. Public Service (High) Interactive Transformation training session

· Roles and responsibilities within the public sector

· Role and relationship between public servants and political leaders.

· Challenges of transformation

v. Other (Medium) 1. Time management

2. Language

3. Computer literacy

The training interventions listed above should also be augmented by on-site visits to departments and provinces to give Committee members a first-hand understanding of the internal dynamics impacting on the transformation process and constraints inhibiting the efficient and effective implementation of government policy.

CONCLUSION

Research findings indicate that the views of members about the Committee's capacity and general performance vary significantly. Individual members articulated training and development needs that fell within and outside the scope of the Committee. However, taking this into account the Project Team would like to make the following recommendations as far as follow up research is concerned:

a) Personal capacity profiles of MPs need to be developed, which can be kept in a database and be used as a point of reference whenever training is sought for the committee members in future. Such profiles, it is hoped, could be used for the purposes of designing an objective performance evaluation instrument for committee members.

b) The needs analysis be followed by a TRACER STUDY which will review the progress of the committee, track the performance of the members, and review the impact of the training that would have been implemented following the needs analysis.

Finally, it is important to note that, apart from the initial problems experienced by the research team, valuable and relevant information was provided by the MPs which is of extreme importance to the future of the committee and its effectiveness. The Project Team is very grateful to all those who assisted with this project.