Series 9 - Frequent Errors in Disciplinary Action

  • One of the functions of the Public Services Commission Malaysia (PSC) is to act as the authority for the Disciplinary Appeal Board for officers aggrieved by the Disciplinary Board’s decisions. This applies to officers serving in the General Public Service of the Federation, joint service and public services in the state of Penang, Malacca, Negeri Sembilan and Perlis.
  • In the course of weighing a disciplinary appeal, the Public Services Commission finds that quite a number of Disciplinary Actions exercised by the relevant Ministries are not in order and contains serious technical mistakes.
  • In an effort to reduce the occurrence of common mistakes practiced by Disciplinary Boards in the Ministry or Department, the Public Services Commission hereby lists the mistakes as laid out in Schedule 1 as reference and guide, so as to ensure that the same mistakes are not repeated.
  • This guide will allow officers/secretariat alike who are directly involved in the disciplinary action so as to ensure that the disciplinary actions are managed efficiently and effectively.
Schedule 1 : Frequent Errors and Rectifications
1. Appeal letter delivered late and addressed to wrong address
BMost disciplinary appeals were submitted late and addressed to the Head of Department and the Chairman of the Department’s Disciplinary Board Regulation 15(1) and 15(2) of the Public Services Disciplinary Board Regulations 1993 requires the aggrieved officer to submit his appeal within 14 days from the date the decision was communicated to the officer in writing. The appeal must be addressed to the Chairman of the Public Services Disciplinary Appeal Board, at the Public Services Commission through the officer’s Head of Department. Legally, the Public Services Commission is not obligated to consider any appeal which has been submitted late or was not addressed correctly because it is assumed that the appeal is non-existent.
2. The wrong Regulation was cited in the Disciplinary Action
Some Disciplinary Boards of Department have cited the Public Officers (Conduct and Discipline) 1993 (Amendment 2002) Such Regulation does not exist. The correct regulation that should be cited is the Public Officers (Conduct and Discipline) 1993 of which includes the amendments passed in 2002. It is important to note that the 1993 Regulation was only amended and was not replaced by a newly drafted Regulation in 2002.
3. Head of Department’s review pertaining to the Appeal
The Head of Department did not provide any review pertaining to the officer’s Appeal. This contradicts with the provisions provided in Regulation 15(2) of the Public Services Disciplinary Board Regulation 1993 It is important to have the Head of Department’s review because it enables the Disciplinary Appeal Board to make its consideration. This includes reviews which states ‘No reviews provided’. It is only fair if the Head of Department provides a review with respect to the officer’s appeal. This is especially so if it is a case involving the department and other officers. For example, if the officer claims that despite having applied for leave on one of the dates he was accused of being absent without leave, his leave application was not approved by the Head of Department. If this claim is not reviewed, the decision may be favorable to the officer.
4. Grounds for decision was not provided for by the Department’s Disciplinary Board
Most Disciplinary Boards of Department do not state the grounds for its decision. When an aggrieved officer makes an appeal, the Chairman of the Disciplinary Board provides a review and not grounds of the Disciplinary Board’s judgement/decision as required by Regulation 15(3), of the Public Services Disciplinary Board Regulations 1993. Regulation 15(3), Public Services Disciplinary Board Regulations 1993 states that the grounds of judgement/decision relied upon by the Disciplinary Board will be required to be submitted along with the officer’s appeal. In the event, the grounds of the judgement is recorded in the meeting minutes, the Disciplinary Board will not be required to provide any additional review. Remember: what is required/ needed is the Department’s Disciplinary Board’s grounds of decision, and not the Chairman of the Department’s Disciplinary Board’s review.
5. The Head of Department did not provide any reviews
Some of the reviews concerning the disciplinary appeal was made and signed by an officer other than the Head of the Department. Regulation 15(2), Public Services Disciplinary Board Regulations 1993 provides that it is the responsibility of the Head of Department to review the officer’s appeal (if any), and no other officer. The term ‘Head of Department’ defined in the Public Officers (Conduct and Discipline) 1993, is defined loosely so as to allow the department to acquire a suitable officer to exercise this responsibility. The act of requesting an officer, who is the Head of Department as well as a member of the Department’s Disciplinary Board; to provide the reviews should at all times be avoided.
6. Reviews that are not relevant
Sometimes, the Head of Department and/or the Chairman of the Department’s Disciplinary Board include reviews that are irrelevant to the charge brought against the officer. For example, the officer’s previous disciplinary action was mentioned by the Head of Department or the Chairman of the Department’s Disciplinary Board. It is important to avoid from including irrelevant statements/reviews which could have a prejudice and biased impact on the officer. Should this happen, this could cause the case to be set aside in the event the officer challenges it in court.
7. Inaccurate charge
Some of the Department’s Disciplinary Board charges are inaccurate. For example, the intended charge was for a surcharge action. Instead, the officer was given a warning as a sentence whereas in the charge, there is no mention of a disciplinary action being taken against the officer. Disciplinary action brought against the officer must be clear and specific. The Department’s Disciplinary Board’s decision to take a disciplinary action and surcharge against the officer should be stated in the charge so as to enable him to defend himself.
8. Ambiguous charge
An ambiguous charge makes it difficult for an officer to defend himself thus diminishing the Government’s chances of winning this case in the event it is challenged in court All charges must be clear, precise and specific. The charge must at least contain the types, dates, time and place of the breach of code of conduct. For example, if the officer allegedly made a lewd sign, the following issues must be explained. Such as, how, when and where the sign was made. It would be even better if witnesses were brought forward to verify the claim.
9. Inaccurate decision/ judgement
Some Department’s Disciplinary Board’s ruling are different than the provisions provided for in Regulation 38, Public Officers (Conduct and Discipline) 1993. There are cases where the officers were ordered to replace the days they were absent from duty with overtime duties; ordered to reimburse all losses suffered by the Department due to property damages. All sentences must be done in line with the provisions provided for in Regulations 38(b) and 39(2),(3),(4),(5) and (6) Public Officers (Conduct and Discipline) 1993, that is not more than 7 days of emolument. Penalties in forms other than what is provided for must be administered according to other procedures.
10. Penalty/sentence that is not commensurate
Penalty/sentence imposed does not commensurate with the offense committed. Where a heavy penalty/ sentence were imposed for a minor offence, or where grave offence was committed but a lenient penalty was imposed instead. There are officers who were dismissed for converting a government cheque owned by officers in the department with cash. This is practiced in the department prior to him being charged. There is no doubt that the act was wrong., but such act did not cause the government to suffer any loss. There are also cases where the officers were absent without leave without any permission or reasonable cause for a period of months or years but the sentence was only ‘forfeiture of emoluments’. Sentences, especially in dismissal and demotion cases must commensurate with the offences committed by the officers. This is important because of late, the court tends to question the rationale of decisions made by the Department’s Disciplinary Board.
11. Only liable to pay cut
Officers who are absent without leave or prior permission or without any reasonable excuse are usually required to return the amount of pay paid to them for the days that the officer was absent without leave. No further action was taken in relation to this because the Head of Department assumes that the act of deducting the officer’s pay would be sufficient. Despite the fact that a pay cut has been imposed on the officer, a disciplinary action should be considered if it is proven that the officer was absent without leave, permission or reasonable excuse. Please be reminded that the act of deducting the officer’s pay is done pursuant to the General Order 14A, Chapter C is just an administrative action in accordance to the ‘rate for the job’ principle. If the officer is convicted, a ‘forfeiture of emolument’ could be imposed on the officer. However, the execution of the same penalty is prohibited from being done twice.
12. Different decisions
The decision communicated to the officer is different from the decision made in the Disciplinary Board of Department’s meeting. Sometimes, the decisions stated in the Department’s Disciplinary Board’s meeting is different from the decision communicated to the officer. It is the duty of the Department’s Disciplinary Board to ensure that all decisions communicated to the officer is the same as the decision stated in the meeting minutes. The decision letter or the meeting minutes should not be exaggerated.
13. Department’s Disciplinary Board’s decision letter was not signed by the Chairman or any of the members on behalf of the Chairman
The Disciplinary Board of Department’s decision letter was signed by officers who are not authorized to do so. Regulation 53, Public Officers (Conduct and Discipline) 1993, states that all correspondences between the Disciplinary Authority and the officer must be signed by the Chairman or any other member on behalf of the Chairman.
14. The number of charges between the charge and the Department’s Disciplinary Board’s meeting minutes are different
Some Department’s Disciplinary Board states that the decision was made for 2 charges. However, the officers charge letter only states one charge.
For example: In a charge letter, the officer was charged with only one charge, that is, absent without leave. Nonetheless, in the decision letter, the officer was dismissed based on 2 charges.
The Department’s Disciplinary Board must ensure that the decision is consistent with the charge brought against the officer. If the officer is charged with one charge, the Department’s Disciplinary Board must consider the case based on that charge only. The Department’s Disciplinary Board should not take into consideration other charges than the one(s) raised in the charge. Any additional charge other than the one’(s) stated in the charge could affect the officer’s right to defense.
15. Strange results
In some cases, officers are called to report for duty after having been absent for a year. Upon re-entering the service, a disciplinary action was taken and subsequently, the officer was dismissed. In his appeal, the officer appears to be perplexed as to why he was dismissed, whereas the Head of Department himself had requested him to report for duty? The act of instructing the officer to report for duty must be done at the early stage of his absence. Whether the officer reports for duty or otherwise, the disciplinary action must proceed. The act of instructing the officer to report for duty after a long period of time of being absent gives the impression that they have been forgiven. It would seem odd if the officer was sentenced after he reports for duty. Especially so, if the officer was dismissed. It could be presumed that the Disciplinary Board does not understand the disciplinary procedure.
16. Responsibilities of the Head of Department
In an effort to provide emphasis on the importance of the Head of Department’s role, the Public Officers (Conduct and Discipline) 1993 which was accordingly amended and enforced on 20.6.2002, provides that the responsibility of the Head of Department in a disciplinary action were put in the initial part of the regulation. That is in Regulation 3C. The Head of Department’s awareness pertaining to the responsibilities in enforcing disciplinary rules in the respective agencies could be improved. The integrity of a Head of Department and their agencies will definitely be disputed and not taken seriously by its subordinates. There is no evidence to show that their Heads of Department are serious in complying with Regulation 3C, Public Officers (Conduct and Discipline) 1993.
17. Errors in using Regulation 36 and Regulation 37
In some cases, the Department’s Disciplinary Board was not accurate in determining the type of offense or the purpose of a disciplinary action. The type and intention of the Disciplinary Board stated in the charge letter must be consistent with the Department’s Disciplinary Board’s authority. For example, according to the type of disciplinary punishments intended to be imposed on the officer, either with dismissal or demotion (Regulation 37) or without dismissal or demotion (Regulation 36).
18. Wrong date of charge
Some Department’s Disciplinary Boards issue a charge on the same date the sentence/punishment was made. Punishments should not be imposed on the same day of the date of charge. In the event the identical dates were not a mistake, this would mean that the natural justice and right to be heard principle were not adhered to. Regulation 36(1) and 37(2), Public Officers (Conduct and Discipline) 1993, states that the accused is given the opportunity to submit his representation in reply to the charge brought against him within 21 days from the date of receipt of the charge.