PublicService_DisciplinaryProcedures__Amendment_Regulations2010v1
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PUBLIC SERVICE (DISCIPLINARY
PROCEDURES) (AMENDMENT)
REGULATIONS 2010
Public Service (Disciplinary Procedures)
(Amendment) Regulations 2010 Arrangement of Regulations
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PUBLIC SERVICE (DISCIPLINARY PROCEDURES)
(AMENDMENT) REGULATIONS 2010
Arrangement of Regulations
Regulation
1 Short Title .................................................................................................... 5
2 Regulation 2 amended - Interpretation ......................................................... 5
3 General Amendment ......................................................................................... 6
4 Regulation 3 amended ............................................................................... 6
5 Regulation 4 amended ............................................................................... 6
6 Regulation 5 amended ............................................................................... 7
7 Regulation 6 amended ............................................................................... 8
8 Regulation 7 amended ............................................................................... 9
9 New Regulation 7A ........................................................................................ 10
10 Regulation 11 amended ........................................................................... 11
11 Regulation 13 amended ........................................................................... 11
12 Regulation 14 amended ........................................................................... 12
13 New Part III ............................................................................................... 12
14 New Schedule I and II .............................................................................. 15
Public Service (Disciplinary Procedures) (Amendment)
Regulations 2010 Regulation 1
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PUBLIC SERVICE (DISCIPLINARY PROCEDURES)
(AMENDMENT) REGULATIONS 2010
PUBLIC SERVICE ACT
IN EXERCISE of the powers conferred by sections 21 and 22 of the Public
Service Act 2002, as amended, the Prime Minister with the consent of Cabinet
makes the following Regulations:
1 Short Title
(1) These Regulations may be cited as the Public Service (Disciplinary
Procedures) (Amendment) Regulations 2010.
(2) The Public Service (Disciplinary Procedures) Regulations 2003 shall be
referred to in these regulations as the Principal Regulations.
2 Regulation 2 amended - Interpretation
Regulation 2 of the Principal Regulations is amended by –
(a) deleting the definition of “Secretary” and substituting it with the following:
“Chief Executive Officer of the Commission” means the Chief Executive
Officer of the Public Service Commission appointed un er the Public Service
Act 2002; and
(b) inserting the following new interpretation where appropriate:
“Tribunal ” means the Public Service Tribunal established under the Public
Service Act 2002.
Regulation 3
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Regulations 2010
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3 General Amendment
The Principal Regulations is amended by –
(a) deleting “Head of Department”, wherever it appears, and substituting it with
“Chief Executive Officer”; and
(b) deleting “Secretary”, wherever it appears, and substituting it with “Chief
Executive Officer of the Commission”.
4 Regulation 3 amended
Regulation 3 of the Principal Regulations is repealed and replaced with the
following:
“3 Determination of a breach of discipline
(1) Subject to these Regulations, a Chief Executive Officer or the
Commission shall decide whether a breach of discipline is minor
or serious.
(2) Notwithstanding sub-regulation (1), the Commission may initiate
a disciplinary action on its own motion including any
disciplinary action against a Chief Executive Officer.
(3) A Chief Executive Officer shall refer a matter o the Commission
when there is a conflict of interest by reason of any relationship
with the employee or any of the employees involved.”
5 Regulation 4 amended
Regulation 4 of the Principal Regulations is amended by:
(a) deleting sub-regulation (1) and substituting it with the following:
“(1) The Chief Executive Officer may, upon finding that an employee has
committed a minor breach of discipline, impose on the employee the
following sanctions –
(a) issue written warning;
(b) reprimand the employee in writing or verbally;
(c) counsel the employee;
(d) require the employee to undertake training; or
(e) transfer the employee within the Ministry.”
(b) deleting sub-regulation (2) and substituting it with the following:
Public Service (Disciplinary Procedures) (Amendment)
Regulations 2010 Regulation 6
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“(2) A record of such a minor breach of discipline and action taken by the
Chief Executive Officer shall be given to the employee and a copy shall
be kept in his personal file.
(3) After each reprimand the employee shall sign an agreement with the
Chief Executive Officer acknowledging that he has been reprimanded.
(4) The repetition of minor breaches of discipline more than three times
shall constitute a serious breach of discipline.
(5) An employee who has been reprimanded more than 3 times shall be
penalised as follows -
(a) a deduction from his salary two weeks of his fortnightly pay; or
(b) forfeit 10 days of his annual leave entitlement.”
6 Regulation 5 amended
Regulation 5 of the Principal Regulation is amended by deleting sub-regulation (1)
and (2) and substituting it with the following:
“(1) In the case where an employee is alleged to have committed a serious
breach of discipline or repeated minor breaches of discipline, the Chief
Executive Officer or his authorised representative, shall inquire into the
matter.
(2) If the Chief Executive Officer determines that there has been a serious
breach of discipline, or repeated minor breaches of discipline, he shall
forward a complete report to the Chief Executive Officer of the
Commission, which shall include the following:
(a) the allegations against the employee;
(b) any complaint made against the employee, whether by a public
servant or a member of the public;
(c) the reasons that the breach is deemed by the Chi f Executive
officer as a serious breach of discipline;
(d) the facts gathered from the inquiry;
(e) official records or documents relevant to the serious breach of
discipline;
(f) a report from the Auditor General, if there is any;
(g) a report from the Tonga Police, if there is any;
(h) any internal correspondence with the employee relating to the
serious breach, including emails;
(i) any representation from the employee;
Regulation 7
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Regulations 2010
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(j) any statements from witnesses;
(k) any record of previous disciplinary cases committed by the
employee; and
(l) any other document that is relevant to breach of discipline,
Provided that the Chief Executive Officer or his Ministry shall not:
(i) make any recommendations regarding the allegations; or
(ii) do anything or omit to do anything or cause another Ministry to
do or omit to do anything that amounts to disciplinng the
employee.
(3) If the Chief Executive Officer determines during or after an inquiry
under sub-regulation (1) that there is no serious breach of discipline has
been committed by the employee, he shall end the inquiry or record in
writing that the inquiry has concluded that there was no serious breach
of discipline, and the reasons for making such determination, and such
written determination shall be kept in the employee’s p rsonal file.
(4) Where it appears that a criminal offence may have been committed by
an employee, the Chief Executive Officer or the Commission shall
report the matter to the Police and the Chief Executive Officer shall
forward a complete report under sub-regulation (2) to the Chief
Executive Officer of the Commission.”
7 Regulation 6 amended
Regulation 6 of the Principal Regulations is repealed and replaced with the
following -
“6 Serious financial irregularity
(1) In cases of serious financial irregularity, the–
(a) Auditor General; or
(b) a Chief Executive Officer,
shall initiate disciplinary action by giving a complete report to
the Chief Executive Officer of the Commission or by the Chief
Executive Officer of the Commission to the Charge Formulation
Committee if the breach was committed by an employee of the
Office of the Commission.
(2) The Auditor General or the Chief Executive Officer who made
the report under sub-regulation (1) may make recommendations
to the Committee or Commission on any serious financial
irregularity.”
Public Service (Disciplinary Procedures) (Amendment)
Regulations 2010 Regulation 8
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8 Regulation 7 amended
The Principal Regulations is amended by repealing regulation 7 and replacing it with
the following:
“7 Procedures for serious disciplinary charges
(1) A report of serious breach of discipline or repeated minor
breaches of discipline shall be dealt with as follows —
(a) within 10 working days of receipt of the report, the Chief
Executive Officer of the Commission shall convene th
Charge Formulation Committee, to hear the presentatio
of the report from the relevant Chief Executive Officer or
his representative;
(b) within 15 working days of receipt of the report, the Charge
Formulation Committee shall charge the employee.
Provided that if the Charge Formulation Committee rquires
further information to clarify aspects of the report, the employee
shall be charged within 10 working days from receipt of that
further information.
The Charge Formulation Committee shall also recommend to the
Commission whether the employee should be suspended from
duty without pay. If the Commission decides for the employee to
be suspended, the employee shall be informed in writing of his
suspension by the same deadline as for the charging of the
employee (afore-stated in paragraph 1 and 2 of this same sub-
regulation).
(c) within 10 working days of receiving the charge, the
employee may submit a written representation to the
Commission in response to the charges, and either:
(i) admit the charge, and include mitigation; or
(ii) dispute the charge and make submissions as to
why he disputes the charges, and may provide
other evidence.
(d) within 10 working days of receipt of the representation
from the employee, the Chief Executive Officer of the
Commission shall submit the matter to the Commission
along with his recommendations;
(e) within 10 working days of receipt of the recommendations
of the Chief Executive Officer of the Commission by the
employee, the employee may make further representatio
in writing or orally to the Commission;
Regulation 9
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Regulations 2010
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(f) after receipt of the case under paragraph (d) or hearing
further from the employee under paragraph (e) the
Commission shall decide the case, and if the employee is
found to have committed a serious breach of discipline, the
Commission shall impose the appropriate sanctions as et
out under these regulations.
(2) The charge laid against the employee shall include the following:
(a) a copy of the report from the Chief Executive Officer;
(b) a copy of the report of the Auditor-General, if any;
(c) information about the time within which a written reply
may be made; and
(d) a copy of the Code of Ethics and Conduct and these
Regulations.
(3) Where the employee does not reply within the spcified time
under this Regulation, the Chief Executive Officer of the
Commission shall proceed with the matter as if the reply has
been received.
(4) The Chief Executive Officer of the Commission may extend the
time required for a reply but such extension shall not exceed one
month.”
9 New Regulation 7A
The Principal Regulations is amended by inserting the following new regulation 7A:
“7A Establishment, functions and powers of the Charge Formulation
Committee
(1) The Charge Formulation Committee is hereby establi hed and
shall consist of the following members:
(a) the Chief Executive Officer of the Commission, who shall
be the chairman;
(b) the Auditor-General or his representative;
(c) the Solicitor General or his representative; and
(d) the secretariat shall be from the Commission.
(2) The Charge Formulation Committee shall have the following
functions:
(a) consider the report received from a Chief Executive
Officer or the Commission under regulation 5; and
(b) seek further clarification on the report from the Chief
Executive Officer or any other person.
Public Service (Disciplinary Procedures) (Amendment)
Regulations 2010 Regulation 10
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(3) The Charge Formulation Committee shall have the following
powers:
(a) lay the appropriate charges against the employee;
(b) recommend to the Commission to suspend the employee;
(c) direct the Chief Executive Officer or his Ministry to
provide within 10 working days further information to
clarify the report; and
(d) dismiss an allegation of serious breach of discipline due to
lack of sufficient evidence.”
(4) Where a report is considered by the Charge Formulation
Committee in relation to any employee of a Ministry headed by a
member of the Committee, such member shall be present in the
meeting only to answer questions from the Committee m mbers,
but shall not participate or be present during the discussion of the
charges.”
10 Regulation 11 amended
Regulation 11 of the Principal Regulations is repealed and replaced with the
following -
“11 Service of documents
(1) Personal service of any document is required for the purposes of
any proceedings before the Charge Formulation Committee, the
Commission or the Tribunal.
(2) Service shall be effected by delivering the document to the
person to be served or by bringing it to his notice if he refuses to
accept it.
(3) Where for any sufficient reason personal servic of any
document cannot be effected in the manner prescribed by sub-
regulation (2), the Commission may, on such terms and
conditions as it thinks fit, make an order giving leave for steps to
be taken to bring the document to the knowledge of the person to
be served by advertisement or in some other manner.
(4) Where any such order has been carried out, the steps taken may
be called substituted service, and such service shall have the
same effect as personal service.”
11 Regulation 13 amended
Regulation 13 of the Principal Regulations is repealed and replaced with the
following -
Regulation 12
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“13 Matters before the Commission
(1) The Chief Executive Officer of the Commission shall forward a
matter under regulation 7A together with the charge, th report
from the Chief Executive Officer, the Committee’s
recommendation, to the Commission.
(2) The Commission shall -
(a) consider the case within 30 days from the date of filing of
the notice of appeal provided that the employee shall have
the right to make oral presentation if he so requests; and
(b) decide the case and the Chief Executive Officer of the
Commission shall advise the employee in writing of its
decision.”
12 Regulation 14 amended
Regulation 14 of the Principal Regulations is repealed and replaced with the
following -
“14 Effect of dismissal
An employee dismissed from the Public Service shall forfeit all
benefits, privileges and entitlements.”
13 New Part III
The Principal Regulations are amended by adding the following new PART III after
regulation 14 and numbered accordingly -
“PART III - APPEAL TO THE TRIBUNAL
15 Interpretation
In this Part –
“appellant” means the employee who is appealing a decision of the
Commission to the Tribunal.
16 Appeals
(1) An employee has the right to appeal to the Tribunal against any
decision of the Commission.
(2) An appeal shall be in the prescribed form set out in Schedule I of these
Regulations.
Public Service (Disciplinary Procedures) (Amendment)
Regulations 2010 Regulation 13
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(3) The employee shall lodge his appeal with the Secretary of the Tribunal
within 30 days following receipt by the employee of the written
communication of the decision of the Commission.
(4) At the same time as he serves notice on the Tribunal, the employee
shall serve a copy of the notice on the Commission.
(5) The appellant shall pay the prescribed fee set out in Schedule II to these
Regulations to the Secretary of the Tribunal.
17 Contents of notice
The appellant’s notice shall be signed and dated by or on behalf of the
appellant and shall state –
(a) the name and the address for the service of the app llant;
(b) the name and address of the Tribunal;
(c) details of the decision of which the application s made; and
(d) the grounds of appeal.
18 Action on receipt of application
The Secretary of the Tribunal shall acknowledge recipt of any notice served
under regulation 16.
19 Appearance before the Tribunal
The Tribunal may, if it thinks fit, give the appellant an opportunity of being
heard.
20 Decision of the Tribunal
(1) The Tribunal shall give its decision within 14 days of receipt of the
application.
(2) The decision shall be given in writing, signed and dated by the
President of the Tribunal and shall contain a summary of its reasons.
(3) A copy of the decision shall be sent to the applicant and the
Commission.
21 Extension of time
The Tribunal may extend any time specified by these Regulations upon such
terms as it thinks fit, if it considers that the justice of the case requires it.
22 Disclosure of documents
(1) The Commission and any party shall comply with any request in
writing by the Tribunal to deliver to it any document within their power
or control.
(2) The Secretary of the Tribunal may supply copies of any documents
obtained under sub-regulation (1) to the parties and y such copy
document shall be used only for the purposes of the cas .
Regulation 13
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23 Withdrawal of proceedings
(1) The appellant may withdraw his case by the servic on the Tribunal of
written notice to that effect.
(2) The Secretary of the Tribunal shall send a copy of a notice served under
sub-regulation (1) to the Commission.
24 Arrangements for hearings
(1) The Tribunal may determine a case before it withou an oral hearing if
all the parties so agree in writing.
(2) The Tribunal shall set a date, time and place for a hearing.
(3) The Secretary of the Tribunal shall send to the parties, notice of the
date, time and place fixed for the hearing.
(4) The Tribunal may –
(a) adjourn a hearing to such date or time as it may determine; or
(b) alter the place of any hearing;
and, if any of the above take place, the Secretary shall notify those
persons notified under sub-regulation (2), of the revised arrangements.
25 Conduct of proceedings at hearings
(1) The Tribunal may issue directions as to the conduct of hearings.
(2) The Tribunal may adopt any method of proceeding at a hearing that it
considers to be fair.
(3) Hearings will be informal.
26 Representation at hearings
At any hearing, a party may conduct his case himself or may be represented
by counsel, a solicitor, or, with the permission of the Tribunal, any other
person whom he appoints for that purpose.
27 Failure to attend
If any party fails to appear at a hearing, without reasonable cause, the
Tribunal may hear and determine the case in the party's absence and, if the
party is the appellant and the hearing is the final hearing of the case, it may
dismiss the case.
28 Decision of the Tribunal
(1) At the conclusion of any hearing the Tribunal may announce its
decision orally.
(2) A decision of the Tribunal which finally determines an appeal shall be
recorded in an order.
(3) The Tribunal shall send a copy to the appellant and to the Commission,
Public Service (Disciplinary Procedures) (Amendment)
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of the order referred to in sub-regulation (2), and a summary of the
facts and reasons on which the decision is based, signed and dated by
the President.
(4) Except where the Tribunal provides for the decision to have effect on a
specified date, the decision shall have effect on the date of the order or,
if no order was made, on the date when it was notified to the appellant.
(5) The Commission shall publish the decision of the Tribunal, after
removing the identity of the employee or all material particulars which
may lead to the employee being identified.
29 Recovery of loss
(1) Where an employee has been disciplined under these Regulations and
the Committee, Commission or Tribunal is satisfied that the breach has
resulted in an assessable loss to Government, it may direct that any
amount up to the full extent of the loss be recovered f om the employee
by deduction from the employee’s salary or entitlements.
(2) The deduction referred to in sub-regulation (1) shall be no more than
30% of the gross payable salary of the employee, provided that if the
employee is dismissed, the total amount of the assessable loss owing
shall be deducted.”
14 New Schedule I and II
The Principal Regulations are amended by adding the following new Schedules I
and II -
“ SCHEDULE I
NOTICE OF APPEAL
1. To
Secretary of the Public Service Tribunal
NUKU‘ALOFA
I / We _______________________________________
of _______________________________________
hereby give notice that I/we appeal to the Public Service Tribunal under section
_____ of the Public Service Act, against the decision made by the Public Service
Commission on :
Date ________________________ Decision number _______________
Regulation 14
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2 Grounds of Appeal
The grounds of appeal are as follows:
3 Address for Service
All communications regarding the
Appeal should be addressed to:
_____________________________
_____________________________
_____________________________
Signature ________________________
Date ________________________
If the notice is signed on behalf of the appellant,
the person who signs it must state below in what
capacity or authority they sign.
_________________________________
SCHEDULE II
FEES
Appeal to the Public Service Tribunal $100”
Made at Nuku’alofa this 8th day of December 2010.
