ADV TERRY MOTAU SC IMRAAN MAHOMED SMS HANDBOOK STATUS & EFFECT IN LAW Senior Management Service - Handbook STRUCTURE OF PRESENTATION Introduction – what is the SMS Handbook? Legal Status of Handbook. Where does the Handbook apply? Litigation emanating from SMS Handbook : 1. Precautionary Suspensions; 2. Heads of Department. Performance Management & Development (Chapter 4). Conclusion. What is the SMS Handbook? • Prepared by: Dep of Public Service & Administration • Ms Fraser-Moleketi (2003) described purpose of Handbook as being set out: “…., in clear and concise terms, (the) handbook will be an invaluable tool to guide and inform, … senior managers in the Public Service…” What is the SMS Handbook (cont) • • First edition of Handbook - January 2001. Current 2003 edition. Consists of following Chapters: (1) Recruitment and Selection (2) Remuneration and Conditions of Service (3) Performance Management and Development (4) Competency Framework (5) Ethics and Conduct (6) Misconduct and Incapacity (7) Employment of Heads of Departments (8) Financial Disclosure What is the SMS Handbook (cont) • Applies to (PSA Regulations, Chapter 4 I.B.1) : - Persons employed before 1 Jan 2001 at grade 13 and above. - Persons employed after 1 Jan 2001 in capacities referred to in Regulation 11B of Chapter 4. - Regulation 11B not entirely clear as it deals with employment capacities. The Legal Status of Handbook • Issued in terms of Regulation 1D of Chapter 4 of the Public Service Regulations, 2001. • The Public Service Act, 1994 and PSR, 2001 states: "The Minister may include any or all of the determinations, directives, guidelines and provisions applicable to the SMS in a Handbook for the SMS." • Certain provisions of Handbook applicable to the SAPS. The Legal Status of Handbook (Cont) • Contains both peremptory and advisory provisions (clause 2.3). • Authoritative ranking of Handbook depends on the chapter: - Some chapters are a result of directives issued by the Minister, - Other chapters are summaries of applicable legislation; and - Others serve merely as a guideline in achieving government aims. • 2 resolutions of the PSCBC deal with the SMS specifically: • • Resolution No. 13 of 1998; Resolution No. 9 of 2000. The Legal Status of Handbook (Cont) • Chapter (2) - Remuneration and Conditions of Service - applies to SMS members as well as personnel employed in : - Correctional Services. - Defence. Where does the SMS Handbook feature • Wide application - see various Chapters • We will only consider: 1. Litigation (Chapter 7 – Misconduct & Incapacity & Chapter 8 - (Heads of Department)) 2. Performance Management and Development (Chapter 4) Litigation emanating from SMS Handbook – Precautionary Suspensions • • Majority of reported cases relate to chapter 7 (misconduct and incapacity) and specifically clause 2.7(2) – Precautionary suspensions. Manamela Nnanda Ida v Department of Cooperative Governance: Limpopo Province & Others (as yet unreported), Sep 2013, LC: - Application to uplift suspension - Court held that: “the conditions of employment of the applicant are subject to specific regulatory provisions, … the SMS Handbook … will accept that the provisions of the SMS Handbook form part and parcel of the applicant’s employment conditions.” Litigation emanating from SMS Handbook (cont) - Suspensions Held: - A proper reading of chapter 7 is that where it comes to the assessment of whether conduct ito the Handbook is fair, LRA applies. (See: Introduction to Chapter 7, clause 1.2). Also held that: - The Handbook does not detract from the LRA dispute resolution mechanisms. Litigation emanating from SMS Handbook (cont) - Suspensions • In Chibi v MEC: Department of Co-operative Governance and Traditional Affairs Mpumalanga Province & Another (2012) 33 ILJ 855 (LC), held that the Handbook incorporates the LRA's Code of Good Practice. • No general right of fairness to be implied into the Handbook in context of precautionary suspensions Manamela Nnanda Ida v Department of Co-operative Governance: Limpopo Province & Others. Litigation emanating from SMS Handbook (cont) - Suspensions • • Clause 2.7(2)(c) of Handbook: “If member is suspended …, the employer must hold a disciplinary hearing within 60 days. The chair of the hearing must then decide on any further postponement” Important principles : Lekabe v Minister, Department of Justice & Constitutional Development  JOL 23134 (LC): Suspended ito the Handbook. Suspension exceeded 60 day period. Department instituted disciplinary proceedings after the expiry of the 60 days. Lekabe sought an order uplifting suspension and that the Department lost its right to institute disciplinary proceedings after expiry of 60 days. Held that once the 60 days lapse, suspension is unlawful (if not extended by the chairperson in terms of the Handbook). However, the expiry of the 60 days does not result in the employer losing its disciplinary rights. Litigation emanating from SMS Handbook (cont) - Suspensions In Mashiane v Department of Public Works  JOL 30129 (LC), held the 60 day suspension limit is peremptory and that any extension beyond the 60 days is at the discretion of the chairperson. Handbook does not provide for the right to be heard prior to suspension or the providing of reasons for suspension. (see: Member of the Executive Council for Education, North West Provincial Government v Gradwell (2012) 33 ILJ 2033 (LAC) & Manamela Nnanda Ida v Department of Cooperative Governance: Limpopo Province). Litigation emanating from SMS Handbook – Chapter 8 (Heads of Dept) • • Clause 6.2 – serving employee appointed to post of HoD automatically loses his status as a permanent employee. Premier of the Northern Cape v Selemela  JOL 27556 (NCK): - Selemela employed permanently by Northern Cape Provincial Government as Deputy DirectorGeneral Corporate Services. - Later accepted fixed term position of HoD in the Department of Transport, Roads and Public Works (Northern Cape). - Question was did Selemela waive his permanent status when appointed HoD? Litigation emanating from SMS Handbook – Chapter 8 (Heads of Dept) • • Full bench found on facts that employee did not waive his right to permanent employment. “ I wish to state obiter, as opposed to ratio decidendi, that the court a quo’s observation that clause 6.2 of … the Handbook is very drastic and takes away permanent employees’ job security and adversely affect their long term benefits, particularly of those who are appointed HoDs long before their retirement age is due, has merit. I would add that the clause is also arbitrary. It boggles the mind, that for example, a 32 year old employee who is in the permanent establishment of Government and who is appointed HoD for one or two years could find herself unemployed at the end of that short period on the basis of this clause….” Tlaletsi J Performance Management and Development (Chapter 4) • • • • • • • • Clause 8.1 – All members of the SMS shall enter into Performance Agreements (‘PA’) by no later than 31 March annually. Clause 8.3 review of PA’s on quarterly basis. Clause 10 – Contents of PA. Clause 10.4 – Agreement on measurement of Key Result Areas. Clause 1.6 – Agreement on personal development plan. Chapter 7 (Misconduct and Incapacity) provides that Chapter must be applied in cases of poor performance. Non-compliance with incapacity processes ito Chapter 7 will give rise to claims of breach in the Labour Court. It will be for the courts to give expression to the incapacity process read with the PA. CONCLUSION • • • • Handbook an important instrument in the public service. Has given rise to disputes on rights and interpretation and will no doubt continue to do so in future. Important to bear in mind that not all provisions are mandatory. But, where provisions are advisory does this not give rise to review power arising under section 158(1)(h) of the LRA or even PAJA? At the end of the day – the Handbook is far from being “in clear and concise terms” as suggested by erstwhile Minister 11 years ago.