Friday, October 23, 2020

Judgment on former DBES director’s early retirement case reserved

Industrial Court judge Davie Devillers has reserved judgment in a case in which the former Director of the Department of Building and Engineering Services, Jimmy Oitsile Modise, is suing the government for unfair dismissal.

Modise’s court application sought the industrial court to declare that his compulsory retirement from the public service was procedurally and substantively unfair or unlawful and should be set aside. He also wanted his contract of employment to be regarded as valid until properly terminated, and for the government to pay the costs of the case.

Modise was first employed by government in May 1974 as an accountants clerk, and he rose through the ranks until he was appointed Director of DBES in 2003. Because he was appointed on permanent and pensionable terms, he was governed by the Government General Orders and Public Service Act. Modise’s attorney, Boingotlo Toteng, told the court that Government General Orders provide that an officer who is appointed on pensionable terms will retire on reaching the age of 60.

Modise received a letter dated 19 May 2008, signed by the permanent secretary to the President, and retiring him from the public Service with effect from 30 May of the same year. In so doing the PSP invoked section 15 (3) of the Public Services Act and clause 18:3 of the General Orders. The letter also provided that he would be paid three months salary in lieu of notice. At the time of his forced retirement Modise was a few months from turning 54 years of age.

Toteng argued that in terms of the Public Service Act, an officer has a right, at any time before or after attaining the age of 45 years, to give a written notification of his intention to retire. He added that Modise never opted not to retire at 45 because he intended to retire at 60. He also said that the forced retirement surprised his clients, especially since he had never expressed any wishes to that effect.

“At no point did the appointing authority give any indication that it intended to retire my client, which made him think that they had waived the discretion to retire him,” said Toteng.

The attorney also argued that while the Public Service Act empowers an appointing authority to retire a public officer on attainment of 45 years and anytime thereafter, it is important to have regard to the provisions of general orders, more particularly clause 13:3:1, which requires the permanent secretary to indicate to the director, giving full explanations, if he feels that the services of a pensionable officer should be dispensed with on his attaining the age of 45 years.

Thus, argued Toteng, Modise’s retirement ought to have been preceded by a recommendation in writing accompanied by full reasons for the early retirement. He said that there was never any undertaking of that nature by the PSP, which renders the early retirement unlawful.

In response, Isaac Kamwendo, of the Attorney General, countered that section 58:1 of the General Orders provides for an appeal. He added that in this case, if he feels that the PSP made an adverse decision, Modise should appeal to the Public Service Commission. He said Modise has not followed the right procedure, and that his rushing to court before exhausting available domestic remedies is fatal to his application.

Kamwendo also submitted that Modise’s retirement was not forced.

“Section 4 of the Public service Act stipulates that the PSP shall be the head of the public service and shall, subject to the constitution and this Act, have vested in him the administration of the public service.

In terms of Section 6(1) (a) of the Public Service Act, the power to appoint, remove or exercise disciplinary control over any public officer is vested in the PSP for any public officer on the super scale grade E2 and above. That Modise was employed as a director at grade E1 prior to his retirement gives the PSP the power to appoint remove or exercise disciplinary control over him,” he concluded.

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