The Commission Saves Former NCPB Employee from Unlawful Termination

A former employee of the National Cereals and Produce Board (NCPB) has a reason to smile after he was reinstated to his job following the implementation of a formal determination of the Commission on Administrative Justice (Office of the Ombudsman) which recommended that the Board reinstates him to continue serving as its officer with no loss of benefit.

The Commission found that the decision by the Board to retire the employee from service on account of age amounted to unlawful termination and that the Board did not have the power to retire the employee at the age of 60 years since he had not attained the mandatory retirement age for persons with disability.

Mr. Parminas Oyori Monayo, a former employee of the NCPB, complained to the Commission alleging unfair treatment and unlawful termination of his employment.  According to him, he retired from service in January 2023, however, before his retirement, he applied for an extension of retirement age from 60 to 65 years on the basis that he has a disability that is recognised by law. His application was however unfairly declined without any reason being given for the same.

This predicament impelled him to seek the intervention of the Commission to have the dispute resolved with a view to being retained in employment until he attains the mandatory retirement age for persons living with disability as provided for under Regulation 70(1)(b) of the Public Service Commission Regulations, 2020.

The Commission by way of inquiry took up the matter with the Managing Director, NCPB. The Board in its response to the Commission indicated that Mr. Monayo was involved in a road traffic accident on 1st February 2003 that resulted in his disability status and after that, he was transferred from Kedowa Depot to Nyansiongo Depot on humanitarian grounds in September 2004 to enable him to report for duty from his home, which was near the latter station.

The doctor’s report on the case dated 24th February 2006 indicated that his permanent incapacity was at 65 per cent and recommended that he be assigned light duties while he continued undergoing medical attention.  According to NCPB, the management decided to retain the officer in service until he attained the official retirement age of 60 years on 1st January 2023 even though he was not productive after being issued a notice for retirement on 7th March 2022.

He appealed on 25th March 2022 and requested an extension of retirement age to 65 years which is the retirement age for persons living with a disability. The management deliberated on his appeal and decided against extending his employment in line with Section 80(2c) of the Public Service Commission Act, 2017.

The Board further indicated that a decision to extend an employee’s period of service is at the employer's discretion depending on their contribution, the decision was made on the premise that the former employee was not productive.

Dissatisfied with the position taken by the Board, particularly on the assertion that “A decision to extend an employee’s period of service is at the discretion of the employer depending on their contribution.” The Commission wrote to the Public Service Commission (PSC) seeking clarification as to whether the decision to retire a person with disability at the age of 65 was discretionary.

In its response, the PSC stated that it had pronounced itself on the matter of declaring a public officer as a person living with disability and extending of retirement age to 65 years under Regulation 70(2) and (4) of the Public Service Regulations 2020.  Regulation 3 of the PSC Regulations 2020 guides that “subject to Articles 155(3)(a), 158, and 234 of the Constitution, these regulations shall apply to public bodies and all persons holding or acting in an office in a public body.

The PSC therefore indicated that they expected all public bodies to adhere to the provisions of the regulations and any process outside these regulations was considered a violation of the law.

Having analysed the response from both the Board and the PSC, the Commission had the following issues for determination; 

1. Whether the decision to retire a person with a disability at the age of 65 years is discretionary.
2. Whether the Complainant should continue to serve as an officer of the NCPB

The Commission having considered all the facts, provisions of the law, and precedent, vis a vis the issues for determination, found as follows;

1. The NCPB did not have the discretion on whether to retire Mr Monayo at 65 years or not.
2. The Commission found that the decision of the NCPB to retire Mr. Monayo at 60 years instead of 65 years was invalid.

In light of the above, the Commission, in exercise of its powers under Article 59(2)(j) of the Constitution and Sections 8(g) and 26(g) of the Commission on Administrative Justice Act, 2011, held and recommended as follows:

1. There was no need for Mr. Monayo to apply for an extension of his retirement age from 60 to 65 years since he is a person with disability within the meaning of Regulation 70 of the PSC Regulations.
2. The NCPB did not have the power to retire Mr. Monayo at the age of 60 years since he had not attained the mandatory retirement age for persons with disability. The purported retirement of Mr. Monayo from service by the Board on account of age amounted to unlawful termination.
3. The Commission directed the NCPB to recall Mr Monayo to continue to serve as an officer of the Board with no loss of benefits.
4. NCPB to report to the Commission on the steps taken in compliance with this determination within 30 days.

Following the determination of the Commission issued on 23^rd August 2023, the MD, NCPB in a letter to the Chief Executive Officer, PSC, and copied to the Chairperson, Commission on Administrative Justice confirmed compliance and implementation of the determination of the Commission.

“We acknowledge receipt of the letter dated 7^th December 2023 informing the Board to implement the formal determination of the Commission on Administrative Justice of recalling Mr. Parminus Oyori Mionayo who was a staff at the NCPB. This is to inform the Commission that the Board will reinstate Mr. Monayo from 1^st January 2024.”  Read a letter from the MD.

Mr Monayo in an appreciation letter to the Commission on 10^th January 2024 confirmed that he reported to work and thanked the Commission for the intervention.