Administrative Investigation and Discipline under Civil Service Law No. 81 of 2016: Employee Rights, Penalties and Appeal Deadlines

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Many people ask us: “How is an administrative investigation of a civil servant conducted?”, “What disciplinary penalties can be imposed on a government employee?”, “What is the deadline for a grievance against a penalty?” and “When does a disciplinary offence become time-barred?”. In short: no penalty may be imposed on a public employee until he or she has been investigated in writing, heard and allowed to present a defence; the penalties are exhaustively listed in Civil Service Law No. 81 of 2016, and the employee may file a grievance against the penalty and challenge it before the disciplinary courts within the statutory time limits.

The purpose of discipline in the civil service

Discipline is the means by which the administration ensures the regular and continuous functioning of the public service. It is not retaliation against the employee, but a tool to deter the employee and others and to correct deficiencies in performance. The disciplinary system rests on a balance between the administration’s authority to hold wrongdoers accountable and the employee’s right to safeguards against arbitrariness.

How do disciplinary, criminal and civil liability differ?

The three forms of liability are independent: an employee may be held disciplinarily, criminally and civilly liable for the same act at the same time without this amounting to double punishment.

Legislative framework

• Civil Service Law No. 81 of 2016 and its Executive Regulations: the general law governing civil servants of the State, regulating their duties, offences, penalties and the authorities competent to investigate and discipline.
• State Council Law No. 47 of 1972: regulates the disciplinary courts and the Supreme Administrative Court, disciplinary proceedings and challenges against disciplinary decisions and judgments.
• Administrative Prosecution Law No. 117 of 1958: regulates the Administrative Prosecution Authority’s jurisdiction to investigate financial and administrative offences and to bring disciplinary proceedings before the disciplinary courts.

What is a disciplinary offence?

Any act or omission by an employee that departs from the requirements of official duty or undermines the dignity of the office, whether committed inside or outside the workplace. It is administrative in nature and independent of any criminal offence, even where both arise from the same facts.

It has three elements:

• The material element: a tangible act or omission constituting the breach of duty; mere thought or intention is not enough.
• The mental element: the employee’s culpable will, whether intentional or through negligence and lack of care.
• Employee status: the person must have been a public employee at the time of the act.

Unlike criminal law, the legislature does not list disciplinary offences in a closed catalogue; it defines duties and prohibitions in general terms. Accordingly, the principle of nullum crimen sine lege does not apply to the offence, whereas the principle of nulla poena sine lege does apply to the penalty.

Forms of disciplinary offences

• Breach of official duties: such as unauthorised absence, negligence at work and disobeying lawful orders of superiors.
• Prohibited conduct: such as disclosing official secrets, holding another job without authorisation and accepting gifts or benefits because of one’s position.
• Conduct outside the scope of the office: personal behaviour that undermines the dignity of the office or public trust in it.

When is disciplinary liability excluded?

• Superior orders: where the employee committed the offence in execution of a written order from a superior despite having warned the superior in writing of the irregularity, liability rests solely with the person who issued the order.
• Force majeure: an unforeseeable and irresistible external event that makes performance of the duty impossible.
• Necessity: a grave and imminent danger that compels the employee to commit the offence in order to avert it.

What is an administrative investigation, and who conducts it?

An administrative investigation is a procedure aimed at establishing the truth about an act attributed to an employee and determining whether it is proven and the employee’s responsibility for it. It is an essential safeguard: no penalty may be imposed until the employee has been investigated in writing, heard and allowed to present a defence. Exceptionally, the investigation may be oral for minor offences warranting only a warning or a short deduction from pay, provided its substance is recorded in the decision.

• The administrative authority: usually conducts the investigation through its legal affairs department upon referral by the competent authority.
• The Administrative Prosecution Authority: an independent judicial body competent to investigate administrative and financial offences, with mandatory jurisdiction in certain cases, such as serious financial offences and offences attributed to holders of senior positions. Once it has taken up an investigation, the administrative authority may not dispose of the same matter.

How does the investigation proceed?

1. Referral: issued by the competent authority in a decision specifying the act attributed to the employee; the investigator may not investigate matters not referred to him.
2. Notification and summons: the employee is notified of the time and place of the investigation sufficiently in advance to prepare a defence; failure to appear without excuse does not prevent the proceedings from continuing.
3. Confrontation with the charge: the employee is informed clearly and specifically of the charge and the evidence against him or her.
4. Hearing statements and witnesses: the employee and witnesses for and against are heard, and the evidence is supplemented by documents, inspection and expert opinion where needed.
5. The record: the investigation is recorded in writing, stating its date and time, the investigator’s name and the questions and answers, and is signed by the investigator and the employee.

What safeguards does the employee enjoy?

• The right to be confronted: to know the full charge and evidence before being questioned.
• The right of defence and to counsel: to present a defence orally or in writing and to be assisted by a lawyer.
• Impartiality of the investigator: the investigator may not be an adversary, a witness or a person with an interest in the matter, nor combine the roles of investigator and the person imposing the penalty where this compromises impartiality.
• Access to the file: the right to inspect the investigation papers and documents relevant to the charge.
• A reasoned decision: the penalty decision must be adequately reasoned so that the employee and the courts can review its lawfulness.

What is precautionary suspension from work?

A precautionary measure, not a penalty. The competent authority may order it where the interests of the investigation so require, for no more than three months; it may be extended only by decision of the disciplinary court. Half of the employee’s pay is withheld during suspension, and the matter is referred to the disciplinary court within a short period to decide whether the withheld portion is to be paid; if it is not referred in time, the full pay is disbursed.

What happens after the investigation?

• Closure of the file: where the offence is not proven, the evidence is insufficient, or the matter is of minor importance.
• Imposition of a penalty: where the offence is proven and the appropriate penalty falls within the administrative authority’s competence.
• Referral to disciplinary trial: where the offence is serious and warrants a penalty beyond the administrative authority’s competence.

Which penalties may be imposed?

No disciplinary penalty may be imposed unless provided for by law (the principle of legality of penalties). The administration may not devise disguised penalties, such as a transfer or secondment intended as punishment; otherwise the decision is void for misuse of power.

Who may impose the penalty? Competence is graduated according to the severity of the penalty: direct superiors may impose warnings and deductions within narrow limits, holders of leadership positions may impose deductions within wider limits, the competent authority may impose any prescribed penalty other than those reserved to the courts, and the disciplinary court may impose all penalties. A penalty imposed by an incompetent authority is vitiated by lack of jurisdiction.

What limits apply to penalties?

• Proportionality and review of excessiveness: the penalty must be proportionate to the gravity of the offence; the Supreme Administrative Court has consistently annulled penalties tainted by excessiveness, i.e. a manifest disproportion between offence and penalty.
• No double punishment: an employee may not receive more than one principal penalty for the same offence.
• Personal nature of the penalty: an employee is punished only for his or her own proven conduct, not for the fault of others.

Does a penalty remain on the employee’s record forever?

No. Penalties are expunged after periods that vary with their severity, from one year for minor penalties up to four years for others; expungement does not apply to compulsory retirement or dismissal. Once expunged, the penalty is treated as if it had never been imposed for the future, without affecting rights that arose before expungement.

The disciplinary courts: composition and jurisdiction

The disciplinary courts form part of the Judicial Section of the State Council and are composed of its judges. They hear disciplinary actions brought by the Administrative Prosecution Authority and challenges against disciplinary decisions issued by administrative authorities, and are organised according to the employee’s grade.

Proceedings are instituted when the Administrative Prosecution Authority files the case papers and the charge sheet with the court registry; the employee is then served with notice of the case and the hearing date, may appear in person or through counsel, inspect the file and submit briefs and documents, and the court rules by a reasoned judgment.

When does a disciplinary action become time-barred?

A disciplinary action lapses three years after the date the offence was committed. The period is interrupted by any act of investigation, charge or trial, and starts to run afresh from the last such act. Where the act also constitutes a criminal offence, the disciplinary action does not lapse until the criminal action has lapsed.

What is the effect of a criminal judgment on disciplinary proceedings?

A criminal conviction binds the disciplinary authority as to the facts established. An acquittal, however, bars disciplinary proceedings only where it rests on the facts being untrue or not attributable to the employee, since an act may fall short of a crime yet still constitute a disciplinary offence.

What if the employee has left the service?

The end of service does not preclude disciplinary accountability for offences committed during it, within the limits and periods laid down by law; in that case the penalty is confined to financial penalties such as a fine.

How can I file a grievance or challenge the penalty?

• Administrative grievance: a request by the employee to the authority that issued the decision, or to its superior authority, to reconsider the penalty. It must be filed within sixty days of becoming aware of the decision, and the lapse of sixty days without a reply amounts to an implied rejection. A mandatory grievance is a condition for the admissibility of an annulment action in the cases specified by law, while an optional grievance interrupts the time limit.
• Challenge against the disciplinary decision: the disciplinary courts hear challenges against penalties imposed by administrative authorities; the challenge must be filed within sixty days of becoming aware of the decision or of the express or implied rejection of the grievance.
• Appeal before the Supreme Administrative Court: judgments of the disciplinary courts are final but may be appealed before the Supreme Administrative Court within sixty days of their issuance, by the parties concerned or by the President of the State Commissioners Authority.

Grounds for challenging a disciplinary decision or judgment: lack of jurisdiction (a decision issued by a body or person not empowered to impose the penalty); defects of form and procedure (omission of an essential step, such as the absence of a written investigation, of confrontation, or a breach of the right of defence); defect of cause (the act did not occur, is unproven or was wrongly characterised, including excessiveness of the penalty); and misuse of power (pursuing an aim other than the public interest, such as retaliation or favouritism).

Time limits for challenges are a matter of public policy, and missing them renders the challenge inadmissible. The applicant may request a temporary stay of execution of the decision where both seriousness (likely annulment) and urgency (irreparable consequences) are established.

What are my rights if I am referred for investigation?

• Do not sign any paper or record before you understand its content.
• Do not say a word except in the presence of your lawyer.

What should I do if I am in trouble and do not know how to act?

Do not wait for the penalty to be issued: time limits in disciplinary disputes are short and a matter of public policy, and missing a single day may cost you your right to challenge. Keep our number with you or with a family member: +20 120 855 5806, and call us immediately so we can step in as quickly as possible. If you have a problem and are not sure whether it is a disciplinary matter or falls under another legal characterisation, you may consult a lawyer specialising in administrative law.

Conclusion

Effective discipline does not depend on the severity of the penalty, but on fair procedures and a sound investigation. This calls for training legal affairs staff in proper investigation practice, strict observance of the rights of the defence, reasoned penalty decisions and proportionality between offence and penalty, so as to protect both the employee and the public service.

Related services

• Administrative Justice & the State Council

A question worth knowing the answer to

What is the deadline for a grievance or challenge against a civil servant’s penalty?

Answer: Sixty days. A grievance must be filed within sixty days of becoming aware of the penalty decision, and the lapse of sixty days without a reply amounts to an implied rejection. A challenge must then be filed before the disciplinary court within sixty days of becoming aware of the decision or of the rejection of the grievance, and a judgment of the disciplinary court may be appealed before the Supreme Administrative Court within sixty days of its issuance (State Council Law No. 47 of 1972). These time limits are a matter of public policy, and missing them renders the challenge inadmissible.

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This article is general information for legal awareness purposes and is not a substitute for legal advice on your specific situation.