Dec 2000 Volume 81 Number 12 "serving the protectors"
By Mark Carroll PASA Assistant Secretary

Minimum Tenure

The Police Association continues to receive complaints from its members over SAPOL’s handling of the minimum tenure policy.

Members will appreciate that regulation 34 of the Police Regulations states inter alia the Commissioner of Police may: “...stipulate that an appointment to a (promotional) position is to be for a specified period or specified minimum period.”

The period may be varied at the discretion of the Commissioner.

SAPOL’s minimum tenure policy was published in the Police Gazette Supplement on August 11, 1999. (Members should take the time to familiarize themselves with this policy.)

The association recently referred a members's minimum tenure process grievance to legal firm Duncan Basheer Hannon. The member had been selected on merit for a senior constable vacancy. After the Selection Advisory Committee advised him that he had won that position, he was informed by the manager of Personnel that he would not be further considered as he was subject to minimum tenure.

The member lodged a grievance per section 55 of the Police Act.

Legal opinion was that the decision not to appoint the member could be challenged on judicial review for two reasons:

The decision as to whether to exercise discretion to waive the tenure requirement cannot be made except by the Commissioner pursuant to regulation 34(4). That regulation provides that a person appointed to a position is not eligible for appointment to another position of the same rank until the minimum tenure period has expired except at the discretion of the Commissioner. Unless that discretion was exercised by the Commissioner, or unless the ability to carry out that function had been delegated in writing by the Commissioner to the manger of Personnel in accordance with section 19 of the Police Act 1998, the discretion had been invalidly exercised.

Even if the manager of Personnel had the function of exercising the discretion properly delegated to the position, the exercise of the discretion had been invalidly fettered. No discretion had been exercised. A decision had been made to refuse the transfer because of the policy as to a minimum period of appointment. There had been an abdication of the exercise of discretion. Further, the decision-making process had no regard to the obligations placed upon the Commissioner to ensure that employees are not subject to arbitrary or capricious administrative decisions (refer section 10 of the Police Act 1998).

SAPOL policy in relation to exceptions to minimum tenure relies on a recommendation of the manager of Personnel to the Commissioner to reduce tenure on compassionate or welfare grounds, organizational requirements or promotion to a higher rank. The Commissioner’s discretion had not been delegated to the manager of Personnel. There is to date only one known case where the Commissioner has exercised his discretion to reduce minimum tenure per regulation 34. This related to a senior management position.

Members who were refused selection on the recent detective training courses or Dog Patrol Section due to minimum tenure would be rightfully concerned. It would appear that the decision taken by the manager of Personnel had no legal basis and subsequently those members have been disadvantaged.

The association will follow up these specific grievances. Members denied the opportunity to apply for vacancies due to minimum tenure should contact the association

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