Case Study: Pre-retirement leave – applicable only before actual date of retirement

Case Study: Pre-retirement leave – applicable only before actual date of retirement

Published August 28, 2024

The complaint

The complainant had been detailed by the Ministry for Education to work at the Malta College of Arts, Science and Technology (MCAST). Upon reaching retirement age, he sought pre-retirement leave from MCAST, but this was turned down. He alleged that his request had been rejected for no valid reason.

The investigation and findings

After examining all the evidence, the Commissioner for Education noted that after his initial detailing with MCAST the complainant had become subject to two sets of regulations, not in themselves contradictory, but with independent time-frames and conditions depending upon the matter in issue.

The complainant’s contract of service with the College dating back to 2002, as subsequently renewed and finally extended beyond his 64th birthday up to August of 2023, with its various amendments and appendices, regulated primarily his responsibilities and remuneration as a member of the lecturing staff of the College. However, for purposes of pension and pre-retirement leave, the rules applicable to the civil service continued to apply to the complainant. In fact, the relative MCAST collective Agreement did not even contemplate pre-retirement leave.

As the term itself – pre-retirement – clearly indicated, this leave is intended to be availed of before someone actually retires. It cannot be converted into post-retirement leave. Since the complainant was due to retire very early in 2023, he could have applied for such leave before his retirement date and before requesting an extension of his detailing to MCAST. In that case, after August 2022 he would have reverted to his substantive grade in the civil service and benefitted from three months fully paid leave in the run-up to his 64th birthday early in January 2023. Since, as the Commissioner was informed, the complainant had hardly ever made use of his sick leave entitlement, he would in all probability have been granted the full pre-retirement leave. However, the complainant opted to continue to provide a service to the College. By extending his services to MCAST, he forfeited his right to the pre-retirement leave under the rules governing the civil service. The Commissioner also expressed his view that in light of the complainant’s impeccable track record as a lecturer at MCAST, had he requested further extensions as a lecturer there, his request would have been acceded to.

Conclusion

In sum, the Commissioner for Education concluded that there was no evidence of any maladministration in the sense of Article 22(1)(2) of the Ombudsman Act. There may have been some misunderstanding – on the part of the complainant, or on the part of the MCAST administration, or on both – as to the modalities and conditions with which pre-retirement leave was to be availed of in the civil service, but in any case, this did not amount to maladministration.

The complaint, therefore, could not be entertained.