Supreme Court sends Kautoke case back to Tribunal for second time in six-year dispute

'Oku taupotu 'i lalo ha fakamtala faka-Tonga

The Supreme Court has ordered the Public Service Tribunal  to re-hear an appeal relating to the dismissal of former CEO of the Prime Minister’s Office, Busby Kautoke.

Lord Chief Justice Paulsen said he had very reluctantly decided to send the case, which has been the subject of protracted legal argument for six years, back to the Tribunal.

“This case has gone on far  too long  and this is now the second time that this Court has felt it necessary to set aside a decision  of  the Tribunal in relation to the same matter,” the judge said in a report released last Friday.

He made the order following an appeal by the Public Service Commission for a judicial review of a decision of the Public Service Tribunal April 18,  2017  allowing  Mr Kautoke’s appeal from the decision of the PSC terminating his employment as Chief Secretary and Secretary to Cabinet.

In that decision the Public Service Tribunal overturned Mr Kautoke’s dismissal August 2012.

As Kaniva news reported at the time, the Tribunal said the charges laid against Mr Kautoke were invalid and could not be used to terminate his contract under any provision of the Public Service Act 2002; any Public Service Regulations or  the Public Finance Management.

Last week’s judgement in the Supreme Court was the second action for judicial review between the same  parties.  The  first  action followed  an earlier decision by the Tribunal  of  March 21,  2013 allowing Mr. Kautoke’s appeal from the Public Service Commission’s decision to terminate his employment.

The PSC argued last week that the Tribunal had erred in five areas in its 2017 decision. The court ruled that the Tribunal had erred in five key areas.

Lord Chief Justice Paulsen found that one of these errors, namely that the tribunal had ignored evidence  and advice regarding the original charges against Mr Kautoke, was sufficient for him to send the matter back to the Tribunal.

“Mr. Kautoke’s appeal is referred back to  the  Tribunal  and  it  shall,  after  hearing from  the parties, re-determine  the appeal in accordance with  this  judgment,” he said.

The Public Service Commission saked Mr. Kautoke’s in 2012 on the grounds that he had failed to ensure that the Prime Minister’s Office (PMO) kept vouchers for payments made from public funds in order to allow for proper accounting records and for audit purposes.

From December 2008, the PMO was delegated responsibility for dealing with parts of the Constitutional and Electoral Reform Programme (CER) fund, donated by the Australian and New Zealand Governments. This was in addition to what was referred to as the PM’s office advanced account.

During the period of Mr. Kautoke’s  employment  various  audits  of  the PMO’s  accounts  were undertaken. The first audit report produced by the Auditor General in June 2011 concluded that  the PMO’s record keeping had been very poor  and  did  not  meet  accepted  legal standards.

Large sums of money were said to be unaccounted for, with no proper record of how money had been spent or whether it had been spent within guidelines. Subsequently a number of other audits were held, including one organised by the New Zealand High Commission. During these audits more vouchers and records were unearthed, but substantial sums of money were still unaccounted for. A subsequent investigation by the Public Service Commission auditor in March 2012 concluded that correct supporting documentation had still not been provided for 229 payments, the total value of which came to $796,432.10.

A final audit report was subsequently obtained from the Audit Office in May 2012. The Audit Office found that supporting documentation for 229 payments with a total value to $937,730.21 had still not been provided. The report also advised that the vast bulk of the payments had seemingly been categorised as being for salary, other benefits and travel, which breached a directive regarding the use of the PMO’s account.

The PSC decided to terminate Mr. Kautoke’s employment on August 8, 2012.

Lord Chief Justice Paulsen said in last week’s judgement that there was no suggestion that Mr. Kautoke misappropriated or misdirected funds. He said the Public Service Commission argued that that there had been significant omissions in the keeping of proper records and the subsequent “fall-out” from them occurred under Mr. Kautoke’s watch and that he must bear the ultimate responsibility.

The judge said the “fall out” referred to by the PSC  was that the Tongan Government had been  embarrassed by having to repay $212,196.40 to the New Zealand and Australian Governments from money  donated  to Tonga’s Constitutional and Electoral Reform Programme project.

The main points

  • The Supreme Court has ordered the Public Service Tribunal to re-hear an appeal relating to the dismissal of former CEO of the Prime Minister’s Office, Busby Kautoke.
  • Lord Chief Justice Paulsen said he had very reluctantly decided to send the case, which has been the subject of protracted legal argument for six years, back to the Tribunal.
  • “This case has gone on far too long  and this is now the second time that this Court has felt it necessary to set aside a decision  of  the Tribunal in relation to the same matter,” the judge said.

For more information 

Tribunal overturns Cabinet Secretary’s dismissal; orders PSC to pay court costs

1 COMMENT

  1. Kuo tu’utu’uni ‘a e Fakamaau’anga Lahi’ ke toe vakai’i ‘e he Tulaipiunilo ‘a e Kautaha ‘a e Kau Ngāue Fakapule’anga’ (KKNGF) e tangi fekau’aki mo hono kapusi ‘o e CEO ki mu’a ‘a e ‘ōfisi ‘o e Palēmia’, Busby Kautoke.

    Na’e me’a ‘a Paulsen ko e ‘Eiki Fakamaau Lahi’ ‘o pehē kuo’ ne toupīkoi ke toe fakafoki ‘a e keisi’ ni ‘a ia kuo fuoloa mai hono kikihi’i’ ‘i ha ta’u nai ‘eni ‘e ono.

    Kuo’ne tu’utu’uni ai hili eni ha tangi ‘a e KKNGF ke toe vakai’i ‘a e tu’utu’uni ‘a e tulaipiuniolo ‘a e KKNGF ‘i he ‘aho 18 ‘o ‘Aokosi 2017 ‘o tali e tangi ‘a Kautoke mei he tu’utu’uni ‘a e KKNGF ke fakangata ‘ene ngāue
    ko e Sekelitali Pule mo e Sekelitali ki he Kapineti’.

    ‘I he tu’utu’uni ko ia’ ne fakata’e’aonga’i ai ‘e he tulaipiunilo ia ‘a hono kapusi ‘o Kautoke ‘i he 2012.

    Hangē ko ia ne lipooti ‘e he Kaniva’ he taimi ko ia’, na’e pehē ‘e he tulaipiunolo’ ko e ngaahi faka’ilo ‘o Kautoke’ na’e ta’e’aonga pea ‘e ‘ikai lava ke fakata’e’aonga’i ai ‘ene konituleki’ ‘o fakatatau ki ha fa’ahinga lao pe tu’utu’uni ‘ o e ngāue fakapule’anga’ pe tu’utu’uni ki hono tokanga’i e pa’anga ‘a e kakai’.

    Kuo tu’o ua’aki ‘eni e tu’utu’uni ‘a e Fakamaau’anga Lahi’ ‘i he keisi’ ni.

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