By Linny Folau
A former Deputy CEO of Tourism, Mary Magdalena Tafa Fifita was successful in her civil action, when a Supreme Court judge quashed the Public Service Commission's decision to dismiss and charge her with 27 charges of serious breach of discipline, after the judge found that the charging process relied on a flawed investigation.
Justice Cooper in a ruling on 6 January ordered that the charges against Ms.Fifita for serious breach of discipline made on 27 October 2023 be quashed.
Brought by Ms. Fifita against PSC, the civil case was heard in a trial on 13 November, 2024. The court heard that Ms. Fifita was dismissed from her role as Director in the Ministry of Tourism on 9 January 2024. Up until then, she had been employed in the Public Service for 24 years, and that career culminated in her working for Ministry Tourism and taking on the role of their Director in September 2019.
When she joined that Ministry, the Chief Executive Officer was Mr. Sione Moala Mafi. His term came to an end in early 2023 and he was replaced as CEO by Mr. Viliami Takau around April of that year.
She was dismissed in regards to a perceived conflict of interest, when a company called MATAPA Services, registered under Ms. Fifita’s daughter, was contracted with by the Ministry Tourism and paid for a number of contracts to provide courses and training to the Ministry in 2022-23.
Complaint
The complaint came to light on 5 April 2023. Mr. Siosaia Pahulu, a Training Coordinator for the Ministry of Tourism emailed Koenig Tu’uhetoka in the Public Service Commission regarding MATAPA Services, stating that this company was registered to Ms. Fifita’s daughter, Mahina Fifita, and her husband, who also had a business interest in it.
Mr. Pahulu believed that a formal investigation exercise was necessary and sent a letter with accompanying documents to the Chairman of the Public Service Commission, on 11 April. In part the letter read: “To my dismay, I discovered that approximately an amount of $50,000 was paid to the Matapa Services which is a family business company registered under the name of Mahina Fifita, daughter of Mary Magdalena Fifita, the Deputy CEO of the Ministry of Tourism. This amount of money was paid to this Company in a period of less than a year.”
He sent further correpondence to the Commissioner of PSC, which prompted a procedure to action on the complaint. In between the CEO of PSC, Mrs. Victoria Kioa and eight other colleagues, all from the PSC and reached next steps of actions, including that it handed to a Charge Formulation Committee for their necessary action.
The CEO of Tourism. Mr. Viliami Takau was then requested for records of attendance and materials issued at the trainings carried out by MATAPA Services; all Purchase Orders and invoices on payments made it, among others.
The court heard that Ms Fifita was cooperative and forthcoming with the information and the reason why the work was carried out. She claimed that she expressed her conflict of interest with the CEO at the time and had received his approval, given the fact that the former CEO signed the initial contract (out of the four contracts) and also the final contract in Feb 2023.
Justice Cooper stated that CEO Takau, CEO Kioa and her Deputy were all in possession of the fact that Ms. Fifita told the then CEO of the conflict and he had nonetheless approved two of the contracts. She also told CEO Takau that when CEO Mafi had been on leave, she was acting CEO and had approved two more contracts given his earlier approval.
“The conclusion was a recommendation that she be…given a final warning, and/or transferred. That contemporaneous note made by CEO Takau, dated 22 June 2023 was a reference to his decision that Ms. Fifita’s role in the Ministry would...cease with effect today, 22 June 2023, he stated.
Charges
The judge stated that in a meeting of the Charge Formulation Committee on 19 October 2023 with Mr. Tu’uhetoka, the Solicitor General, Auditor General and the Secretariat, Mr. Tuhanuku, they were...ready and, in a position, to assess the evidence and determine whether all the evidence [was] sufficient to lay charges against Ms. Fifita.
“They concluded that Ms. Fifita was to be charged with 27 offences; being alleged breaches of the Public Service Code of Ethics and Conduct 2010,” he stated.
The first four charges were that she had allegedly artificially divided a contract of $45,800 into four so as to bring it under the watershed figure of $20,000 so as to affect the procurement method to be properly adopted. Out of the remaining 23 charges, 21 can be grouped together as relating to the allegations that she wrongly influenced public funds to be spent by contracting the Ministry to be provided services by a company she had familial ties with.
The remaining two charges (charge 11 and 27) alleged that she failed to assign an appropriate senior officer to check the services had been delivered. All those charges were delivered to Ms. Fifita on 27 October, by Secretariat Tuhanuku.
On 10 November 2023 Ms. Fifita sent her written response to the charges.
The PSC met on 29 November 2023 and CEO Kioa told them of her conclusion that Ms. Fifita ought to be dismissed and the matter reported to the police. It was agreed the PSC would communicate that to Ms. Fifita. That was done in correspondence of 29 November 2023.
At the same time, appeals by Ms. Fifita wwere rejected and the final decision, upheld the original finding made on 9 January 2024, This was sent to her and the matter reported to the Police Commissioner, both on 10 January 2024.
On charges 1 to 4, the judge stated that the first four charges were allegations that Ms. Fifita manipulated the contract, sub-diving it into four, allegedly to avoid the required protocol procedure.
"She was not asked about this at all by CEO Takau as part of his inquiry, as revealed in his Report. In her written reply to the charges, she noted that that was done on the authority of the then CEO, Mr. Mafi. But he was not asked for his account at any time. A witness who had potential evidence of having authorised the conduct, the subject of the investigation, was not spoken to."
“In regards to charges 11 and 27, these were allegations that Ms. Fifita had failed to assign an appropriate independent senior officer to check the services were correctly and completely given. There was nothing in the notes at the Annex 2 of the CEO Report that showed she was asked about this at all during his inquiry.
“CEO Takau had also included in his Report, a section of Audit Inspection: Ministry of Tourism period covered: January 2019-June 2023. A careful reading of that audit report revealed that it also was an inquiry into “Conflict of interests”. Yet it revealed no sign, that Ms. Fifita was asked for her account by the Auditor General's team and allowed to defend herself.
“The recommendation in that audit report that Ms. Fifita …be severely disciplined for corruption…was heavily relied upon by Mrs. Kioa in reaching her decision to find two those charges proved,” he stated.
"I next turn to the effect of the error. The rationale for the decision not to talk to former CEO Mafi was relied upon by Mrs. Kioa in her reasons for finding the charges against Ms. Fifita proved."
Charges 5 to 10, 12 to 26 were the alleged conflict of interest charges.
"I can find no evidence to suggest that at any stage, whether the CEO inquiry, his Report or the PSC's proceedings, the test, as set out in the relevant part of the Code, was applied to any step of any decision making process. It is an agreed fact that Mr. Moala Mafi was never approached or spoken to. In fact, a decision was taken that it was unnecessary. Yet, he could confirm Ms. Fifita had disclosed the conflict of interests. It follows, that the inquiry, did not ask itself the right questions."
Investigation error
The judge then found the error in the investigative process, not setting the proper scope of the inquiry and not inquiring of a relevant witness, affected the whole process and the ultimate decision to dismiss Ms. Fifita.
The judge stated had CEO Takau applied the correct test of whether reasonable steps had been taken to avoid the conflict and sought the relevant material as part of his inquiry and report.
"In not taking account of Mr. Mafi's potential evidence it deprived the CEO‟s inquiry of material that impacted on every charge that was laid. It materially affected the reliability of the process that led to the finding those charges proved and, in turn, that Ms Fifita should be dismissed."
Accordingly, he did not go on to consider the rest of the action brought under the other three heads of claim, as there was no need.
Justice Cooper also pointed that on reversing the burden, it must always be for the asserting party, in this case the PSC, to prove their charges, not for the person accused to disprove them. In their reasons, the PSC did not state to what standard of proof they found the charges proved, he stated.
He found on the evidence before him, he was sure that the plaintiff had proved her case against the defendant on the second claim. He did not go on to consider the case in respect of the first or final two claims and made no findings on them.
It was then ordered that the decision to charge Ms. Fifita with 27 charges of serious breach of discipline quashed, to dismiss her from the Ministry of Tourism and report her to Tonga Police quashed. While, costs was subject of further hearing on a date to be agreed upon.
