A Public Service Tribunal has been ordered by the Supreme Court to re-determine, for the second time, an appeal by Busby Kautoke against the termination of his employment as Chief Secretary and Secretary to Cabinet, in a legal dispute that has been ongoing for six-years.

A prominent civil servant, Kautoke was suspended from the top civil service job indefinitely on April 5, 2012 by the Public Service Commission (PSC) for allegedly not maintaining proper payment records.

The PSC's core allegatiion was that he failed to ensure that the Prime Minister's Office kept vouchers for payments made from public funds in order to allow for proper accounting records and for audit purposes.

On August 16, 2012 Kautoke said in a statement that the PSC brought charges against him, relating to the keeping of vouchers for the purposes of a pilot scheme by the Ministry of Finance to effect partial devolution of financial management to the Prime Minister's Office…". He said that records in paper forms were kept at the Prime Minister's Office, but a computerized version under a system known as "Sun System" was maintained by the Ministry of Finance.

Kautoke, who challenged the termination of his contract as unlawful, filed an appeal against PSC's decision with the Tribunal. His appeal was first allowed in 2013.

The PSC then filed an action for judicial review against the Tribunal's decision, and suceeded in having the matter reverted back to the Tribunal for re-determination. The Tribunal again ruled in favour of Kautoke's appeal on April 18, 2017.

Then a second action for juduicial review was filed between the same parties.

Errors

Lord Chief Justice O.G. Paulsen, on October 5 in his ruling set aside the Tribunal's decision made on April 18, 2017.

"This case has gone on far too long and this is now the second time this court has felt it necessary to set aside a decision of the Tribunal, regarding the same matter," he stated.

PSC had argued that in its ruling on April 18, 2017 the Tribunal  fell  into  error in  five respects. This included incorrectly holding that r. 10(1) of the Public Finance Administration (Public Funds) Regulations (the regulations), which was the provision that Kautoke was said to have breached, did not impose any duty upon the Prime Minister's Office to retain vouchers.

The court heard PSC had clearly advanced to the Tribunal, the argument that the vouchers were not kept, in the sense that they never existed, was a clear breach of r. 10. The Tribunal erred in mischaracterizing the nature of the two charges, which included failure to provide proper vouchers, among other matters.

In addition, the Tribunal failed to consider key evidence in regards to the charges and erred when it made order for costs, where Kautoke had not sought costs, and the Tribunal had not given the PSC an opportunity to be heard.

"The Tribunal had no power to award of costs and the award made in Kautoke's favour was unlawful and must be set aside."

The Lord Chief Justice said the Tribunal fell into error in relation to the PSC's first, fourth and fifth grounds of review and correcting the errors required a re-assessment of the facts, so it was necessary to refer the matter back to the Tribunal for re-determination.

He then ordered to set aside the Tribunal's ruling on April 18, 2017.

In addition, counsel have agreed that regardless of the result of this action, Kautoke should have costs against the Tribunal of $939.99 for expenses wasted as a result of the loss of an earlier hearing, because the transcript was not provided in a timely manner.  

However, submissions within 21-days were sought from counsel in relation to costs between PSC and Kautoke, and any claim either may wish to make for costs against the Tribunal.