A long legal action brought by Busby Kautoke against the termination of his employment as Chief Secretary and Secretary to Cabinet, has again been referred back to a Public Service Tribunal for re-determination.  

This was after, the Court of Appeal on April 17 dimissed his appeal against Lord Chief Justice O.G. Paulsen's judgment last year, which set aside a 2017 decision by the Tribunal.

A prominent civil servant, Kautoke's contract of employment from the top civil service job was terminated on August 8, 2012 by the Public Service Commission (PSC) for allegedly not maintaining proper payment records.

The Appeal Court in its judgment said, if the Tribunal finds it to be the case that Kautoke really was unaware of a breakdown in the records system as a result of which the missing vouchers were either never created or were lost, that alone will not provide him with a defence under r.10 (1) of the Public Service Administration (Public Funds) Regulations.

“If Kautoke's unawareness was because he failed in his supervising or monitoring duties as we have described them, for example if he had not carried out the requisite random checks on how the system was working in practice and on how the Deputy Secretary was fulfilling his role in it.

“Part of the supervising responsibilities was to see to it that the Prime Minister's Office knew where its records were being kept at all times,” stated the Court.

In addition, the appellant's counsel had conceded that there was no record kept neither of the documents removed from the Prime Minister's Office nor of those returned later by the Ministry of Finance. 

“And, of course the vouchers relating to the 229 cheques have still not been found.”

The Appeal Court upheld the Chief Justice's orders at the Supreme Court and referred the matter back to the Tribunal for another round of re-determination.

"It must now be re-determined with this judgment."

No order was made on costs.

Ongoing battle

As background, PSC's core allegation was that Kautoke 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.

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 succeeded 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.

PSC again applied for judicial review of the Tribunal's decision.

On October 5, 2018 the Chief Justice found the Tribunal erred and referred the matter back for re-determination, which resulted in this appeal by Kautoke to the Court of Appeal.