An eight years old legal battle between the Public Service Commission and Busby Kautoke, a former Chief Secretary and the Secretary to Cabinet, and Head of Department for the Prime Minister’s Office concluded last week when the parties jointly announced they had agreed to end their “long running employment dispute.”

The dispute from 2011 centred over missing vouchers from the Prime Minister’s Office. Vouchers are documents that must be completed for all payments using public funds before the payments are made.

When the Prime Minister’s Office bank account was audited in 2011, the auditors reported that a “significant sum of money could not be accounted for, and that vouchers in respect of the payments making up that sum were unable to be located.”  But the actual amount was not revealed.

The Nullification Note issued by the parties on November 8, stated that it was an obligation of the Prime Minister’s Office to ensure that vouchers were retained at the office, and the CEO, Kautoke had an obligation to monitor the keeping of vouchers, and to do so had to make various enquiries including random inspection of files to ensure that proper record keeping was being undertaken and retained by the Prime Minister’s Office.

Vouchers however could not be found during the audits and as a consequence Kautoke was charged with breaching his obligations in respect of the keeping of the vouchers.

Kautoke had a five-years employment working contract with the Public Service Commission as the Chief Secretary and the Secretary to Cabinet, and Head of Department for the Prime Minister, starting on 14 April 2009 under the then Prime Minister, Sevele (PM 2006-11). Then Lord Tu‘ivakano became Tonga’s first democratically elected Prime Minister from January 2011 to 2014.

Public Service Commission

In August 2012, after a disciplinary process, the Public Service Commission decided that the charges had been proven and terminated Kautoke’s contract of employment.

Public Service Tribunal

Kautoke appealed against the decision of the Public Service Commission to the Public Service Tribunal, and after three days of hearing, the Public Service Tribunal in April 2017 allowed his appeal and set aside the Public Service Commission’s decision terminating his contract of employment.

In allowing Kautoke’s appeal, the Public Service Tribunal highlighted a number of factual findings, including:

• Other than one $14 payment, each of the 229 payments making up the sum in question was accounted for as legitimate Prime Minister’s Office expenditure.
• There was a voucher properly made out for each of those payments.
• The reason those vouchers could not be found during the audits was that they were removed from the Prime Minister’s Office by the Ministry of Finance and National Planning staff for the purpose of entering them in the Government’s computer system located at Treasury.
• The vouchers were removed without Kautoke’s knowledge or authority and the loss of them could not properly be attributed to him as a breach of his responsibility in respect of the keeping of vouchers.

Judicial Review

The Public Service Commission then applied for judicial review of the Public Service Tribunal’s decision.

In a decision by the Chief Justice of the Supreme Court, the Public Service Tribunal’s decision was set aside, and the matter was directed to be reconsidered by the Public Service Tribunal. This included a finding that the Public Service Tribunal had not considered certain evidence relevant to its factual findings.

This included evidence indicating that records moved to the Ministry of Finance and National Planning had been returned to the Prime Minister’s Office but that the vouchers had still not been found.

Appeal dismissed

Mr Kautoke then appealed the Supreme Court decision and that appeal was recently determined by the Court of Appeal.

The Court of Appeal dismissed Kautoke’s appeal on the basis that the Public Service Tribunal had made an error of law in its interpretation of the nature of Mr Kautoke’s responsibility in relation to the keeping of vouchers.

The Court of Appeal also found that the Public Service Tribunal had not committed an error of law in making its factual findings and that the Supreme Court had wrongly criticized the Public Service Tribunal for not referring to certain evidence relevant to its factual findings.

Return to Public Service tribunal

The Court of Appeal referred the matter back to the Public Service Tribunal to be reheard and re-determined based on what the Court of Appeal decided was the nature of Mr Kautoke’s responsibility regarding the keeping of vouchers.

However, now the Public Service Commission has agreed that, given the time that has elapsed, and the cost that have been incurred, since Mr Kautoke’s contract of employment was terminated and the time and expense that would be involved in re-hearing the appeal, it is appropriate for the appeal against the decision of the Public Service Commission to be discontinued by him on the basis that no costs will be payable by either party in relation to the appeal or the application for judicial review.

The Joint Press Release, was signed by the CEO of the Public Service Commission and Mr Busby Kautoke. The parties jointly agreed not to comment on the agreement.