Court orders Tribunal to reconvene and consider Cabinet Secretary’s appeal again

The long running legal campaign mounted by former Chief Secretary and Secretary to the Cabinet Busby Kautoke over his dismissal in 2012 has taken another turn.

Following a three sided legal dispute between the Public Service Tribunal, Mr Kautoke and the Public Service Commission, Lord Chief Justice Paulsen has ruled that a decision overturning his dismissal should be subject to judicial review.

The review was sought by the Public Service Commission acting as plaintiffs with the other two parties acting as defendants.

Mr Kautoke was suspended by the Commission on April 5, 2012, pending an investigation into allegations made against him under the Public Finance Administration (Public Fund) regulations relating to a failure to provide vouchers.

The charges related to alleged failure to provide the required documentation during a period from May 2009 to July 2010.

He was suspended without pay and on August 8, 2012, was sent a letter telling him he had been terminated, dating from April 6, 2012.

Mr Kautoke appealed his decision to the Public service Tribunal  in 2013 and on March 21 of that year the Tribunal declared that the decision to terminate him was invalid.

The Tribunal argued that his termination was invalid largely on the basis that Cabinet had not approved the termination.

The decision to remove Mr Kautoke was noted by Cabinet, but consideration of the report was deferred and ultimately the report of the decision was withdrawn.

In a closely argued 32 page statement released on Friday, Lord Chief Justice Paulsen noted that the rules surrounding the employment of public servants like Mr Kautoke had changed during the course of his employment.

The judge’s report noted that a number of arguments and claims had been made about how these changes had been interpreted, whether sections of the Public Service Act were pertinent in respect of the case and whether the fact that the dismissal was not approved by Cabinet was relevant.

In his decision, Lord Chief Justice Paulsen ordered that the Tribunal’s decision to allow Mr Kautoke’s appeal against the decision to terminate his job should be set aside.

He ordered the Tribunal to meet again to re-hear Mr Kautoke’s appeal at the earliest opportunity.

“I consider  that  referring  this  matter  back  to  the  Tribunal  is  likely  to  be the  most  time  and  cost  effective  method  by  which  Mr  Kautoke  can have   his  case   finally   determined   on   its  merits,  which   is  what   he desires,” the judge said.

“This case  has  been  beset  by  procedural  manoeuvring  which has  caused  the  delay  of  which   Mr  Kautoke  now  complains  and  no doubt  has added  considerably  to  the  costs  of  both  parties.

“The court can  only  hope  that  Mr  Kautoke’s  grievance  shall  now  be  aired  in the specialist  forum which was  established  for that  purpose.”

The main points

  • The long running legal campaign mounted by former Chief Secretary and Secretary to the Cabinet Busby Kautoke over his dismissal in 2012 has taken another turn.
  • Following a three sided legal dispute between the Public Service Tribunal, Mr Kautoke and the Public Service Commission, Lord Chief Justice Paulsen ruled that the best way to resolve the issue was to send it back to the Tribunal.
  • Mr Kautoke was first suspended without pay and then sacked over allegations made against him under the Public Finance Administration (Public Fund) regulations.
  • He appealed his decision to the Public service Tribunal in 2013 and on March 21 of that year the Tribunal declared that the decision to terminate him was invalid.

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