THE COURT REPORT
National Judicial Staff Services Sack Whistleblower
Corruption investigations most often focus on high-profile leaders and their involvement in multi-million kina scams. The enormous sums of money involved and the life-styles of our elites can make their crimes hard to relate to, especially for ordinary people working hard to just feed their families and keep their kids in school.
Corruption though can be found at every level in our society. Even when it involves modest sums of money its impacts can still be devastating.
In today’s PNGi exposé we focus on one such case, a case that nonetheless strikes right at the heart of the administration of our judicial system.
Suman Sawong, Billy Tarosa, Simon Kar, Auto Masoka and Jasis Unua are five ordinary folk.
They were employed as security officers at the Goroka court house. None had much education or work experience other than as security guards. Each was employed for many years by the National Judicial Staff Service.
Around 2012, the five officers all retired, either due to health, age, or restructuring of positions. Each was due final payment of their retirement entitlements and outstanding overtime pay.
Allan Tukar was the paymaster at the National Judicial Staff Services (NJSS). It was Tukar’s job it was to pay the retiring security guards.
Those payments though were not forthcoming. The five men experienced many frustrations when trying to secure their entitlements. Although they were no longer working at the court house their former boss, Tom Korua, the Security Supervisor, did his best to help ‘his boys’.
Here is the story of one of those ‘boys’, Jasis Unua:
I made several attempts by travelling to Port Moresby NJSS head office to follow up…..I was told [by] Mr Allen Tukar to follow up with him. Many times I went to his office when I in Port Moresby but he was not always in his office. After attempting follow-up for so many times I was forced to travel out of Port Moresby …. Again in September 2012 I travel to Port Moresby but there was no good attendance by Allan Tukar. From the way he was approaching me I understood and that he was expecting some money from me as usual before he could calculate and pay my entitlements. I gave him K500 cash all in 100 kina notes in front of the Waigani Court house under the rain tree. The transaction took place in the presence of Security Supervisor Mr. Tom Korua. When I handed the K500 cash he took it and put it in his short pocket…My retrenchment entitlement is still yet to be paid to me….
The other four security officers all had similar stories. Over a period of two years, each man claims they paid various sums of K150, K200 and even K750 into the personal bank accounts of Allan Tukar and his colleague, Naomi Thomas. Sometimes the officers were assisted in making the payments by their former boss, Tom Korua.
None of the five though ever received their payouts.
By August 2014 the retired security guards had had enough. Together with Tom Korua the six laid a formal complaintwith the NJSS alleging that Allan Tukar, assisted by his colleague Naomi Thomas, was not paying their entitlements and the pair were taking bribes.
The complaints were lodged with the Principal Legal Officer at the NJSS, Poli Ifina.
Ifina is a former policeman with over 30 years experience. He started with the police back in 1983. In 2000 Ifina completed a law degree and then in 2014 transferred to the NJSS. One would expect swift action from Ifina.
He did act swiftly. But not against Allan Tukar or Naomi Thomas, instead Ifina went after the whistleblower.
Yes, that is right, instead of taking any action against Allan Tukar and Naomi Thomas, Ifina instigated disciplinary proceedings against Tom Korua. Korua, he alleged, had solicited money from the former officers to fast track payment of their entitlements.
Despite clear evidence that Korua’s only motivation was to help the men get their entitlements, and that he had not personally benefited in any way or taken any money for his own use, Korua was recommended for dismissal. His appeal to the National Judicial Staff Services Appeal Tribunal was dismissed.
Understandably aggrieved, Korua took legal action against the National Judicial Staff Service, seeking review of his sacking.
The judicial review case was heard in Goroka in July and August 2016, before Justice Neill.
NJSS lawyer, Poli Ifina, appeared in person to defend his actions and those of the National Judicial Staff Services.
The court found in favour of Tom Korua.
In his judgement Justice Neill states Korua had not personally taken any money, and did not receive any personal financial benefit. Korua, in the court’s view, was simply trying to help his former subordinates, none of whom were well educated, to obtain their entitlements.
The former security guards all gave evidence that the payroll officer had accepted their bribes, which were paid in the hope Allan Tukar would do his job and process their lawful entitlements.
The court stated that Korua had been denied natural justice. He was never given the chance to cross-examine and test the evidence of the payroll officer who was ‘the root cause of the charge’ against him.
Further, the court said, the penalty of dismissal was excessively severe when Korua did not receive any benefit from offering the bribe, and simply did so to assist his former subordinates.
The court also found that as a whistleblower who was reporting a person for accepting bribes, Korua should have been informed of his right not to self-incriminate when laying a complaint.
Justice Neill also said it was unreasonable for Korua, the whistleblower, to have been sacked when no action was taken against the persons receiving the bribes.
The court quashed the NJSS’ decision to dismiss Korua. Justice Neill ordered that Korua be reinstated in his position and paid all his outstanding salary and entitlements backdated to 2015.
That, however, was not the end of the matter.
Poli Ifini and the NJSS were unsatisfied with the national court’s decision. They appealed to the Supreme Court. Ifini, and the NJSS, claimed that Justice Neill had erred in law and on the facts. The Supreme Court disagreed.
On 29th April 2020, a three-judge bench threw out the appeal, finding the:
Trial judge did not fall into any error and neither did the appellants demonstrate any appealable error on the part of the trial judge, as such the appeal is dismissed
The Supreme Court Justices were scathing in their assessment of the NJSS case and the quality of the lawyering. The judges found there were ‘pertinent shortcomings’ in the grounds for appeal and the case was ‘futile’. The NJSS had ‘plainly missed the plot” and its ‘lacklustre attitude’ was apparent in ‘the lack of proper representation’ [by Poli Ifini] at the original court hearings.
Ultimately, said the court, the appeal was ‘a total farce’.
The Supreme Court argued many of the grounds for the appeal were ‘incompetent’, ‘incontestably scanty’, ‘lacked merit’ and amounted to nothing more than ‘superficial knit pickings’.
The in-house lawyers clearly failed to see the significance of protecting the interests of the Court Administration. The end result is the costly exercise in this appeal that is mounted on superficial knit- pickings of issues that lapse into insignificance as we will demonstrate.
The court went on to show how, at every stage of the process that culminated in Korua’s sacking, the NJSS failed to demonstrate good management or common sense and made numerous errors of law and breached procedural rules. These meant the whole process was tainted with a lack of fairness and the aggrieved officer was denied natural justice.
Ultimately, said the Supreme Court:
The clear evidence on the face of the records which the Secretary and the Tribunal overlooked or ignored was, that Allan Tukar took the bribes in order to facilitate the final entitlements for the five retired security men. Allan Tukar was the principal instigator. He was the mind behind the scam and still employed at the time Mr Korua’s employment was terminated.
PNGi is now calling on the Secretary of the NJSS, Jack Kariko, and the Judicial Council, which is headed by the Chief Justice, and expected to administer the NJSS, to explain their decisions:
- Why was disciplinary action taken against the whistleblower, Tom Korua?
- Why was no disciplinary action taken against Allan Tukar and Naomi Thomas?
- Why were the complaints against Allan Tukar and Naomi Thoma not referred to the police for criminal investigation?
- Why did the NJSS pursue an expensive and futile Supreme Court appeal?