Tourism Minister acted unlawfully in dismissing four directors, Supreme Court rules

    The Tourism Minister has been told he was wrong to dismiss four members of the Board of   the Tonga Tourism Authority on the grounds that their contracts had expired.

    Lord Chief Justice Paulsen told the Supreme Court that four people, Tomifa Paea, Simana Kami, Finau Uata and Kisione Pakalani were appointed by Cabinet as directors  of the board under the Tonga Tourism Authority Act  2012.

    Their appointments were confirmed for a period of up to three years by the then minister. Hon. ‘Etuate   Lavulavu.

    On June 17 2016 the new Tourism Minister, Hon. Semisi Sika, wrote to them, saying they had only been appointed for  the  balance  of the term of a resigning director who they had replaced and that their appointments had expired.

    Paea, Kami, UIata and Pakalani  argued they had been unlawfully terminated and asked the Supreme Court to declare the Minister’s decision was wrong and an order setting it aside. Alternatively, they sought  damages.

    Hon. Sika argued that regardless of whether the directors were told they had there year appointments, they had replaced resigning directors and their appointments could only be for the remainder of that director’s term.

    Lord Chief Justice Paulsen said the four directors had been appointed by Cabinet on October 2, 2015, following the recommendation of Hon. Lavulavu. Neither Cabinet nor the Minister said they were replacing resigning directors.

    On January  26 this year, Hon.  Lavulavu  wrote  to  the  plaintiffs and confirmed their appointments  to the  Board.  His  letter referred to their appointments as being for a period of up to three years.

    Hon. Sika became the Tourism Minister on April 18. It appeared that in early June he met with the four directors and told them their appointments were only for the term of resigning directors. On June 17 he wrote to them saying that their terms ended “effective today.”

    The directors kept performing their duties, but on July 21 received a letter from the Acting Chief  Executive Officer of Tourism telling them to leave the authority premises.

    “I consider  that  the  Minister  did  not  follow  the  law  because  he  was wrong   that   the   plaintiffs   were   appointed   to  fill   positions  that   had become vacant  through  the  resignation  of directors,” Lord Chief Justice Paulsen said.

    He said the Board had not until that time appointed the number of directors required by the Act and that there were always two vacancies.

    Any director  appointed  to  fill  those  vacancies  would  be entitled  to  serve  a term  of three  years  under section. It was now impossible to determine which of the plaintiffs had been appointed to fill those vacancies.

    “It  must  therefore  be  the  case  that  at  least  two  of  the  plaintiffs  were appointed  to  fill  positions  on  the  Board  that  had  always  been  vacant and  that  they  were  entitled  to  serve  for  three  years,” the judge said.

    “The  Minister was  not entitled  to  regard their  appointments  as  having expired  by  17 June   2016,   just   seven   months   after   their appointment.

    “The  Minister  has  made  fundamental  mistakes.   He was  mistaken  in his belief that all the plaintiffs  were  replacements  for  retiring directors. He was mistaken when he considered that all the plaintiffs’ engagements had expired.”

    The judge said the Minister acted unlawfully  when  he advised  the   plaintiffs  that  their  appointments   on  the   Board  of  the Authority  had ended.

    He said the plaintiffs had asked the court to order the Minister to return them to the board or to pay them damages. However, he would reserve his decision on this until he had met with legal counsel for the Minister and the plaintiffs.

    The  main points

    • The Tourism Minister has been told he was wrong to dismiss four members of the Board of the Tonga Tourism Authority on the grounds that their contracts had expired.
    • Tomifa Paea, Simana Kami, Finau Uata and Kisione Pakalanai were appointed by Cabinet as directors on the
    • On June 17 Tourism Minister Semisi Sika wrote to them saying they had been appointed only for  the  balance  of the term of a resigning director who they had replaced and that their appointments had expired.
    • However, Lord Chief Justice Paulsen said the Minister had acted unlawfully.

    READO MORE:

    Legal threats after minister sacks tourism board of authority

    Tourism board dismissal justified, new board members elected, Dr Palenitina says

    LEAVE A REPLY

    Please enter your comment!
    Please enter your name here