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.