The Supreme Court has dismissed an application by Nanisē Fifita to quash a decision by the Minister for Public Services to void her reappointment as the General Manger of Tonga Broadcasting Commission.
However, Chief Justice Paulsen said he made no comment as to whether she may still have remedies available to her in respect of any failings of the Board of TBC to obtain the Minister’s approval to her reappointment.
The judge said he had considerable sympathy for Mrs Fifita.
“She has by all accounts been an excellent employee,” he said.
He described her as “a long term, loyal and able servant of TBC” who had been general manager since October 2008.
Some evidence had been presented by Mrs. Fifita that she was not reappointed because the Prime Minister was angry with journalists at TBC.
“However, this issue hardly featured at all in counsel’s arguments and was not relevant to the issues I had to decide,” the judge said.
Mrs Fifita had initially sought an injunction to restrain TBC and the Minister from appointing any other person as the General Manager of TBC.
On June 26 Mrs Fifita’s lawyer, Clive Edwards, asked to submit an affidavit from the former Company Secretary of TBC, Ane Mailangi, which it was said had a “critical bearing on the case.
“The admission of the affidavit of Ms. Mailangi marked a fundamental shift in the basis of Mrs. Fifita’s case,” Lord Chief Justice Paulsen said.
Mr Edwards disavowed the earlier arguments that Mrs Fifita had a right of renewal under her contract of employment which had already been approved by the then Minister or that in withholding his approval to her reappointment the Minister had breached an implied obligation of mutual trust and confidence, did not act in good faith or failed to observe natural justice.
Following the submission of the new affidavit, Mr Edwards argued that the Minister had in fact given his approval to the reappointment of Mrs. Fifita. Secondly, he argued that the Minister could not withhold his approval because he did not accept the terms of employment agreed between Mrs. Fifita and TBC.
“Mrs. Fifita says that prior to the expiry of the contract she made the then Chairman of the Board, Mr. Tapu Panuve, aware that her contract was up for renewal and she understood from him that it would be renewed,” the judge said.
“Despite a sub-committee of the Board conducting a review of her performance and finding it satisfactory, Mrs. Fifita’s contract was not renewed.”
Lord Chief Justice Paulsen said that Ms. Mailangi gave evidence that the Minister had approved the renewal of the contract, but that he wanted it to be amended so that the renewal clause would not appear again in any future employment document.
However, after analysing the different claims, the judge said Mrs. Fifita had entered into a new contract with TBC on March 21 this year. This expressly provided that the appointment was subject to section 26 of the Public Enterprises Act. Her reappointment therefore undoubtedly required the Minister’s approval, but that approval was never obtained.
“In relation to Mrs. Fifita’s contract the Minister had legitimate reason to be concerned that it contained a right of renewal,” the judge said.
“That provision was inconsistent with Government policy which required that posts be advertised and thereby subject to open competition. Even had his approval been given subject to the removal of the renewal provision, that was a condition the Minister was entitled to impose.
“It follows that. Mrs. Fifita’s application for judicial review must be dismissed.”
The main points
- The Supreme Court has dismissed an application by Nanisē Fifita to quash a decision by the Minister for Public Services to void her reappointment as the General Manger of Tonga Broadcasting Commission.
- However, Chief Justice Paulsen said he made no comment as to whether she may still have remedies available to her in respect of any failings of the Board of TBC to obtain the Minister’s approval to her reappointment.
- Some evidence had been presented by Mrs. Fifita that she was not reappointed because the Prime Minister was angry with journalists at TBC.
- “However, this issue hardly featured at all in counsel’s arguments and was not relevant to the issues I had to decide,” the judge said.
