Response to Article: “MSG hails court decision”

Molean Kilepak (r) receives Vanuatu Free West Papua petition from Malvatumauri Chairman, Chief Seni Mao Tirsupe in 2016

The former Deputy Director General of the MSG Secretariat, Mr. Molean Kilepak is responding here to an article recently published by PACNEWS on the Melanesian Spearhead Group (MSG).

He said ideally PACNEWS should obtain a copy of the court decision to report on or seek the other party’s views first rather than relying on a statement prepared by one party, in this case, the Director General, Mr. Amena Yauvoli.

Firstly, I have just received a copy of the written decision of the Court and as I understand it, the Supreme Court upheld the claim for immunity based on the Host Country Agreement signed between the Director General at the Ministry of Foreign Affairs, International Cooperation and External Trade (MOFAICET) – Vanuatu and the Director General of MSG Secretariat. The applicable law in Vanuatu, the Diplomatic Privileges and Immunities Act does not provide immunity to MSG Secretariat as it should but the Court’s decision was based on the Host Country Agreement. There are some issues with this if it is true. I wonder if the Host Country Agreement can be legally enforced in Vanuatu.

Secondly, the court proceeding was for a breach of contract by DG Yauvoli and not against the Governing Body decision. This has been clearly stated in the Sworn Affidavits filed in Court and in our emails to the Director General to which he acknowledged. To intentionally mislead Members and the general public that it is against the Governing Body decision is a serious disciplinary case that brings into disrepute the office of the Director General.

In implementing the Governing Body decision, the Director General owes a duty of care to the employees to ensure it is done within the context of contractual obligations, internal polices and regulations and consistent with the laws of the host country.

Thirdly, the breach of contract arose from a grievance raised by staff when DG Yauvoli reduced the salaries of staff (up to 32%), including the Deputy Director General without consulting individual staffs and mutually agreeing to the variations as per our employment contracts and the MSG Staff Regulation. Staff have approached the Commissioner of Labour after having met at a meeting organized by Mr. Kilepak as the Acting Director General. It was based on a request by some staff.

Fourthly, it was noted that our contracts of employment and the Staff Regulation provided for the application of the laws of Vanuatu where there is inconsistency between the Staff Regulation and Laws of Vanuatu or where an issue is silent in the Staff Regulation.

This is contained in the Staff Regulation and was endorsed by the Governing Body. The aggrieved staff members have done the right thing by consulting the Commissioner of Labour after unsuccessful attempts to discuss and sort out their grievances internally with DG Yauvoli. I have proof to show that we have sought attempts to discuss and settle this internally yet our grievances were merely brushed aside.

Fifthly, DG Yauvoli had issued a Circular to staff advising that he would discipline any staff that does not agree with the actions he has undertaken. This is a clear threat to the staff members.

Thus, having met with the aggrieved staff as Acting Director General, I wrote a letter on our behalf to the Commissioner of Labour (CoL). DG Yauvoli had since questioned the powers of the CoL and did not attend all the three conciliation meetings requested and convened by the Conciliator. We are now awaiting an arbitration to be established to look into our matter and hopefully the membership can see the rationale for staff to invoke the provisions of the laws of the host country.

Finally on 10th February 2017, I was called by DG Yauvoli into his office and given a letter advising of his intention not to renew my contract based on poor assessment, to which I disputed in my letter of response to him, copying all MSG Focal Points on the 13th February 2017. This is contrary to the Governing Body decision that agreed for my contract not to be renewed as a cost saving measure with adequate notice to be given.

Yet DG Yauvoli saw it fit to advise contrary to the Governing Body decision and instead made reference to poor performance. It makes a mockery of our organization where Members agreed for the position of Deputy DG to be created and I was the first incumbent being appointed and then three years on, Members agreed not to renew the contract as a cost saving measure, all based on recommendations in the so-called HR Report. This in fact is making the position redundant and I should be released on redundancy not based on ‘poor performance’ as the Director malignly outlined in his letter. Non-renewal only applies where the position is to be advertised but this is not the Governing Body decision.

I was appointed on a merit based process by a Panel of MSG — Senior Officials Meeting (SOM) members and not hand-picked. Therefore, to be advised that my contract won’t be renewed at such a very short notice based on reasons of ‘poor performance’ without any reference to my key performance indicators is not only an insult to me as a legal professional but is also damaging to MSG’s reputation as the premier international sub-regional organization for Melanesia.

Under the MSG Agreement and as per my contract of employment, I was entitled to a second term appointment, like all other staff, on a non-competitive basis subject to satisfactory performance. No assessments were provided to me as per our Performance Management System (Appraisal system) although I had submitted appraisals for the last two years as requested by him.

DG Yauvoli also issued instructions for staff not to communicate with me except through his office and had me restricted from accessing my work email. Such actions undermine the spirit and intent of the MSG as an organization as reflected in the Principles of Cooperation embedded in the Agreement Establishing the MSG.

I see this as a way to get back at me for standing up on behalf of the aggrieved staff members totaling to 15 out of the total staff strength. We stood firm against his actions that resulted in him breaching our contracts, which is contrary to the Labour Laws in Vanuatu. In that letter, he forced me to take leave as of the 13th February 2017 until the expiry of my contract on 25th March 2017. As a result, I was denied my outstanding leave entitlements as part of my final entitlements when I left. I have also been denied my severance entitlements (although former staff members have been paid and are continuing to be paid of their outstanding severance).

As if the matter was not worse enough for me and my dependents, my VNPF entitlements have been paid directly to me as a lump sum without the interest rate and my final entitlements were based on the illegal reduced salary level.

In noting the ill treatment and my immediate repatriation back to PNG without full entitlements, I pursued an action in Court for a breach of contract, noting my rights as a citizen of a member country and also as a diplomatic staff as well.

Instead of defending his actions in Court, DG Yauvoli claimed immunity and now he sees fit to come to the media and talk about the case! He did not defend his actions in Court and claimed immunity instead! This is a very serious matter that calls for an immediate action by Leaders to investigate his actions. As per the written Judgment by the Supreme Court, my understanding as a professional lawyer is that once a claim for immunity is upheld, the Court cannot hear the case as it has no jurisdiction. I do not understand how the Court would say the Director General is clear of any wrongdoing! This statement is very misleading coming from the Director General, who is also a career diplomat and should know very well that claiming immunity means you do not respect nor wish to be subject to the laws of the host country. And there are implications for claiming immunity where the host country can take actions against a diplomat depending on the seriousness of the matter. I leave that to the Government of Vanuatu.

Unfortunately, my family and I were asked by the MSG Secretariat to leave the country (Vanuatu) on Friday 24th March 2017, at the very same time the Supreme Court was sitting to hear the written submissions. I was therefore not able to assist my lawyer in this matter but I will review the court’s decision to ascertain whether or not an appeal can be made.

I believe our arguments that the relevant law in Vanuatu (Diplomatic Privileges and Immunities Act CAP 143) that applies to the granting of diplomatic privileges and immunities to international organizations in Vanuatu has not been satisfied for the MSG Secretariat to be immune.

The MSG Secretariat has not been declared so by an Order issued by the Minister as per Schedule 2 of this Act and as such, for all purposes and intent, the application of diplomatic immunity does not apply. If one looks at the international organizations listed under Schedule 2 of the Diplomatic Privileges and Immunities Act, the MSG Secretariat is not one of them. This argument has basis and I believe Mr. Yauvoli relied instead on the Host Country Agreement, on which a decision was made to affirm immunity.

If this is the case, it will be interesting to ascertain if the Host Country Agreement (signed by Director Generals of both MSG Secretariat and MOFAICET) can override the Diplomatic Privileges and Immunities Act, a law passed by Parliament, including whether or not Constitutional requirements for ratification of treaties and international agreements have been satisfied for the Host Country Agreement. Perhaps, State Law Office can assist to provide advice on this.

It is important however to note that the issue of immunity has been used by the Director General to hide away from the real issue – the ill-treatment of staff by him.

If MSG members are serious about the credibility and reputation of their Secretariat, calls should be made for the immunity provisions to be waived and the real issues to be addressed transparently by the appropriate authorities in the host country.

After all, the Agreement Establishing the MSG and the Host Country Agreement also calls for the need to respect and uphold the laws of member countries, and we should do so for Vanuatu as the host country.

Interestingly, the Host Country Agreement also provides that the Secretariat can sue and be sued – so let’s be fair to the staff and allow the matter to be dealt with by the authorities in Vanuatu. The issue of immunity should be looked at on a case-by-case basis and for this particular issue — it is between aggrieved staff members of the Secretariat and the Director General. Therefore immunity should not be allowed to allow us to fearlessly address issues of importance to the organization.

If members don’t address this issue, we will set a bad precedent where the Director General will always do as he/she pleases without following agreed established policies, regulations and where applicable, the laws of the host country. Contracts of Employment signed between the Director General and any staff will be difficult to enforce if the latter claims immunity. Staff employed now can be terminated at will without proper assessments being done and unsubstantiated and unqualified Reports will be produced and given directly to the Governing Body for endorsement.

Our internal policies and regulations, as approved by the Governing Body are silent on such matters and as such, the Staff Regulation clearly provides that in such instances, the laws of the host country applies. The Governing Body approved this as well so let’s get our acts together.

I am proud to have stood up against the actions of the Director General and can only use the Court’s decision to show that I waived my immunity to subject myself to the courts of the host country to challenge the actions of the Director General, on behalf of staffs from four member countries and instead of him defending his actions to prove he was right, he claimed immunity.

I do not wish to further raise any MSG Secretariat internal issues in the media so equally ask the Director General to be mindful of the integrity and reputation of the MSG as an organization and not make any misleading statements. DG Yauvoli should be man enough to face the courts of the host country for his actions against all current MSG staff members. I also call on MSG Member Governments to act now in the best interest of the organization by also considering staff concerns as being paramount to an effective Secretariat.

In doing so, I call on the Government of Vanuatu to consider taking appropriate actions in fulfilling the need to ensure diplomats also respect the laws of this wonderful country, to which we are privileged to be living and working here., noting that aggrieved staff members, including myself have lodged our concerns before the Commissioner of Labour and an arbitration board needs to be established to look into this matter as soon as possible.

The facts attested to the above are contained in my Sworn Statements filed before the Supreme Court and can be obtained at the court house.



PS: The Courts Decision can be obtained from PACLII.

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