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Munro Leys Report Tells

The Fiji Sun has been able to acquire a 13-page legal opinion on the legal status of Professor Pal Ahluwalia’s work permit and contract with USP.
02 Mar 2021 11:33
Munro Leys Report Tells
Monro Leys partner Jon Apted. Photo: Facebook

The University of the South Pacific may be in breach of law if they continue paying Professor Pal Ahluwalia upon the termination of his contract.

This information is included in the legal opinion of Munro Leys Partner Jon Apted provided to the USP Council sub-committee.

The Fiji Sun has been able to acquire a 13-page legal opinion on the legal status of Professor Pal Ahluwalia’s work permit and contract with USP.

It follows his deportation last month after the immigration department found he had breached his work permit for USP Vice Chancellor.

Below are excerpts of the legal advice by Munro Leys partner Jon Apted:

Under the (Immigration) Act, Professor Ahluwalia was not entitled to prior notice of any breach of his permit or to a hearing before the Ministerial decision. The decision is not appealable and cannot be challenged in any court1. As a consequence, we are not aware of whether the work permit has been formally cancelled; but it has been cancelled in effect. If any issue was made of this, the Fiji Immigration authorities are in a position to formally cancel the work permit with backdated effect.

Under clause 24(b) (of the contract Prof Ahluwalia held with USP), Professor Ahluwalia’s Contract was to terminate automatically, without any action by the Council, if his work permit were to be cancelled. Clause 24(b) may be interpreted literally as requiring a formal cancellation of the work permit or broadly to apply when the work permit is effectively cancelled. In our view, the broad interpretation would apply. In any case, the Immigration authorities may formally cancel the permit now if they have not done so already.

If Professor Ahluwalia’s contract has been terminated, he no longer holds office as the Vice-Chancellor. Under the Statutes, his tenure was contractual and his first five-year appointment ended when his Contract was terminated;

The Council may offer Professor Ahluwalia a renewal of contract under Statute 7(2) and may include amended contractual terms. If Professor Ahluwalia indicates that he wishes to be considered, no international search would be necessary. There is a procedure in the Council’s Handbook. Such a renewal would be in respect of a second five-year term;

In the limited time available, we have only been able to review the Charter and Statutes. There is nothing in those instruments that expressly prevents the Vice-Chancellor from being based outside of Fiji, provided he is able to fulfil his role of chief academic and administrative officer from the new location. Such a decision may have wide-ranging effects and should only be made after a careful review of other governance documents, staffing, resources, agreements, etc;

Clause 17 of the Contract requires Professor Ahluwalia to bring any claim against the University in the courts of Fiji. If he brings a claim in a court in another country, it would be for that court to decide whether it will honour and enforce the Clause. If Professor Ahluwalia is not re-appointed, the only certain way for the Council to protect itself would be by way of a formal deed of settlement (with or without monetary compensation);

We are unable to give definitive advice on donor funding agreements without reviewing them. However, the University is unlikely to have breached a funding arrangement if Professor Ahluwalia ceased to be involved in the funded activities upon ceasing to be able to work lawfully. Depending on the relevant wording and circumstances, the University may breach an agreement if it continued to employ him unlawfully after his removal.

T0o View the legal advise: https://drive.google.com/file/d/1NpbKKx7Vcti7XgpXb9ps7iuoFIFwl0HA/view

 

Feedback: jyotip@fijisun.com.fj

 

 



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