Lew is not AVL Chairman: Maltok

The twice-former Chairman

of Airports Vanuatu Limited (AVL), Maxwell Maltock, has claimed that the current Chairman of AVL, Alain Lew, had tendered his resignation in November 2014 and is therefore not the chairman of the Government State-Owned-Enterprise (SOE).

However, Lew has countered that he and other AVL Directors in the Board he headed did not resign but were forced out.

Maltock has sought to speak out on the continuing AVL saga “to clear some of the confusion in the SOE” following the latest allegations made by Lew leveled against some of the members of former board Board, with Mark Stafford cited, for questionable activities, to dismiss the current Board.

In a statement to the Daily Post, the chairman of the previous AVL Board stated that “it has become very evident following recent developments in the AVL saga, that the AVL shareholders, board of directors, management and staff, and the general public are being misled to believe that somehow Mr. Lew is currently the legally appointed Chairman of AVL.”

He explained that this confusion seemed to hinge on the decisions of the Courts in Judicial Review Case (JRC) N. 16 of 2014 and Civil Appeal Case No. 46 of 2015 whereby former members of the AVL Executive Management and Mr. Lew, then former Chairman of the Board, challenged the decision of the new AVL Board that he (Maxwell Maltock) led.

Maltock then listed according to him events surrounding the issue that occurred since his appointment as Chairman of AVL in early 2014 until the end of his term in June this year.

“In early 2014, the government at that time led by Moana Carcasses, decided to transfer the AVL portfolio from the Ministry of Infrastructure and Public Utilities (MIPU) to the Ministry of Internal Affairs (MOIA) with the Ministry of Finance and Economic Management (MFEM) as the two Shareholders of AVL,” he went on.

The shareholders met in February, 2014 and decided by resolution to terminate the existing board chaired by Lew and appointed a new board which was chaired by Maltock.

“The new board immediately began looking into governance issues and found serious allegations against members of the AVL Executive Management that reflect in the findings of the audited reports of the company for 2012, 2013 and 2014 (conducted and compiled by an independent auditor).”

This resulted in the suspensions of the officers concerned and later terminations, following “a thorough investigation that uncovered evidence supporting the allegations” against the officers.

“Given the seriousness of these allegations and the significant amount of AVL funds involved, Civil Cases No. 286 and No.296 of 2014 were filed by AVL against the terminated Executive Management employees for the misappropriation of AVL funds,” Maltok continued.

Meanwhile, the terminated Chairman Lew and Executive Management employees sought remedy in the Courts for their termination, which they claimed was unlawful.

“It was important at this point to note at this point that there are two separate issues here, from a legal perspective.

“1. Civil issues – the legal process involved in the setup of the AVL Board in compliance with the Companies Act and the AVL Articles of Association and the legal processes involved in the termination of the AVL employees in compliance with the Employment Act and the Contracts of Employment.

“2. Criminal issues – the alleged theft of AVL funds, the alleged misappropriation of AVL funds, the alleged theft of AVL funds by deception, and the alleged manipulation of financial records,” Maltok explains.

He pointed out that the civil issues were the basis of the court’s deliberations in JRC No. 16 of 2014 and the criminal issues were basis for AVL filing Civil Cases No. 286 and No. 296 of 2014 against the terminated employees for misappropriation of AVL funds.

“The Criminal Issues were never dealt with in the JRC No. 16 of 2014 and are yet to be judged in a court of law,” the former AVL chairman explained.

According to Maltok, the RJC No. 16 of 2014 in the Supreme Court was judged solely on the processes involved in the setup of the AVL Board which had not been compliance with the Companies Act and AVL’s Articles of Association.

On November 3, 2014 the Supreme Court ruled that certain legal processes had not been strictly followed by the shareholders at the time with regards to the removal of the Alain Lew Board and the setting up of the new Board in accordance with the Companies Act and the AVL’s Articles of Association.

“Subsequently, the Board I led and all the decision, which it made were ruled null and void,” he stated.

The court ordered the reinstatement of the Alain Lew Board as well as the Executive Management employees that had been terminated, since the decision to terminate their employment was made by an illegitimate Board and therefore deemed null and void.

The Civil Cases No. 286 and No. 296 of 2014 filed by AVL against the terminated employees were stayed by the court pending any decisions and resolutions by the AVL Board.

“Immediately after the reinstatement of all Directors of the Alain Lew Board and Executive Management employees, a board meeting was convened on November 5, 2015 and resolved to reinstate the executive management employees in accordance with the JRC No. 16 of 2014 decision, backdate and pay entitlements of the reinstated employees in accordance with the JRC No. 16 of 2014 decision, quash and withdraw allegations that were the basis of the reinstated Executive Management Employees’ Termination of Employment and issued Deed of Settlements of Civil Case Nos. 286 and 296 and resolved to discontinue these cases forthwith,” Maltok explains.

He questioned why the Board did not allow the matter to be decided and settled in a court of law.

“Alain Lew then tendered his resignation to the Minister of MFEM as a Director of AVL representing the Vanuatu Chamber of Commerce and Industries on the same day, November 5, 2014. The other members of the AVL Board also tendered their resignations as Directors of AVL over the days following Alain Lew’s resignation,” Maxwell Maltok claimed.

Approximately two weeks following the Supreme Court’s judgment on JRC No. 16 of 2014, the government at that time led by Joe Natuman, transferred the AVL portfolio from the MOIA back to MIPU. The two shareholders then followed the correct processes and set up a new Board in accordance with the AVL Articles of Association, which Maltok was once against appointed as a Director and eventually elected as Chairman of the Board.

“It is important once again to note at this point that this was a completely new Board setup following the resignations of the Directors of the AVL Board chaired by Alain Lew and in accordance with the AVL Shareholders’ directives and the Articles of Association,” Maltok further explains.

Following the appointment of the new AVL Board it still viewed the allegations of misappropriation serious in nature and scale and the same executive management employees were suspended again and given time to respond to which they did not and with the expiry of their contracts early in 2015 their employment with AVL were terminated.

In May 2015, the Court of Appeal issued its decision and judgment on Civil Appeal Case No. 46 of 2015 in terminating Alain Lew as Chairman and the three employees of AVL were susceptible to judicial review.

“The judgment of this Appeal Case shows that the Appeal Case deliberated on this sole argument and never ordered a reinstatement of Alain Lew once again to the AVL Board. Yet Alain Lew still claims that this case is somehow instrumental in his claim to be reinstated as AVL Chairman in September 2015.”

In June 2015, the AVL Board led by Maxwell Maltok finally appointed a new Executive Management Team and mandated by the AVL Board via a resolution to continue to pursue legal avenues to bring allegations of misappropriations of AVL funds before a court of law. The new executive re-launched these allegations as criminal complaints with the Vanuatu Police Force to investigate and prosecute as a criminal case.

“I believe this is now the subject of another Judicial Review Case which was brought before the courts in JRC No. 26 of 2015 which has been now appealed according to the former Acting Police Commissioner.”

“Alain Lew’s return to AVL in September 2015 resulted in mass terminations of the newly appointed executive management team, for no discern reason, only three months following their appointments,” Maltok has claimed.

He went on to question why Mr Lew was able to “mislead the Shareholders of AVL and the general public by concealing the fact that he has already tendered his resignation as Director of AVL representing the VCCI in November 2014.”

Current Chairman Alain Lew has countered denying he and the other Board members of AVL resigned in November 2014 but that they were forced out “because they (new government) were in power at that time.”

He again alleged that Maxwell Maltok as Chairman of AVL had approved for payment of all the bills, approximately Vt1 million a month, submitted by Barrett and Partners (B&P) for administration functions performed for AVL.

He said his Board suspended the payments after it was reinstated in September this year. Lew also alleged that the decision to get B&P to perform administrative tasks for AVL had not gone through the AVL Board.