In the face of declaring it would honour whatever final judgment was awarded to former manager, Maurice Arjoon, whom it sacked a little over a decade ago, the New Building Society (NBS) has stepped back on its word.
The Society instead, has renewed its argument that the dismissed manager is fully responsible for his termination and partly for losses suffered by the bank, amounting to more than $70M.
The bank is currently challenging the ruling made by Justice of Appeal, Rishi Persaud that Arjoon be paid the more than $59M in pension owed to him.
To this new challenge, the bank is again saying that whatever the court’s ruling, it will honour the judgment.
On December 20 last, Justice Persaud ordered that Arjoon be paid pension to the tune of $59,033,000.
This sum was a fraction of the more than $79M earlier awarded to Arjoon by High Court judge, Brassington Reynolds, who ruled that he was “wrongfully dismissed,” and entitled to be compensated accordingly for severance benefits, pension and loss of earnings.
Following the court’s computation from estimates submitted by attorneys on both sides, Justice Reynolds, on July 20 of last year, awarded a total of $79,282,801 to Arjoon.
Justice Persaud, however, stayed the remaining $20,249,801 which was awarded to the sacked manager for severance.
Among the grounds on which it appealed the High Court ruling, the bank termed Justice Reynolds’ decision erroneous, arguing that pension could not be awarded together with severance and other benefits, when an employee is terminated or dismissed.
The bank had expressed confidence that its appeal was on “sound grounds,” but noted that if perchance it loses, it will honour the judgment to be finally given in Arjoon’s favour.
The bank has, however, now done an about-face on that undertaking, which means that Arjoon’s challenge which began in 2007, continues, as he is yet to receive any payment since Justice Persaud’s ruling.
In its newest challenge to the Full Bench of the Court of Appeal, the bank is arguing among other things, that the $59,033,000 is not now due to Arjoon, (Respondent), for pension, even on the premise that he is entitled to it for his service to the bank.
According to the financial institution, the High Court judgment does not include this figure.
It argues that in the absence of Justice Reynolds’ July 17, 2017 judgment which is yet to be made available, the basis for, and accuracy of the pension figure is not available for its examination and critique.
The bank (Appellant) holds further, that Arjoon is fully responsible for the termination of his services, and partly for the more than $70M it has suffered, including legal expenses for a counterclaim it made.
NBS is contending that its counterclaim was not granted on any clear ground but apparently overlooked in the judgment pronounced.
The Appellants are advancing, that if they were to comply with the judgment, it would incur further and greater loss.
In its affidavit supporting its motion, the bank posits that the only real property known to it as owned by Arjoon, is jointly owned by him.
As it had said in its appeal to Justice Reynolds’ ruling, the bank restates in its current challenge, that its counterclaim was not addressed.
It said that in any event, should that counterclaim be upheld, which would be after the Society pays the order under appeal, there is no known asset possessed by the Respondent, from which it (the Appellant) can recover such a “huge sum.”
The bank is also contending that Justice Persaud’s refusal to stay payment of pension “is neither fair nor just” and is seeking an order setting it aside, removing or alternatively varying it.
Though reneging on their previous undertaking, the bank has again expressed the view that its appeal “is on sound ground,” noting that if per chance it finally loses, it will “undertake to honour the judgment to be finally given in favour of the Respondent.”
The appellants are seeking any other order the court may deem just, as well as costs.
A date is yet to be fixed for the matter to be heard before the Full Bench of the Court of Appeal.
In addition to the NBS, the other listed appellants are Trust Company Guyana Limited, Executor of the Estate of Ahmad Khan (deceased), Seepaul Narine and Nizam Mohamed.
The bank is being represented by Senior Counsel Ashton Chase and attorney Pauline Chase. Meanwhile, representing Arjoon, are attorneys Sanjeev Datadin, Ganesh Hira and Siand Dhurjon.
In its challenge to the High Court ruling, the bank had argued among other things, that on the basis of the trial judge’s conclusion that Arjoon was “wrongfully dismissed,” he was not entitled to severance pay by virtue of his status and contracts and according to the Termination of Employment and Severance Pay Act.
It said too, that pension, which the court also awarded, could not be granted in conjunction with severance or any other benefit related to termination or dismissal, and that the judge did not give due attention to the relevant parts affecting Arjoon’s conduct in the NBS rules, the systems manual, the pension rules and the contract signed by him.
Additionally, the NBS had advanced that the overriding defaults in the respondent’s dealing with the withdrawals from the account of Khan were not taken into account by the judge nor did he consider that the person making the withdrawals from the account was not duly and properly authorised to do so, thereby causing NBS a loss of over $79 million.
In his judgment, Justice Reynolds had said that the court found no evidence to substantiate NBS’s claims that Arjoon committed gross or serious misconduct, warranting his dismissal. The judge had said that it showed no established rules, standards or procedures which Arjoon was guilty of breaching.
On June 12, 2007, Arjoon and two other managers, Kent Vincent, Operations Manager and Kissoon Baldeo, Assistant Mortgage Manager, had their services terminated after $69 million was discovered missing from the account of Bibi Khan.
Arjoon was interdicted from duty before being dismissed. The trio, along with several other employees of the bank, were charged in the matter but they were later freed after Khan repeatedly failed to attend court hearings.
After the charge against him was thrown out, Arjoon subsequently filed the lawsuit against the society, for wrongful dismissal.
Late Ombudsman Justice Winston Moore had concluded that the three managers suffered a “grave injustice” as he found that there was insufficient evidence to suggest that the trio was guilty, let alone to successfully prosecute them.
