Spanning sixteen years, the long battle in the courts has finally come to an end for former dismissed manager of the New Building Society (NBS), Maurice Arjoon, who has been awarded his pension and other benefits in full.
Arjoon has already been paid a lump sum of in excess of $59 million, but the legal journey he has had to walk against the mortgage institution —which had been found to have wrongfully dismissed him in the first place—has been met with appeal after appeal.
That long, winding battle finally ended on October 23rd, with the Caribbean Court of Justice (CCJ) ruling in Arjoon’s favour, affirming a High Court judgment, in which it was found that he was entitled to be compensated accordingly for pension, loss of earnings and severance benefits.
Back in July of 2017, High Court Judge Brassington Reynolds, after ruling that the dismissal was wrongful, ordered NBS to pay the sacked manager more than $79 million in owed benefits.
While affirming that ruling, however, and dismissing a cross appeal filed by the NBS, the Trinidad-based CCJ, Guyana’s final appellate court, had reserved its decision on the issue of Arjoon’s entitlement to severance.
In a letter dated November 1st, 2023 to the NBS, from the law firm of Luckhoo & Luckhoo which represented Arjoon, his lawyers have demanded that their client be paid all sums owing.
That letter seen by this newspaper, provided a breakdown of the computation of the amounts to be paid.
In addition to the $59,033,281 already paid for which interest is still outstanding as at January 23rd, 2018; the CCJ has also awarded Arjoon the principal sum of $4,144,797 being payment in lieu of notice.
He was also awarded leave pay and passage assistance in the sum of $1,602,459; as well as monthly pension of $372,498 from July 2017 together with interest up to November 1st, 2023.
Additionally, court costs totalling $3,500,000 to Arjoon have to be borne by the NBS. The breakdown of court costs awarded by the High Court, Court of Appeal and the CCJ respectively had been $200,000; $800,000 and $2,500,000.
While seeking to remind the NBS that any delay in ensuring the amounts owing are paid to the client, would result in contempt of court, Arjoon’s lawyers have also said in their letter that steps will be taken to levy on its assets.
Like the High Court and Court of Appeal; the CCJ also found that Arjoon had been wrongfully dismissed.
The appeal before the regional court was heard by Justices Adrian Saunders, Maureen Rajnauth-Lee, Denys Barrow, Andrew Burgess and Peter Jamadar.
Background
Back in September of last year, the Court of Appeal in a unanimous decision affirmed Justice Reynolds’ ruling that Arjoon’s dismissal was wrongful; though it reduced the award to him for pension from $59,033,281 to $18,817,432.
Acting Chancellor Yonette Cummings-Edwards had said that Justice Reynolds was right to have awarded pension along with severance and benefits; but said the Court had found that in accordance with the Termination of Employment and Severance Pay Act (TESPA), it was only $18,817,432 to which Arjoon was entitled—from the date of his employment on December 1st, 1979 to his dismissal on August 13th, 2007.
The Chancellor had referenced the evidence that Arjoon had contributed over $6 million while the NBS had contributed over $12 million, which brought it to a total of $18,817,432.
“In our view, Arjoon is entitled to receive those contributions “subject to any indebtedness” to the NBS…,” she had said, while adding that with his employment having ceased, no further pension contribution or pension rights were in place.
Justice Reynolds had awarded full pension up to the date of dismissal and to when Arjoon would have retired.
NBS’ challenge had been that the award by Justice of Appeal, Rishi Persaud of $59,033,281 to Arjoon for pension was erroneous.
This sum was part of the more than $79 million, which had been earlier awarded to Arjoon by Justice Reynolds, who found that Arjoon was entitled to be compensated accordingly for severance benefits, pension and loss of earnings.
The position of the mortgage-lending institution was that pension could not be awarded together with severance and other benefits when an employee is terminated or dismissed.’
Wrongfully dismissed
Throwing out the appeal in full to Arjoon’s dismissal, the local appellate court upheld Justice Reynolds’ decision that the NBS had wrongfully dismissed the former manager and particularly underscored as the lower court had done that there was no evidence of wrong-doing on his part.
Referencing the TESPA and citing a number of case law authorities, the Guyana Court of Appeal, in affirming Justice Reynolds’ decision declared that the NBS did not meet the threshold for summarily dismissing Arjoon.
Further, the Chancellor had said that the NBS failed, as required by TESPA, to show that Arjoon by himself was directly responsible for the questionable withdrawal which led to his dismissal.
She had said that what was in fact established by the NBS was that there was a line of authority, and that there were a series of checks and balances prior to the transaction making its way to Arjoon for his signature.
On this point she said that as the trial Judge “rightly found, there is no place for Peter to pay for Paul or Paul to pay for all.” Chancellor Cummings-Edwards went on to stress that “it is not a case of ultimate responsibility but individual responsibility.”
It has always been the contention of Senior Counsel Edward Luckhoo, who represented Arjoon, that his client had been wrongfully dismissed and was therefore entitled to the full award of almost $80 million in damages.
Following Justice Persaud’s ruling in December of 2017 that Arjoon be paid the $59,033,281 for pension, it was only after the successful execution of a levy a month later that the mortgage lending institution wrote Arjoon a cheque for that payment in full.
A computation from estimates submitted by attorneys on both sides had pegged the total award of damages at $79,282,801 which Justice Reynolds granted on July 20th of 2017.
Justice Persaud had, 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’s ruling, the Society 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.
In its challenge to the Full Bench of the Court of Appeal—comprising the Chancellor, Justice Persaud and Justice Franklyn Holder—NBS through its attorney Pauline Chase argued, among other things, that the $59,033,281 was not due to Arjoon for pension, even on the premise that he was entitled to it for his service to the bank.
Luckhoo had argued that the central issue in the case was whether his client complied with the bank’s regulations for effecting the withdrawal in question, given that the holder of the account in question from which certain withdrawals were made, was overseas at the time.
He argued that in answer to the question of whether the transaction amounted to misconduct on Arjoon’s part, there was no evidence from the Society to so substantiate, though that has been its contention.
Luckhoo said that in fact, the evidence before the court from the bank’s own auditor and other employees who testified at the trial, has been that the former manager complied with every regulation he ought to have followed as well as his subordinates.
The lawyer had said, too, that the power-of-attorney of the account holder—Bibi Khan—by which the withdrawal was authorized, was found to have been valid as reflected by the records of the Deeds Registry, as the Court also found.
He said that though Khan had visited the bank and merely said that she did not authorize those withdrawals, there has been no evidence before the court that it was not her who had authorized the withdrawals.
In its challenge to the High Court ruling, NBS 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.
On June 12th, 2007, Arjoon and two other managers, Kent Vincent, Operations Manager, and Kissoon Baldeo, Assistant Mortgage Manager, had their services terminated after millions were 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.
