The New Building Society (NBS) has moved to the Court of Appeal to set aside the more than $79 million in payments awarded to its former Chief Executive Officer (CEO), Maurice Arjoon, who was fired from the post more than a decade ago, citing over a dozen reasons.
In July 2017, Arjoon was awarded $79,282,801 in outstanding payments and benefits by High Court Judge Brassington Reynolds, some five years after he filed a wrongful dismissal lawsuit against his former employer. He had sued NBS for $550 million on the grounds that he was wrongfully dismissed and that the financial institution withheld pension and other benefits that were lawfully due to him.
While the Judge did not award him monetary damages for breach of his employment contract under the Common Law, Arjoon was awarded $4.1 million for pay in lieu of notice in accordance with Clause 10 of his contract; $16.1 million for severance benefits; and some $59 million for pension — which subsumes a lump sum pension of $17.4 million and reduced monthly pension payments of $372,498 for the rest of his life.
NBS was ordered to pay costs in the sum of $200,000 to Arjoon.
NBS’s Notice of Appeal which was filed by Senior Counsel Ashton Chase and Attorney-at-Law Pauline Chase lists NBS, Trust Company (Guyana) Limited, the executor of the estate of Ahmad Khan, Seepaul Narine and Nizam Mohamed as the appellants, and Arjoon as the respondent. The appeal hearing is ongoing at the Court of Appeal. Another hearing has been scheduled for January 17, 2022, at 09:30h.
Arjoon was fired from his position in connection with a Magistrate’s Court matter wherein he, NBS Operations Manager Kent Vincent, and NBS Assistant Mortgage Manager Kissoon Baldeo were all accused of conspiracy to defraud the NBS of $69 million. The court matter was eventually dismissed, and Arjoon and the others took the financial institution to court in 2011.
An investigation had claimed that the fraud was committed in 2006, and the men were all fired the next year after it had allegedly been determined that the men were at fault for dereliction of duty, negligence, and/or serious misconduct. The NBS had contended that an unauthorised withdrawal of nearly $70 million had been made from an account that its client Bibi Shamina Khan held. The NBS’s issue with the withdrawal was that it was made through a Power of Attorney, and the company had implicated Arjoon for misconduct.
However, in the court’s view, the NBS had failed to provide evidence that supported its claim of misconduct, whether serious or otherwise. Arjoon had said he believes he was set up on the fraud allegations because he allegedly had refused to approve a loan of some $2 billion applied for in 2006. He claims the investigation into the fraud allegations was conducted later that same year, implicating him as CEO, as well as the other men.
Grounds of appeal
The first is that the appellants except NBS are not the due and proper parties for the High Court proceedings and consequently they should have been discharged from same and awarded costs which are claimed as being still due. NBS contended that on the basis of the trial Judge concluding that Arjoon was wrongfully dismissed, he was not entitled to severance pay by virtue of his status and contract and according to the Termination of Employment and Severance Act.
According to NBS’s lawyers, the pension cannot be awarded in conjunction with severance or any other benefits that relate to termination or dismissal. The Notice of Appeal states that the trial Judge was wrong in law in acting on part of the Systems Manual tendered by Arjoon and not on or disregarding the complete Systems Manual tendered by NBS which showed that he did not confirm with part of the latter, and that the Judge did not give due attention to the relevant parts affecting the respondent’s conduct in the NBS rules, the Systems Manual, the Pension Rules and the contract signed by him.
Among the other grounds of appeal are that the trial Judge’s decision as to the fault or failure of NBS was unreasonable having regard to the evidence adduced, that the decision of the Judge was erroneous in point of law, that the pension ordered to be paid is not in accordance with the relevant Pension Rules and the court’s system of arriving at the amount has not yet been disclosed, and the rejection of some valid exhibits on the part of NBS while all of Arjoon’s exhibits were readily accepted by the court.
The Notice of Appeal added that Arjoon’s failure to attend a summoned meeting for discussion (including investigating) with the NBS Board, was not taken into account by the Judge even though his action hereto was not in compliance with the order made by now-retired Justice BS Roy in 2007.
It was further stated that the Judge did not take into account the “heavy loss” suffered by NBS due to Arjoon’s non-compliance with reasonable practice, with the Rules of the aforesaid and their system and practice of operating saving accounts touching various matters including loss of passbooks, acting on communication from overseas without signatures or address or notarisation.
NBS argued that the over-riding defaults in Arjoon’s dealing with the withdrawals from the account of Bibi Shamina 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.
It argued too that the Judge did not take into account the “falsity” of the Power of Attorney, the numerous errors in it, and Arjoon not sending same to the NBS’s lawyer or any other lawyer for checking on its validity before paying out such huge sums on it and that it is clearly fraudulent and illegal, nor did he make any check on the local office covering Canada or at any material time on Guyana’s office in Canada.
In the circumstances, the appellants pray that the rulings and awards of the trial Judge be set aside, be reversed and that the counterclaim be ruled in favour of the appellants and that Arjoon be ordered to pay costs in the Court of the Appeal and the court below.
Meanwhile, Justice Reynolds in relying on case law authorities, found that NBS did not provide substantial evidence to prove that Arjoon committed gross or serious misconduct which warranted his dismissal. As such, the Judge held that it was unfair for Arjoon to be dismissed when the bank had no systems in place to prove that he was guilty of any wrongdoing.
According to the Judge, during the trial, NBS admitted that it had poor systemic procedures of adequate checks and balances for detecting gross or serious misconduct such as the allegations levelled against Arjoon.
