NBS challenge against $79M payout: Appeal Court to hear further arguments on March 1

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Maurice Arjoon

The full bench of the Guyana Court of Appeal will hear further arguments on March 1 in an appeal filed by the New Building Society Limited (NBS) against a ruling of High Court Justice Brassington Reynolds to award $79M in benefits to Maurice Arjoon, whom the court found had been wrongfully dismissed from that financial institution.

Represented by Ashton Chase, SC, and Pauline Chase, the NBS has moved to overturn the decision of the lower court, and has outlined over a dozen grounds in its Notice of Appeal. Arjoon, who was dismissed from being Chief Executive Officer (CEO) of the NBS over a decade ago, is represented by Senior Counsel Edward Luckhoo.

In July 2017, Arjoon was awarded $79,282,801 in outstanding payments and benefits by Justice Reynolds, some five years after he had filed a wrongful dismissal lawsuit seeking more than $500M in damages against his former employer. He had mounted the suit on the grounds that he was wrongfully dismissed and was not paid pension and other benefits that were lawfully due to him.

While the Judge did not award Arjoon monetary damages for breach of his employment contract under the Common Law, he was awarded $4.1M for payment in lieu of notice, in accordance with Clause 10 of his contract; $16.1M for severance benefits; and some $59M for pension — which subsumes a lump sum pension of $17.4M and reduced monthly pension payments of $372,498 for the rest of his life.

Further, NBS was ordered to pay Arjoon costs in the sum of $200,000.

Meanwhile, at the Court of Appeal, the NBS argued, among other things, that on the basis of Justice Reynolds’s 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.

Further, lawyers for the NBS argued that the trial Judge did not take into account the “heavy loss” the NBS had suffered due to Arjoon’s non-compliance with reasonable practice of the System Manual and practise of operating savings accounts touching various matters, including loss of passbooks, acting on communication from overseas without signatures or address or notarisation.

The NBS is also seeking to set aside the ruling on the basis that the overriding defaults in Arjoon’s dealing with the withdrawals from the account of Bibi Shamina Khan were not taken into account by Justice Reynolds, 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.

The NBS contends that the Judge did not take into account the “falsity” of the Power of Attorney, the numerous errors in it, and Arjoon’s not sending it to the NBS 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.

Arjoon’s lawyer, however, has outrightly rejected the NBS’ contentions, and is strongly arguing that there is no evidence that his client committed any misconduct to warrant his dismissal. Following the lengthy High Court trial, Justice Reynolds, in relying on case law authorities, had found that NBS did not provide substantial evidence to prove that Arjoon had committed gross or serious misconduct which warranted his dismissal. As such, the Judge had held that it was unfair for Arjoon to be dismissed when the NBS had no system 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.

Arjoon was fired from his position in connection with a Magistrate’s Court matter wherein he, former NBS Operations Manager Kent Vincent, and former 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 issue with the withdrawal was that it was made through a Power of Attorney, and the company had implicated Arjoon for misconduct. It was reported that Arjoon said he was set up on the fraud allegations because he had refused to approve a loan a $2B loan which was applied for in 2006.