Guyana - Legal Battle Over Wrongful Dismissal and Compensation: Arjoon vs. NBS

The Court of Appeal, in a unanimous decision, upheld a High Court ruling from five years ago that declared Arjoon's dismissal as wrongful. However, the court reduced the awarded pension amount from $59,033,281 to $18,817,432.

Acting Chancellor Yonette Cummings-Edwards, while delivering the judgment, affirmed that the trial judge was correct in awarding pension along with severance and benefits. Still, according to the Termination of Employment and Severance Pay Act (TESPA), the appellate court determined that Arjoon was entitled to $18,817,432 from the date of his employment in December 1979 to his dismissal in August 2007. This sum was based on Arjoon's contributions of over $6 million and the NBS's contributions of over $12 million.

The Court also awarded Arjoon costs amounting to $800,000, to be borne by the NBS. The NBS has been given a three-month stay on the ruling to consider whether it wishes to file any further appeal with the Caribbean Court of Justice (CCJ).

The NBS had challenged the award of $59,033,281 for pension, arguing that it couldn't be awarded alongside severance and other benefits upon an employee's termination. The court referenced TESPA and stated that Arjoon was entitled to pension only up to the date of his dismissal.

Regarding Arjoon's wrongful dismissal, the appellate court upheld the High Court's decision and emphasized that there was no evidence of wrongdoing on his part. The NBS failed to demonstrate that Arjoon was directly responsible for the questionable withdrawal that led to his dismissal. The court noted that there were checks and balances in place before the transaction reached Arjoon for approval, and it rejected the idea of making someone a scapegoat for expediency. All verification procedures of the NBS were found to have been adhered to by Arjoon throughout the process.

Additionally, while the NBS had repaid the amount withdrawn from the account in question, it had not demonstrated the impact of the loss on the Bank, as required by the Act.

Senior Counsel Edward Luckhoo, representing Arjoon, has long argued that his client was wrongfully dismissed and deserved the full award of almost $80 million in damages. In December 2017, Justice Persaud ruled that Arjoon should receive $59,033,281 for pension, which the mortgage lending institution, NBS, paid after a successful levy a month later. The total award of damages, as estimated by both sides, was $79,282,801, granted by Justice Reynolds in July 2017. However, Justice Persaud stayed the remaining $20,249,801 awarded for severance.

NBS appealed the High Court's ruling, claiming that it was erroneous to award pension alongside severance and other benefits upon an employee's termination. They argued that the $59,033,281 was not owed to Arjoon for pension, even if he was entitled to it for his service to the bank.

Luckhoo argued that the central issue was whether Arjoon had complied with the bank's regulations regarding the contested withdrawal, and there was no evidence of misconduct on his part. He maintained that Arjoon followed all the necessary regulations, and the power-of-attorney for the account holder was valid.

In its challenge to the High Court ruling, NBS contended that Arjoon, labeled as "wrongfully dismissed," was not entitled to severance pay based on his status and contracts. They also argued that pension should not be granted in conjunction with severance or any other termination-related benefit. NBS claimed that the judge did not adequately consider the relevant parts of NBS rules, the systems manual, pension rules, and Arjoon's contract.

Additionally, NBS asserted that the judge did not consider the defaults in the respondent's handling of the withdrawals from Khan's account and that the person making the withdrawals was not properly authorized, resulting in a loss of over $79 million for NBS.

Justice Reynolds had found no evidence to support NBS' claims of gross misconduct by Arjoon and noted that there were no established rules or procedures breached by him. In June 2007, Arjoon and two other managers had their services terminated after funds were found missing from Bibi Khan's account. Arjoon subsequently filed a lawsuit against NBS for wrongful dismissal.

Justice Winston Moore, the late Ombudsman, concluded that the three managers suffered a grave injustice, as there was insufficient evidence to suggest their guilt, leading to their charges being dropped.