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ESD 2 of 2002

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					TRINIDAD AND TOBAGO
ESD No. 2 of 2002


                             IN THE INDUSTRIAL COURT
                                (Essential Services Division)


                                           Between

  THE ASSOCIATION OF TECHNICAL, ADMINISTRATIVE AND SUPERVISORY
                   STAFF OF CARONI (1975 LIMITED
                             (Party No. 1)

                                                and

                THE NORTH WEST REGIONAL HEALTH AUTHORITY
                                (Party No. 2)

Coram:
     H.H. Mr. Cecil O. Bernard              -              Chairman
     H.H. Mr. V. E. Ashby                   -              Member


Appearances:
     Mr. S. Jairam, S.C. }
     Mr. D.Ali           }                  -              for Party No. 1
     Mr. D. Punwasee     }

       Mr. E. Koylass
       Attorney at Law                      -              for Party No. 2


                                    JUDGMENT

Dated: April 14, 2005

                            Delivered by: H.H. Mr. Cecil Bernard

Mr. Gulabchand Maharaj (the Worker) was, by letter dated the 16th of June, 1998, appointed by
the North West Regional Health Authority (the Authority) to the position of Director of Finance.
                                                  2

In the course of his employment, the title of his position was changed first to Finance Manager,
and ultimately to Vice President Finance. The Worker was dismissed by the Authority by way
of letter dated the 14th of September 2001, his dismissal taking effect from the said date.


Pursuant to section 51(i) (c) of the Industrial Relations Act, Chapter 88:01, the Association of
Technical, Administrative and Supervisory Staff of Caroni (1975) Limited (the Union) reported
the dismissal of the Worker to the Minister of Labour and pursuant to the Minister’s certificate of
unresolved dispute the matter was referred to the Court on March 5, 2002.


Hearing into the matter commenced on July 10, 2002 and through a series of adjournments,
mainly to accommodate the convenience of attorneys, concluding arguments were not heard until
December 17, 2004 when judgment was reserved. The case took a long time – not so much
because of its complexity but largely because of the scrupulously detailed chronicling by both
sides of the political nuances and undercurrents in which this straightforward case of dismissal of
a worker by an employer was enmeshed.


Although the Union alleged that the dismissal of the Worker was motivated by “political
expediency” inter alia, there was no specific allegation of political victimization and
accordingly, unless there is an unavoidable need to make reference to the political climate in
which the facts of this case unfolded, we propose not to highlight it, treating it as a mere red
herring, unhelpful to a fair disposition of the matter.


The North West Regional Health Authority was created by the Regional Health Authorities Act
1994, and its policy-making body was a Board of Directors appointed by the President pursuant
to the Second Schedule to that Act.


The Authority’s management included a Chief Executive Officer, a Cost and Budget Analyst and
a Property Manager, among others. The Worker, as Vice President Finance was, to all intents
and purposes, a member of the Authority’s management structure with responsibility for its
finances.
                                                 3

The salient facts are not disputed, although different emphases, interpretations and values are put
on them by the contending parties. We consider that there is no risk in using the statement of
evidence and arguments of the Union as the basis for setting out the facts as follows:


       The Worker is a qualified accountant, a member of the Society of Management
       Accountants of Ontario and a member of the Institute of Chartered Accountants of
       Trinidad and Tobago with a great deal of experience in financial matters, having
       served at Caroni Limited for some 20 years reaching the position of Financial
       Controller there before joining the Authority.

       The Worker’s role was to manage the finance function giving him responsibility for
              implementation of the Authority’s financial policies and coordination of action
              necessary to achieve compliance;
              ensuring the monitoring and control of the financial resources of the Authority
              and the submission of regular reports to the Chief Executive Officer/Board of
              Directors;
              maintenance of appropriate internal control measures;
              maintenance of adequate records to ensure preparation of monthly and annual
              financial statements and related reports as required by the Chief Executive
              Officer/Board of Directors
              co-ordination of the preparation of the annual budget for approval and
              submission to the relevant ministries of Government;
              establishment and maintenance of an adequate budgetary control system;
              ensuring compliance with all statutory reporting requirements; and
              implementation of systems and procedures for the timely payment of wages and
              salaries and for the discharge of other liabilities of the Authority.


Prior to April 2000 there was a separate regional health authority for the Central Area, the
Central Regional Health Authority. In April 2000 some, if not most, of the operations of that
authority were transferred to the Authority so that it fell to the Worker to streamline the resulting
finance department with a view to achieving greater efficiency and effectiveness.
The most important aspects of the case, and the contention of the Union are recorded in
paragraphs 7 to 32 of the Union’s statement of evidence and arguments. These paragraphs read
as follows:


       “7.      During the second week of November 2000 the worker was invited to a
                                     4


      meeting at the office of the Chief Operating Officer, Dr. Ranjit Sookdar. In
      attendance at that meeting were Dr. Sookdar, Property Manager, Mr.
      Reynold Makhan and Chief Executive Officer, Mr. Ramesh Sharma. At
      that meeting the worker was told that should there be a change of
      Government following General Election to be held on December 11, 2000,
      Messrs. Sharma, Sookdar, and Makhan would not continue employment at
      the NWRHA. The worker was requested to calculate amounts due to each
      of these officials on the basis of termination clauses included in their
      contracts. The worker responded that payment would be made, provided
      that proper documentation and authorisation was provided. Copies of
      employment contracts were subsequently provided to the worker (Exhibit
      E).

8.    Within a few days thereafter the worker completed the required
      calculations (Exhibit F) and they were reviewed by Mr. Sharma. Over the
      next two (2) weeks the worker had further meetings with these three (3)
      officials. It was decided by the said three (3) officials and relayed to the
      worker that all accrued benefits would be paid as soon as possible. Mr.
      Sharma instructed that cheques be prepared for these payments. The
      required cheques were dated November 29 and December 4, 2000 (Exhibit
      G and H respectively) and signed by Mr. Sharma and the worker.
      However, as regards terminal payments amounting to $1,635,840 the
      worker reiterated that proper authorisation in the form of copies of letters
      of resignation, acknowledged and signed by the Chairman must be
      submitted to the worker before any payment could be made. The worker
      was assured that proper authorisation would be provided. The worker
      subsequently inquired of Dr. Sookdar when such authorization would be
      provided to him but got no response. The worker also reminded Mr.
      Sharma of the requirement that the necessary authorization be provided.
      In the interim the worker met with the three (3) officials on diverse
      occasions. At one of the said meetings Mr. Makhan produced a copy of a
      letter of resignation dated June 26, 2000 (Exhibit I) and accepted by Mr.
      Sharma. The purported resignation was to take effect from December 31,
      2000. Nevertheless the worker reiterated that all letters of resignation must
      be submitted before any payment could be made.

9.    The worker's original calculations with respect to the terminal benefits,
      included deduction of taxes in accordance with Section 99 of the Income
      Tax Act Chap. 75:01. However, the CEO Mr. Ramesh Sharma deleted the
      tax deductions on the grounds that the letters of engagement in respect of
      the 3 officials required the NWRHA to bear all taxes. His instructions were
      that the same would apply to the remaining calculations.

10.   On or about December 8, 2000 at about 3:00 p.m., the worker spoke with
      Mr. Sharma by telephone (from Mr. Sharma's office), who enquired if the
      transfer of funds for the terminal benefits had been made. The worker
                                     5


      reported to him that since the required authorisation had not been
      provided he could not make any payment. Mr. Sharma made no response
      to the worker. At approximately 4.45 p.m. on the same afternoon while the
      worker was driving home Mr. Sharma called him on his cellular phone and
      in a very stern voice told the worker that he should pray that the PNM
      would win the election on Monday (December11, 2000) because should the
      UNC be returned as the Government the worker would not have another
      opportunity to disobey an instruction from him (Mr. Sharma).

11.   On or about the morning of December 14, 2000 the worker received a
      telephone call wherein he was asked to attend upon Dr. Sookdar's office at
      1.00 p.m. On the worker's arrival at the said office, Dr. Sookdar presented
      the worker with a letter dated December 13, 2000 (Exhibit J) signed by Mr.
      Sharma, who also joined the meeting at that point. The said letter advised
      that, with immediate effect, the worker was to be reassigned to the post of
      Financial Adviser (a demotion) in the office of the Chief Executive Officer.
      His new office was to be located at Jerningham Place (a physical transfer as
      well). Also, in due course he would cease to be a signatory to the
      Authority's bank accounts. At the meeting, accommodation and the
      provision of support staff was discussed. Dr. Sookdar advised the worker
      that an office would be provided. The worker raised at that meeting the
      possibility that this reassignment was an attempt to sideline him. It
      appeared to the worker that Mr. Sharma was visibly upset by this
      reference and pointed out that as a senior executive the worker needed to
      understand the role and authority of the CEO. Finally, it was agreed
      (under protest) that on December 15, 2000 the worker would clear his
      office at Mount Hope with a view to reporting to Port of Spain on
      December 18, 2000.

12.   On or about December 15, 2000 at approximately 3.00 p.m., while the
      worker was handing over to Mr. Leo Chin Choy as required, Ms. Kumarie
      T. Benny, Payroll Supervisor, visited the worker's office and advised him
      that Mr. Sharma had instructed her to prepare a cheque which the worker
      was required to sign. The worker noted that the cheque drawn in the
      amount of $1,635,840, was payable to Republic Bank Limited, was dated
      December 15, 2000 (Exhibit K) and was accompanied by a voucher signed
      by Ms. Benny which provided instructions to the bank to transfer certain
      sums to the accounts of Messrs. Sharma, Sookdar, and Makhan. The
      worker discussed the transaction briefly with Ms. Benny and then, on the
      basis of the rebuke from Mr. Sharma on the 14th December when he told
      the worker that he needed to understand the role and authority of the
      CEO, signed as second signatory on the cheque. Ms. Benny then left the
      worker's office with the cheque and voucher.

13.   At about 6.00 p.m. on December 15, 2000 the worker attended a Christmas
      Party at the Authority's Offices at Jerningham Place. He was met at the
                                     6


      gate by Mr. Sharma who expressed his disappointment that funds in the
      Authority's "Salaries Account" were insufficient to cover the cheque that
      had been signed by the worker as second signatory. The worker explained
      that funds had been used to pay suppliers but that there was a sum of $2m,
      which was held separately at the Tunapuna branch of the Authority's bank
      and could be used, if necessary.

14.   The worker presented himself at the Authority's Offices at Jerningham
      Place from December 18 to December 22, 2000. No office, secretary or
      other resource were provided for him. Accordingly, he protested this
      situation to Dr. Sookdar who was acting as CEO from December 20, 2000.
      Eventually Dr. Sookdar advised the worker to return to his office at Mount
      Hope as there was no available office at Jerningham Place. In the
      meantime, by memorandum dated 19th December, 2000 (Exhibit L) Mr.
      Sharma had already advised all Executive Managers and other
      Departmental Heads that the worker had been appointed to the portfolio of
      Financial Adviser in the Office of the CEO. The worker proceeded on leave
      over the period December 25, 2000 to January 1, 2001. During his leave the
      worker did not communicate with anyone in relation to this matter.

15.   Having had time to ponder over the entire matter during his vacation, the
      worker decided on January 3, 2001 to and did contact the then Chairman,
      Dr. Tim Gopeesingh, and had a meeting with him from 2.45 p.m. to 4.15
      p.m. At that meeting the worker related the foregoing to him. The
      Chairman expressed extreme shock and disappointment to the worker that
      his three (3) most trusted officials of the Authority had taken advantage of
      certain provisions of their employment contract without conferring with
      him beforehand. He also expressed his disappointment in the worker not
      coming to him earlier and advised the worker that urgent arrangements
      should be made for each recipient to repay the sum received by him.

16.   The Chairman invited the worker to a meeting at his office at 1.30 p.m. on
      January 4, 2001 where the worker first met with Dr. Gopeesingh and Dr.
      George Laquis. At that meeting the matters raised by the worker in his
      earlier meeting with the Chairman were reviewed. Later that afternoon the
      worker attended a joint meeting with Dr. Gopeesingh, Dr. Laquis, Dr.
      Sookdar, and Mr. Makhan. At that meeting it was confirmed that
      repayments had already been made by Dr. Sookdar and Mr. Makhan and
      the Chairman voiced his findings and his views. He gave instructions as to
      future financial operations of the Authority. In addition, he gave certain
      directions and in particular, he charged the worker with the responsibility
      of ensuring that all documents relevant to the aforementioned matters were
      properly secured.

17.   On May 10, 2001 at about 11.00 a.m. while the worker was at his office at
      Mount Hope the worker received a visit from members of the Board, Mr.
                                     7


      Miguel Bermudez and Mr. Stephen Cobham. Mr. Cobham presented a
      letter to the worker, which was signed by Deputy Chairman, Dr.
      Mohammed Aziz, and which instructed him to proceed immediately on
      vacation leave for one month, with full pay (Exhibit M). The letter gave no
      reason for that course of action. However, Mr. Cobham explained to the
      worker that certain audit investigations were to be undertaken and that the
      Auditor-General had requested that certain persons be sent on leave. In
      shame and/or embarrassment the worker collected his personal effects,
      locked the office and handed the keys to Mr. Cobham and left. By letter
      dated June 7, 2001 (Exhibit N) from Ms. Wendy A. Ali, Secretary to the
      Board, the worker was advised that the period of vacation leave had been
      extended to June 30, 2001. The reason given for the extension was to
      facilitate completion of the ongoing investigation.

18.   The worker returned to work on July 2, 2001 and at about 9.30 a.m. he
      received instructions via a telephone call to attend a meeting with the
      Minister of Health at Port of Spain. The worker was joined at the Ministry
      of Health by Mr. Ramesh Sharma and Dr. Ranjit Sookdar. The then
      Minister of Health, Dr. Hamza Rafeeq, met jointly with the worker and
      these other officers of the NWRHA and informed them that while in office
      they were not to engage in any major activity. All significant matters were
      to be referred to him. On July 4, 2001 the worker was invited to attend a
      meeting with the then newly appointed Chairman of the Board, Mr. Robin
      Maraj ("the Chairman"), in the Conference Room at the Jerningham Place
      offices of the NWRHA. On arrival, he was met by Mr. Sharma and Dr.
      Sookdar. The Chairman presented the 3 men with a letter each, referring
      to "a report" of the Auditor-General and requesting a written response to
      the several matters raised therein. In addition, the Chairman advised the 3
      men that the Board had decided that each of them be suspended from office
      pending further deliberations on the report. The Chairman further advised
      the men that if they should require any document to prepare their
      respective responses a request should be forwarded to him for his attention.

19.   By letter dated July 9, 2001 (Exhibit 0) the worker wrote to the Chairman
      requesting that he should point out the specific paragraphs in the Auditor-
      General's report to which the worker was expected to reply. By letter dated
      July 12, 2001 (Exhibit P) he again wrote to the Chairman requesting copies
      of certain documents. The Chairman responded by letter dated July 14,
      2001 (Exhibit Q) advising of the paragraphs in the report to which the
      worker should respond and provided a copy of the management letter
      prepared by the Auditor-General. By letter dated July 20, 2001 (Exhibit R)
      the Chairman forwarded copies of the requested documents and advised
      that a response was expected no later than July 27, 2001. The worker's
      response was delivered to the offices of the Authority at Jerningham Place
      on July 27, 2001 under cover of a letter dated July 27, 2001 (Exhibit S).
                                       8


20.     By letter dated August 20, 2001 (Exhibit T), delivered to the worker's
        residence on August 21, 2001 at 3.00 p.m., the Chairman advised the
        worker of 14 alleged acts of serious misconduct and/or breach of duty
        committed by the worker and invited the worker to a meeting at the Hotel
        Normandie on August 24, 2001. The meeting was chaired by the Chairman
        and included Board members, Mr. Dave Cowie, Mr. Sooknath Lakhan, Dr.
        Zulaika Ali and Mr. Martin Scott, a Director of Personnel Management
        Services Limited (PMSL) and was attended by the worker and his
        Attorneys-at-Law. At that meeting the worker repeated the answers given
        under cover of his letter dated July 27, 2001.

21.     In answer to questions and request for explanations made in the
        Chairman's letter of July 14, 2001 and in the meeting of August 20, 2001
        the worker provided, inter alia, the following answers and/or explanations
        to wit:-
(i)     The matters set out in paragraphs 7 to 16 (inclusive) herein.
(ii)    Statutory deductions were not made from the earnings of Dr. Khushee
        Sharma, based on repeated instructions given by Mr. Sharma directly to
        the Salaries Supervisor. The Salaries Supervisor noted on Dr. Sharma's
        payroll card that she had received such as (sic) instruction (Exhibit U).

(iii)   According to information available from the Finance Department, Dr.
        Khushee Sharma was initially appointed as a Primary Care Dentist.
        Overtime was calculated on the basis that she was equivalent to a
        Registrar, since her basic salary (of $10,000 per month) exceeded that of a
        House Officer. Overtime was therefore calculated using normal terms for a
        Registrar. These terms are as follows: a guaranteed sum of $1,341.60 for
        the first 20 hours; all extra hours worked, payable at $67.08 per hour. The
        overtime calculated therefore exceeded the amount claimed by Dr. Sharma,
        by $44,361.12, as her claim was made as a House Officer. These were all
        approved by her Head of Department.

(iv)    Hours of work for all doctors who work at the hospital, are determined by
        a roster, which is prepared in advance. For all overtime hours, a special
        claim form is completed by each doctor. This claim is approved by the
        Head of Department and then finally authorised by the Medical Chief of
        Staff. Provided that the claims are properly approved, the Finance
        Department calculates the overtime payment in accordance with the
        approved hours. The Finance Department must of necessity depend on the
        approvals provided at the hospital. In the case of Dr. Sharma calculations
        were consistent with the approved hours. The initial overtime claims for
        Dr. Sharma were passed directly by Mr. Sharma to Ms. Benny and in fact
        based on protests made by her the worker had to request Mr. Sharma to
        arrange for submission of the relevant rosters.

  (v) Arrangements to pay tax-free sums to Messrs. Sharma, Sookdar and
                                   9


    Makhan originated from a decision of the Board in or around September,
    1999 (Exhibit V). This decision significantly influenced directives provided
    to the Finance Department for continued non-deduction of taxes. The
    worker discussed this matter with Mr. Sharma on November 24, 1999 and
    explaining (sic) that under the laws of Trinidad & Tobago the amounts
    being paid were subject to tax. However, this was to no avail. The
    discussion with him was held after the worker had obtained guidance from
    an official of the Board of Inland Revenue whom he had called on
    November 23, 1999 regarding the distinction between an employee and a
    private consultant/contractor.

(vi) The payment totaling $211,063.98 was made after discussions and
     agreement between the CEO, Mr. Ramesh Sharma, Dr. Sookdar and
     Property Manager, Mr. Reynold Makhan and instructions to the worker by
     Mr. Sharma in or about the third week of November 2000. It represented
     benefits accrued up to November 30, 2000 and comprises amounts paid as
     follows:

    Ramesh Sharma      $69,706.94
    Dr. Ranjit Sookdar $61,480.83
    Reynold Makhan     $79,876.71
    Total             $211,064.48

    The original calculations with respect to these payments included deduction
    of taxes in accordance with Section 99 of the Income Tax Act. However,
    Mr. Sharma deleted the tax deduction on the grounds that the letters of
    engagement in respect of the 3 officials required the Authority to bear all
    taxes. It should be pointed out that these benefits would have been available
    to the officials at some point whether or not they had resigned.

(vii) The payment of $42,056.14 to the worker represented benefits accrued up
      to November, 2000. The payment was approved by Mr. Sharma. It
      comprised the following:
      Vacation leave buyout (net of tax)           $11,860.28
      Accrued performance allowance
            (net of tax)                             4,777.50
            Arrears from salary increase            10,000.00
            Unused sick leave buyout (net of tax)  15,418.36
            Total                                 $42,056.14

    In particular, the arrears of salary arose from approval of a salary increase
    by Mr. Sharma following a letter dated November 9, 2000 written to him
    by the worker (Exhibit W). It is to be noted that the worker's reporting
    relationship, according to the organization structure is to the CEO. The
    cheque by which this payment was made, was signed by Mr. Sharma and
    the worker. This signified Mr. Sharma's overall approval of the
                                    10


     transaction. In addition, at the time of signing of the cheque the original
     working paper calculation was presented to Mr. Sharma; a copy is attached
     (Exhibit X)

     The Union says that it was extremely difficult for the worker to obtain
     vacation due to the demands of the job. In particular, immediately after the
     merger with the CRHA it was impossible to obtain vacation. There was
     precedent for buyout of leave as this had been done with the approval of
     the then Acting Chief Executive Officer of the Authority, Dr. Ranjit
     Sookdar, in relation to the worker in March 2000 (Exhibit Y). Also since no
     sick leave had been taken by the worker since joining the Authority Mr.
     Sharma agreed to allow a buyout. However, despite Mr. Sharma's
     approval, events occurring between December 13 and 19, 2000 caused the
     worker to reflect on the legitimacy of the payment to himself and became
     uncomfortable with it on the basis that it may be perceived as an
     inducement to him to facilitate payment of terminal benefits to the 3
     officers aforementioned totalling $1,635,840. The worker therefore gave
     instructions for refund of the amount to Scotiabank, Couva, on January 4,
     2001. A copy of the voucher received from the bank is attached (Exhibit Z).

(viii) At commencement of employment by the Management Accountant, Mr.
       Leo Chin Choy, in April, 2000 the worker advised the Salaries Supervisor
       not to make any statutory deduction pending receipt of a signed contract by
       the Finance Department, since at that time no decision had been made as to
       whether he would be hired as a private consultant or as an employee. This
       was therefore a temporary measure. However, there were delays in the
       preparation of the contract at the office of the CEO. The worker was
       unaware that non-deduction was continued. It is to be noted that the
       Salaries Supervisor reports directly to the Management Accountant.

(ix) As regards the former Authority, verbal instructions were given to the
     worker by the then Chairman, Dr. Tim Gopeesingh, to delay payment of
     PAYE and Health Surcharge deductions for approximately two (2) months.
     This followed the refusal of the Ministry of Health to provide funding to
     meet arrears due to employees. The Authority took the position that this
     was a liability of the Ministry of Health. Based on his own experience with
     a State-owned enterprise the worker did not think that this was an
     unreasonable request. Special requests for funding these arrears had been
     made by the worker to the Permanent Secretary, Ministry of Health, on at
     least two occasions as follows:
     Letter dated August 24,1999, reference FM72/99
     (Exhibit AA)
     -Letter dated September 22,1999, reference FM86/99
     (Exhibit BB)

     No funding was forthcoming. Further, the component of unremitted PAYE
                                        11


          and Health Surcharge in respect of the former Authority arose from
          instructions referred to in the preceding item. With respect to the Eric
          Williams Medical Sciences Complex (EWMSC), the Authority inherited a
          large liability at the time of the merger with the Central Regional Health
          Authority (CRHA). This included significant amounts of statutory
          liabilities. Due to the very weak financial position of the EWMSC it was not
          possible to discharge this liability in a timely manner.

      (x) A Fixed Assets Register for the former Authority was established by the
          worker in the latter part of 1999. This required an extensive physical
          verification exercise throughout all the institutions and facilities of the
          Authority. It was decided that by September 2000 another physical
          verification would be performed and in conjunction with the records of
          acquisitions, the Register would be updated. However, by April 2000 the
          merger with the former CRHA had taken place and the worker was
          required to establish a Register for the CRHA as one could not be located.
          The very limited resources made available to the worker were then shifted
          to that exercise and it was not possible to update the existing Register by
          September 30, 2000.

 (xi) Section 2 of the Standing Financial Instructions (SFIs) (Exhibit CC)
      requires the Board of Directors to establish an Audit Committee which
      was to be responsible for overseeing the audit function. In fact Clause 2.1.3
      requires the Audit Committee to be involved in the selection process for the
      internal audit service. In accordance with Clause 2.3.4 the Internal Auditor
      is required to report directly to the Chairman, Audit Committee. A new
      Organisation structure was approved by the Board of Directors in the year
      2000. In accordance with that structure the Internal Auditor was to report
      to the Board Audit Committee which in turn was to report directly to the
      Board. Only following approval of the new structure, was a directive
      provided to the worker with regard to establishment of an internal audit
      function. At the request of the CEO the worker prepared an advertisement
      for the post of Internal Auditor. Only one of the applications received was
      short-listed. The applicant was interviewed by the CEO and the worker but
      found to be unsuitable. In the circumstances it was impossible for the
      Finance Manager to set up the audit function without the sanction of the
      Board.
          The verbatim notes of the meeting convened by the Authority was (sic)
          supplied to the worker under cover of a letter dated August 27, 2001
          under the hand of the Chairman (Exhibit DD).

22.       At or about the 3:30 p.m. on September 14, 2001 the worker received a
          telephone call from the then Chairman of the Board, Mr. Robin Maraj,
          who informed the worker that he had obtained the Board's approval to
          offer the worker an opportunity to resign from his post with the Authority
          which would permit the worker to seek alternative employment without the
                                           12


            stigma of dismissal. The worker was given 10 minutes to consider whether
            he wished to accept "this offer". The worker telephoned the then Chairman
            later that day and was informed by the Chairman that he had spoken with
            both the then Prime Minister and Minister of Health, both of whom agreed
            that the worker should only be given the opportunity to resign. The worker
            immediately prepared a statement in relation to both these conversations
            (Exhibit EE).

23.         Thereafter, by letter dated September 14, 2001 (Exhibit FF) from        the
            then Chairman the worker was informed by the Authority that, having
            considered the written and oral responses given by him to the Chairman's
            letter of July 14, 2001 and at the meeting of August 20, 2001, his services
            with the Authority were terminated with immediate effect on the ground of
            purported serious act of misconduct documented therein.

      24.   By letter dated September 17, 2001 (Exhibit GG) from the worker's
            Attorney-at-Law, the worker complained of his termination by the
            Authority's (sic) as being harsh, oppressive and/or not in keeping with the
            principles and practises (sic) of good industrial relations. In the said letter
            the worker propounded his position that the charges/allegations against
            him whether taken individually or collectively could not justify his
            dismissal having regard to the very strong mitigating circumstances in his
            favour. The worker therefore sought to meet and discuss the content of the
            Authority's letter of September 14, 2001. By letter dated September 18,
            2001 (Exhibit HH) from the then Chairman to the worker's Attorney-at-
            Law, the Authority rejected the worker's request for a meeting on the basis
            that "no meaningful purpose can be served by further deliberations on
            [the] matter as [the Authority's] decision as stated in [its] letter [to the
            worker] of September 14, 2001". By the said letter the Chairman
            undertook to provide the worker's Attorney-at-Law with a copy of the
            report prepared by PMSL. By letter dated October 4, 2001 (Exhibit II) the
            worker's Attorney-at-Law reminded the Chairman of his undertaking to
            provide the worker with a copy of the report prepared by PMSL and
            requested that the same be made available "with utmost haste".

      25.   On or about October 8, 2001 the Authority provided the worker with a
            copy of a report entitled "REPORT BY PMSL ON THE
            INVESTIGATION INTO THE MATTERS ARISING FROM THE
            AUDITOR GENERAL'S REPORT INTO THE NWRHA". At pages 17 to
            19 of the said report (Exhibit JJ) PMSL purported to make findings of fact
            in respect of certain allegations contained in the Auditor General's Report
            and in relation to the worker recommended that "subject to consideration
            by the Authority of the mitigating circumstances below, that Mr. Maharaj
            [the worker] be dismissed on the grounds of the following acts of
            misconduct and/or breach of duty."
                                    13


26.   The decision to terminate the worker's services in the circumstances
      outlined herein were (sic) totally without reason and unconscionable. The
      decision itself was unjust, unfair, harsh and oppressive and not in
      conformity with the principles and practices of good industrial relations.
      Further, the consequences of the decision to terminate the worker are
      extremely grave and could lead and have in fact lead (sic) to penury,
      serious destitution and a major lowering of or annulment of aspirations for
      his children's education.

27.   Apart from the normal difficulty of securing suitable alternative
      employment, the worker is likely to be seriously prejudiced by the wide
      spread negative media coverage surrounding the Auditor General's
      Report; the subsequent suspension of the worker and several other
      persons; and the subsequent investigation and report of PMSL, all of which
      suggest that the worker has been involved in corruption and dishonesty.
      Consequently, it is very likely that suitable potential employers will be
      reluctant to employ the worker as they would believe the various reports in
      the newspapers and other media.

28.   Contrary to standard auditing practice, the Auditor General (Acting) in
      carrying out her "audit" of the Authority did not request the worker's
      presence nor any explanation from the worker. Further, during the course
      of the said "audit" the worker knowing that he should have been present
      and/or consulted with regard to any alleged or apparent discrepancy or
      discrepancies telephoned and spoke with the Auditor General (Acting) but
      was advised by the Auditor General (Acting) that it was simply a "financial
      audit" and therefore she did not require his presence or any input from
      him. In fact, despite the assurance of the Auditor General (Acting) when
      she did produce her report on the Authority (which was laid in Parliament,
      distributed to the whole of the Cabinet, the Police Service and in particular
      the Fraud Squad, several ministers below Cabinet rank including the
      Junior Minister of Health, etc.) it contained extremely damning allegations
      and/or innuendos touching and concerning the worker's professional
      character, reputation, integrity and conduct, which had all been
      unblemished prior thereto.

29.   Having regard to the extensive (negative) media coverage given to
      the said Auditor General's report including publication of allegations of
      corruption or dishonesty and the like by the media (on which the Union
      proposes to rely at the hearing of this dispute) the worker's employment
      prospects were and are considerably diminished and/or damaged. In fact,
      immediately after his purported dismissal the worker applied for about 7
      vacant posts which had been advertised and for which he was fully
      qualified both by reason of his professional qualifications and by
      experience but for which he has never received a single acknowledgement,
      let alone a favourable response. The Union proposes to rely on all these
                                              14


              written applications and will produce copies thereof at the hearing of this
              dispute.
       30.    At all material times the worker in discharge of his public duty and
              professional obligations co-operated fully with the police in their
              investigations into the alleged discrepancies highlighted by the Auditor
              General (Acting). In fact, the worker had attended at the Fraud Squad
              office at Henry Street on at least 5 occasions where he spent several hours
              with the police, giving them detailed written statement(s) concerning their
              inquiries into the alleged discrepancies. Further, the worker has spent at
              least 3 full afternoons testifying on behalf of the State in the Magistrates
              Court on the hearing of the Preliminary Inquiries of Indictable charges
              being brought by the State against certain former officials of the Authority.
              Further, the worker has never been charged with any offence regarding the
              alleged discrepancies at the Authority either arising out of the Auditor
              General's report or out of the police investigations.

       31.    As a result of the dismissal complained of herein which was effected
              in the public glare the worker became extremely traumatised, depressed,
              ill, nervous, etc. In fact, at the time of the worker's purported dismissal his
              older son, Nilesh, had just entered the University of the West Indies to read
              for an undergraduate degree in chemical engineering, but because of the
              adverse publicity wanted to "drop out" and had to be counseled (sic) by the
              worker and his spouse. His other son who is at Presentation College, San
              Fernando had just entered Form 5 (being his final year for his CXC) and
              he too was traumatized and had to be counselled by his parents.

       32.    The Union will contend that there was no or no justifiable basis
              either at law or in industrial relations practices and/or principles to
              terminate the worker's services but that the Authority, motivated by
              political expediency or ill will and/or bad faith terminated the worker's
              services in circumstances that were and are exceedingly harsh and
              oppressive or not in accordance with the principles of good industrial
              relations practices. The Union will also contend that exemplary damages
              ought to be awarded in this case either in accordance with the principles
              laid down in Rookes v. Bernard [1Q641 AC 112Q HL or in accordance with
              the principles of the Act and in particular section 10 thereof. The Union
              will also ask for stigma damages, having regard to the facts and
              circumstances of this case.”

For completeness and balance we reproduce hereunder paragraphs 6 to 16 of the statement of
evidence and arguments filed on behalf of the Authority:



       “6.    At all material times Mr. Ramesh Sharma was the Chief Executive Officer of
              the Employer, Dr. Ranjit Sookdar was engaged as the Cost and Budget
                                     15


      Analyst/PAU Co-ordinator/Secretary to the Board of the Employer and Mr.
      Reynold Makhan was engaged as the Property Manager of the Employer.

7.    In the discharge of her duties and responsibilities Statutorily identified in
      Section 116(2) of the Constitution of Trinidad and Tobago and Section 9(1)
      and (2) of Act 69:01 and in accordance with Section 25(4) of the Exchequer
      and Audit Act the Auditor General conducted an audit on the state of
      internal controls of the Employer. Areas selected were inter alia staff
      recruitment, payroll and purchase of assets.

8.    Consequent on the performance of the audit aforesaid a report entitled "a
      special report of the Auditor General of the Republic of Trinidad and
      Tobago on an audit into certain areas of internal controls at the North West
      Regional Health Authority (NWRHA)” was prepared and came into
      existence {hereinafter called “the A.G. Special Report}.

9.    The A.G. Special Report identified multiple serious wrongful occurrences
      injurious and damaging to the financial wellbeing of the Employer including
      and involving acts/omissions by the Worker in the manner of his purported
      performance of the duties of his position.

10.   By reason of the seriousness of the findings and apparent wrong doings
      reported on in the said A.G. Special Report the Employer determined that
      investigations/further investigations were warranted to be conducted into the
      matters so as to determine their accuracy or otherwise and so inform its
      decision on its independent findings as to the allegations contained in the said
      report.

11.   The Employer further determined that in the meanwhile while investigations
      were continued that the Worker be suspended without loss of benefits and
      entitlements whereof the Worker was so notified by letter dated the 04th July
      2001.
      [Copy of the said letter hereto annexed as appendix "E'}.

12.   By the said correspondence aforesaid the Worker was invited to respond in
      writing to the several pertinent matters contained in the A.G's Special
      Report and further by letter dated 14th July 2001 specific paragraphs of the
      said report requiring the Worker's response were identified. Yet further the
      Worker was advised by the said latter letter that personal (sic) Management
      Services Limited was retained to assist the Employer's Board of Directors in
      its considerations of the matters reported on by the Auditor General.
      [copy of letter hereto annexed as appendix 'F"}.

13.   The Worker under cover of letter dated the 27th July 2001 provided his
      written response as invited by the Employer.
      [copy of letter hereto annexed as appendix "G “}.
                                                    16



       14.     The Employer gave careful and studied consideration to the Worker's said
               response to the several matters and considered that the said response
               confirmed the Worker's involvement/complicity in issuing cheques to C.E.O.
               Mr. Ramesh Sharma, Cost and Budget Analyst/PAU Co-
               Ordinator/Secretary to the Board of the Employer Dr. Ranjit Sookdar and
               Property Manager of the Employer Mr. Reynold Makhan in the sum of One
               Million Six Hundred and Thirty Five Thousand Eight Hundred and Forty
               Dollars ($1,635,840.00), himself for Forty Two Thousand and Fifty Six
               dollars and Fourteen Cents ($42,056.14) and Ms. Kushee Sharma in
               questionable circumstances so as to raise the issue of serious misconduct
               and/or breach of duty, acknowledged and confessed to knowingly acting in
               breach of the Income Tax Act and generally identified what yet appeared to
               be serious shortcomings in the way of the Worker's proper discharge of his
               duties and the Employer by letter dated August 20th 2001 brought to the
               Worker's notice Particulars of his alleged misconduct/breach of duty and
               invited the Worker's response at a meeting scheduled as identified (24th
               August 2001) in the said letter to be heard thereon.
               [copy of said letter hereto annexed as appendix "H'}.

       15.     On the 10th September 2001 the Employer received a report from
               Professional Management Services Limited.
               (The Employer shall refer to and use the A.G's Special Report and/or the
               Worker's response aforesaid and/or Professional Management Services
               Report at the hearing of this matter as the Honourable Court permits and
               copies of such documents will be provided).

       16.     By Notice of Termination dated the 14th September 2001 the Employer
               terminated the Worker's services and employment with it with immediate
               effect on the several grounds of misconduct (1-11) stated therein.
               Individually and cumulatively the grounds reflect serious misconduct/breach
               of duty by the Worker such that the Employer has lost all trust and
               confidence in him and in his ability to faithfully discharge the duties of his
               office to the benefit of the Employer and to properly and professionally
               discharge his duties at all.”

The Worker testified on behalf of the Union. His testimony amounted to a virtual admission of
the allegations made by the Authority with a plea by him to avoid the consequences of those
allegations by a claim that he was induced to do what he did through the application of
irresistible pressure from his superior officers.


The evidence of the Worker is the evidence in our view, of a basically honest and truthful
witness whose testimony we believe. It is that evidence itself, however that, if anything, justifies
                                                 17

the Authority’s decision to dismiss him.       He testified that he was a certified management
accountant, a member of the Society of Management Accountants of Ontario, a member of the
Institute of Chartered Accountants of Trinidad and Tobago and in practice as an accountant since
1991.


In his position at the Authority he reported directly to the Chief Executive Officer, Mr. Ramesh
Sharma and, on occasion, was required to take instructions from Dr. Ranjit Sookdar the Cost and
Budget Analyst. The Worker said that he was never given a job description.


On May 10, 2001, the Worker became aware that the Auditor General was conducting an inquiry
into the financial affairs of the Authority when, at his office, he was handed a letter directing him
to proceed on paid vacation leave. He inquired of the two Board members who had presented
him with the letter the reason for his being sent on leave and was informed that the Auditor
General was conducting an audit and had requested that certain officers, including him, be away
from the workplace during the conduct of the audit.


The Worker said that he proceeded on leave as directed, initially for one month but eventually
extended until June 30, 2001. He returned to work on July 2, 2001 and was invited to a meeting
at the office of the Minister of Health where he met the Chief Executive Officer, Mr. Sharma and
Dr. Sookdar, both of whom had also been summoned to the meeting. The Minister of Health
there gave instructions that all major transactions should be referred to his office.
On July 4, 2001, together with Messrs. Sharma and Sookdar, the Worker met with the then
newly-appointed Chairman, Mr. Robin Maraj who informed them that the Board had decided to
suspend them from duty pending further deliberations. At the meeting, the Worker and the two
other senior officers were each presented a copy of the report by the Auditor General and
requested to respond in writing to certain parts of the report. The Worker said that he wrote
inquiring to which specific parts of the report he should respond and was told by the Chairman to
respond to the entire report. However, he eventually received a letter from the Chairman in
which certain paragraphs of the report were specified as for response. In compliance, the
Worker said, he responded in writing by July 27, 2001.
                                              18

By writing dated August 20, 2001, the Authority requested the Worker to attend a meeting at
which he was to be given an opportunity to elaborate on his written response to the Auditor
General’s report which, the Worker said, contained a number of allegations of acts of serious
misconduct against him.


On August 20, 2001, the Worker received an invitation to attend a meeting to be held at the
Normandie Hotel on August 24, 2001. He said that he attended the meeting which was chaired
by Mr. Robin Maraj, the Chairman and attended by three other directors of the Authority and a
representative of Personnel Management Services Limited (PMSL).              The Worker was
represented at that meeting by his attorney, Mr. Jairam. Verbatim notes were taken at the
meeting and he was provided with a copy of those notes, which accurately reflected what he said
at the meeting, the Worker said.


The Worker said that to his knowledge, PMSL had been appointed to examine the Auditor
General’s report and to report thereon. The Worker was directed to the Authority’s letter to him
dated August 20, 2001, which set out the alleged acts of misconduct against him.


The letter read as follows:


       “Dear Mr. Maharaj,

       We refer to the Auditor General's report dated June 2001, to the Authority's letter
       dated July 4th, 2001 inviting your comments on the Auditor General's report, to the
       Authority's letter dated July 14, 2001 specifying particular sections of the report for
       response by you, to the documentation supplied to you at your request and to your
       detailed response sent by you with covering letter dated July 27th 2001.

       After a careful examination of your response it appears to the Authority that you
       have committed the following acts of serious misconduct and/or breach of duty.

       A.      I.   Signed a cheque dated December 15, 2000 drawn on the salaries
               account in favour of Ramesh Sharma, Ranjit Sookdar
                    and Reynold Makhan for $1,635,840.00 for terminal benefits on the
                    basis of calculations prepared by you, in the absence of proper
                    supporting documentation and/or authority.

               2.    Signed the cheque on the basis of calculations prepared
                                        19


               without making deductions of tax in accordance with the
               provisions of Section 99 of the Income Tax Act.

      3.       Signed the cheque referred to at 1 above knowing that       there were
               insufficient funds in the salaries account to cover the amount of the
               cheque.

B.    1.       Signed cheques for payment of Salary, overtime and Allowances to
               Kushee Sharma without deductions of tax as required by the provisions
               of Section 99 of the Income Tax Act.
          2.   Signed cheques for payment of Overtime Allowances to Kushee Sharma
               which were not calculated in accordance with the terms of her contract
               of employment, in that the payments were not based on hours worked
               and were therefore excessive.
          3.   Signed cheques and/or implemented payments of allowances to Ramesh
               Sharma, Ranjit Sookdar and Reynold Makhan of $6,500.00 per month
               without deductions of Tax contrary to Section 99 of the Income Tax
               Act.
          4.   Signed cheques and/or implemented payments to the three officers
               named in 3 above, totaling (sic) $211,063.98 without deductions of tax,
               contrary to the provisions of Section 99 of the Income Tax Act and
               which purported to represent buyouts in part of sick and vacation leave
               for which there was no provision in their contracts of employment.


          5.   Signed a cheque in the sum of $42,056.14 which was for your personal
               benefit and which included in part a buyout of sick and vacation leave
               for which there was no provision in your contract of employment.
          6.   Signed cheques and/or implemented payment of salary to the
               Management Accountant without deduction of Tax for the period 2000,
               contrary to the provisions of Section 99 of the Income Tax Act.
          7.   Failed to submit PAYE and Health Surcharge
               remittances in a timely manner as required by relevant    legislation.

C.   1.        Failed to produce timely or any financial statements to the Board and
               Management of the Authority as required by Section 3.4.1. of the SFIs
               requiring financial reports to be sent monthly to the Board and Budget
               Holders.
     2.        Failed to maintain an up to date register of Fixed Assets of the
               Authority.
     3.        Failed to comply with section 2.2.1 of the SFIs which requires the
               Director of Finance to establish an internal audit function within the
               Authority.
                                                20


       D.    1.      Without proper authorization or documentation prepared and signed
                     separate cheques and/or split payments into installments (sic) designed
                     to conceal the purpose of the payments which are subsequently revealed
                     as for the purpose of purchase of an Audi vehicle number PBH 5329.

     Consistent with its duty to act fairly toward you, the Authority wishes to provide you
     with an opportunity to respond to the apparent acts of misconduct. For this purpose
     you are invited to attend a meeting on August 24, 2001 at the Hotel Normandie’s
     Boardroom at 10:30 a.m. The meeting will be chaired by the undersigned, who will
     have with him Mr. Dave Cowie, Mr. Sooknath Lakhan and Dr. Zulaika Ali along with
     Mr. Martin Scott, a Director of Personnel Management Services Limited who have
     been retained by the Authority as advisors.

     At that meeting the Authority will be looking forward to any further explanation or
     statements you may wish to make, directed at the matters identified above.

      Yours faithfully,
      Northwest Regional Health Authority
      Sgd. Robin Maraj
      Chairman”
In response to Mr. Jairam in examination-in-chief the Worker said that at the meeting at the
Normandie Hotel he responded to the first allegation at length. At the hearing he repeated that
explanation. He said that there was a meeting at Dr. Sookdar’s office some time in November
2000 to which he was invited. Present at that meeting were Dr. Sookdar, Mr. Sharma and Mr.
Makhan, the Property Manager of the Authority. These senior managers informed him that
should a certain political party lose the national election due to be held shortly thereafter, they
would not continue in the employ of the Authority. They therefore asked him to calculate all
amounts that would in those circumstances become payable to each of them in accordance with
their contracts. The Worker claimed that he pointed out to the officers that payment of any such
sum would be dependent on appropriate authorization.


The Worker said that he received copies of the contract of employment of each of the three
senior managers and did the calculation of their terminal benefits on the basis of their entitlement
under their contracts. There were many meetings among the senior managers and the Worker in
the course of which he was instructed by the Chief Executive Officer, Mr. Sharma, to make
certain changes to his calculations and to prepare cheques in favour of the senior managers for
terminal benefits accruing up to November 13, 2000. The cheques, the preparation of which was
                                                21

closely monitored by Mr. Sharma, amounted to one million, six hundred and thirty five thousand,
eight hundred and forty dollars ($1,635,840) in total.


The Worker testified that Mr. Sharma instructed him to make arrangements to transfer to the
account of each of the three managers the amount calculated as being his entitlement. To this
the Worker said he responded that he was not going to prepare any request for transfer of the
sums in question unless he was presented with letters of resignation, acknowledged and signed
by the Chairman, Dr. Gopeesingh. The senior managers undertook to produce appropriate letters
but despite repeated requests to them he received no such letters up to December 8, 2000. (At
one stage the Worker was shown a letter signed by Mr. Makhan in which he indicated to Mr.
Sharma that he intended to resign with effect from December 30, 2000).
The Worker testified that on December 8 he reminded both Mr. Sharma and Dr. Sookdar that he
would not disburse any terminal benefits to them without seeing their letters of resignation. At
about 3:00 p.m. on that day, the Worker said, he contacted Mr. Sharma on the telephone but
before he could say anything, Mr. Sharma inquired whether he had transferred the money, to
which the Worker replied that he had not, since he had not received the letters of resignation. At
that stage, the Worker said, Mr. Sharma grumbled “OK.” Later, at about 4:45 p.m. while he was
driving home, Mr. Sharma called him on his “cell phone” and in a very stern voice told him that
he should pray that a certain party won the elections on December 11, 2000 because if that party
did not win he, the Worker, would never have the opportunity to disobey an instruction from
him, Mr. Sharma, again.


The elections were held on December 11, 2000 and, according to the Worker, he did not hear
from Mr. Sharma between that date and December 14, 2000. On December 14, 2000 Dr.
Sookdar called him by phone requesting that he attend an urgent meeting at Dr. Sookdar’s office.
The Worker said that he attended that meeting at 1:00 p.m. and he was handed a letter by Dr.
Sookdar, the contents instructing him that with immediate effect he was transferred from the
position of Senior Vice President, Finance to the post of Financial Adviser in the office of the
Chief Executive Officer. While the Worker was in Dr. Sookdar’s office, Mr. Sharma arrived. A
job description of the new post was produced to the Worker although no such post existed on the
Authority’s establishment, the Worker said.      He regarded his transfer as a demotion:       his
                                              22

authority to sign cheques was curtailed and his office was transferred from the Authority’s head
office at Mt. Hope to Jerningham Place, Belmont. The Worker raised with the senior managers a
number of issues concerning his transfer but took up the position at Jerningham Place under
protest. He testified that when he asked whether it was an attempt to side-line him, Mr. Sharma
answered that as an executive manager he needed to understand the role and authority of the
Chief Executive Officer.


The Worker claimed that his subsequent stay at the Authority was a traumatic experience for him
as the Chief Executive Officer turned viciously against him. He was instructed to hand over his
portfolio to one Mr. Chin Choy, his subordinate twice removed, whose assumption of the
position of Head of Finance was promulgated by Mr. Sharma to all other departmental heads in a
memorandum dated December 19, 2000.


Meanwhile, the Worker said, he did not prepare the cheques he had been instructed to prepare.
However, a cheque was prepared by one Ms. Kumarie Benny, the Salary Supervisor, who at
about 3:00 p.m. on December 15, 2000 entered his office with the cheque and accompanying
instructions to the Bank for the transfer of certain sums from one account to another. The
Worker said that Ms. Benny advised him that she had been instructed by Mr. Sharma to prepare
the cheque and to relay to the Worker Mr. Sharma’s instruction that he, the Worker, sign the
cheque.


Under the influence of the earlier rebuke from Mr. Sharma and the traumatic pressure under
which he was labouring, the Worker said, he signed the cheque. Two signatures were required to
validate the cheque. When he affixed his signature to it, there was no other signature on the
cheque.


It appears that from December 18 – 20, 2000, the Worker remained at Jerningham Place. With
the Christmas season intervening, he returned to work on January 2, 2001 but because there was
no accommodation for him at Jerningham Place and after numerous complaints to Dr. Sookdar,
who was then acting as Chief Executive Officer, he was advised to return to Mr. Hope and try to
                                              23

find an office there. His office having by that time been taken over by Mr. Chin Choy, the
Worker squatted in a corner of the Purchasing Office.


The Worker said that while he was on vacation over the Christmas period he decided that he had
to do something about the cheque. On January 3, 2001, he sought audience with the Chairman,
Dr. Gopeesingh on condition that there would be no witnesses. At about 3:45 p.m. on that day
he met with the Chairman and informed him of the events leading up to the signing of the cheque
for one million, six hundred and thirty-five thousand, eight hundred and forty dollars
($1,635,840).


According to the Worker, Dr. Gopeesingh expressed surprise at and disappointment with his
three most trusted officials for having taken advantage of clauses in their contracts without
conferring with him. The Worker testified that Dr. Gopeesingh pointed out that it was necessary
to put arrangements in place to have all monies that had been disbursed returned to the
Authority. In response to Dr. Gopeesingh’s inquiry as to why he had not reported the mater
earlier, the Worker said he told Dr. Gopeesingh that he felt unsure as to whom he could trust in
the Authority.


On the following day, at the request of Dr. Gopeesingh, the Worker attended another meeting at
which, together with himself and Dr. Gopeesingh was Dr. George Laquis, (whose presence at the
meeting was unexplained since he had no official connection with the Authority). At that
meeting the Worker repeated what he had already told Dr. Gopeesingh and, according to the
Worker, he was asked to attend another meeting later that day with Dr. Gopeesingh, Mr.
Makhan, Dr. Sookdar and Dr. Laquis.


The Worker said that he attended that meeting which was held at the office of Dr. Gopeesingh.
The situation was reviewed and it was confirmed that the two senior managers present had
returned the money, whereupon Dr. Gopeesingh issued instructions to the Worker as to future
control of the Authority’s finances and as to the security of all documents relating to the
transaction in the sum of one million, six hundred and thirty-five thousand, eight hundred and
forty dollars ($1,635,840).
                                               24



That was the evidence of the Worker as to the explanation he offered to the meeting at the Hotel
Normandie in relation to the first allegation against him, i.e., that he “signed a cheque dated
December 15, 2000 drawn on the salaries account in favour of Ramesh Sharma, Ranjit Sookdar
and Reynold Makhan for $1,635,840 for terminal benefits on the basis of calculations prepared
by (him) in the absence of proper supporting documentation and/or authority.”


The Worker testified that he also offered explanations for the other allegations against him. He
gave details to the court as to those explanations. He testified that on September 14, 2001 at
about 3:30 p.m., the new Chairman, Mr. Robin Maraj called him on the telephone, told him that
he was at a meeting of the Board of the Authority, that he had the authority of the Board to offer
the Worker the option of resigning his position with the Authority and that the Worker had ten
minutes in which to make up his mind, as he, the Chairman, had to advise the Board of the
Worker’s decision. The Worker said that he told the Chairman that in all the circumstances he
considered the option unsatisfactory and declined the option to resign. The Chairman then told
him that the letter of dismissal would be issued to him, the Worker said. Later that day the
Worker and the Chairman again spoke. The Worker claimed that the Chairman told him that
notwithstanding that the PMSL Report had pointed to mitigating circumstances surrounding the
Worker’s case, the hands of the Chairman were tied, he, having spoken to both the Prime
Minister and the Minister of Health, being unable to offer the Worker anything but the option to
resign.


The Worker said that the dismissal letter was issued on September 14, 2001 and that on receiving
it he sought legal advice and his attorney attempted to arrange a meeting with the Authority to
discuss the letter. Such a meeting was never held because the Authority responded that no useful
purpose could be served by such meeting.


According to the Worker, wide publicity was given to his dismissal resulting in trauma, anxiety,
tension, shame and embarrassment to himself and his family. He said that he responded to
numerous advertisements for accounting and financial professionals but because of the publicity
surrounding his dismissal he was unsuccessful in obtaining employment until February 2002.
                                               25



The Worker was cross-examined.        He readily admitted that he had failed in his duty to the
Authority both as employee and as professional accountant. He admitted that the reports in the
media concerning his involvement in the preparation and payment of cheques were true.


The recognition by the Worker of the seriousness of his obligation to the Authority and of his
failure to live up to that obligation was highlighted in the exchanges between himself and
Attorney for the Authority, the most telling aspects of which we reproduce hereunder. We
recorded the Worker as having said:


       In the interview for my position it was indicated that the Authority was looking for
       a particular type of person and that they required an Accountant, a certified
       Accountant. I understood it was an Authority which received money from the
       Government. I understood that all positions from Chief Executive Officer (C.E.O.)
       down were employees of the Authority. I appreciated that the C.E.O. was not the
       owner of the Authority. I appreciated that in having the position which I occupied I
       was there to secure the Authority’s finances, and to protect its finances from
       plunder by outside forces and by inside forces – to protect it from plunder by senior
       officials including the C.E.O.

       I understood that I was put in a position to protect funds of the Government paid
       into the Authority. I understood that in seeking to protect those funds I was seeking
       to protect the funds of the taxpayer; protecting public funds.

       It was clear in my mind that the C.E.O. was not like a private C.E.O. – owner but
       was an employee employed to perform functions. I appreciated that if funds
       provided to the Authority were plundered there was less to provide the true object
       of the Authority. I appreciated that as protector of the Authority’s funds it was
       important to the holder of that office to have the experience of an Accountant and to
       have the experience I had of being a financial controller with experience in audit
       functions. That would have informed me as to the proper disbursement of funds. It
       is by a proper procedure for disbursement of funds that the money of the Authority
       could be protected from plunder.

       I was in a position to appreciate how fraud is committed against the Authority. The
       position requires intelligence, professionalism, integrity, independent-mindedness
       and strength of personality. These are qualities the holder of the position would
       have to bring to properly discharge his functions.

       The requirement of a letter of resignation for disbursement of money was not a
       stupid or unreasonable requirement. My professional judgment directed me that it
                                      26


was a prudent course before disbursement of funds, based on my years of
experience as an Accountant. It is elementary that if you are paying for terminal
benefits you need letters showing end of service. It was not a foolish requirement on
my part for the Chairman to approve the termination. I was not being
unreasonable to make that request. My experience and professional judgment
directed me that that was a sensible requirement. In a nutshell, all of my experience
as an Accountant dictated to me that my professional judgment required letters of
resignation and authorization by the Chairman. That is what an Accountant
requires. That is what an independent-minded professional would have required.
That’s what an independent mind would have required.

It would be correct to say that when I signed the cheque for $1.6 million without
getting those approvals I threw away all professional judgment. I said a
professional is a person of independent mind. I would have thrown that away. I
would have ignored what I described as an elementary requirement in signing that
cheque. When I signed that cheque I discarded the obligation to protect the
Authority’s funds. When I signed that cheque I released my guard against the
obligation to protect public funds. We are talking about a significant amount of
money. When I signed that cheque I was doing something wrongfully sought of me.

As an Accountant I am not to follow wrongful directions. It would be a wrongful
directive that would require the character of the Accountant to surface so as not to
follow it. When I signed that cheque I appreciated it was a wrongful instruction and
that it was wrongful of me to sign it. Signing of that cheque was wrongful in every
way that my professionalism indicated. It was wrongful in every way in regard to
my position in the Authority. The independent-mindedness of my position was
rendered zero. Independent-mindedness is a pre-requisite of a person holding that
position. I did not display the fundamental quality of a person holding the position I
held. It fell to the ground.

I appreciate that the finest qualities of my profession would be tested in adverse
situations rather than in non-adverse situations and that I must exhibit those
qualities in trying circumstances. These were trying circumstances… . I did not
fail completely in that regard. I did not consider saving my job more important
than saving $1.6 million for the Authority. I would consider securing the
Authority’s funds more important than a demotion in my job. When I signed that
cheque it could be said that I was more concerned with protecting my demoted
position. I would have been required to protect the Authority’s finances.

One (in my position) must be aware that pressure could be brought on one to do
wrong and an independent-minded accountant would choose loss of employment
rather than permit money to be improperly paid out. When I chose to sign that
cheque I opted not to act as a financial controller would have been required to. It
would be accurate to say that when the cheque was presented to me by Mrs. Benny I
observed how the distribution would occur; so when I signed the cheque I was
carrying out the instructions as to how the disbursement was to be made. I knew it
                                              27


       was to go into accounts of persons I had decided were not authorized, without
       proper documentation. In signing that cheque I was putting my seal of approval. I
       was signing the cheque to secure what was wrongfully approved by the C.E.O.

       I was given a copy of the Auditor General’s report. It would be accurate to say
       there was a buy-out of sick and vacation leave in favour of Messrs. Sookdar,
       Makhan and Sharma in the sum of over $200,000. That was an accurate statement.
       There was no Board approval for the buy-out. Concerning the buy-out of gratuity
       there was no Board approval. The cheques were signed by Mr. Sharma and myself.
       The buy-out was effected as at 30 November 2000. It would be accurate to say that
       the Auditor General identified another officer as being paid over $40,000. There
       was no Board approval. The terms of appointment of that officer did not provide
       for a buy out. That officer was me. The cheque was signed by the C.E.O., Mr.
       Sharma, and myself. There were 3 signatories to the account. It could have been
       signed by another person. That was not done. As an Accountant I did not think it
       should be signed by another person. I had the C.E.O’s approval.

       The C.E.O. wasn’t “carrying on” at that time. At that point there was no
       antagonism. It was at arm’s length; good business relations.

       I am getting a buy-out in circumstances that don’t provide for it. I am signing
       cheques. Mr. Sharma is getting a buy-out with no approval and I am signing the
       cheque. Mr. Sharma is also signing it. All the top officials are getting buy-out.
       Everything was at arm’s length. That was happening in November. In November
       while that is happening they say we want to pay terminal benefits too. The C.E.O.
       was the man approving my buy-out. Having approved my buy-out the C.E.O. was
       not asking for favours in return, not then – later, yes, the Worker said.

       The Worker agreed with a suggestion by Mr. Koylass that the Authority put him in
       a position to have foresight but that he had acted with hindsight. The Worker said
       that he expected the senior managers to resign since they said they would resign if a
       certain party won the elections. That party did not win so they were not resigning.
       He added, ‘at the time I signed cheques that party had already lost the elections –
       the fundamental basis did not occur, the fellows were not resigning. I signed the
       cheque. I paid the $1.6 million when they were not terminating their employment.
       That was not the act of a professional Accountant. It was not in accordance with the
       standard set for Accountants in the business. In relation to the position I held it was
       not consistent with the duties I owed to the Authority. Having signed this cheque
       for $1.6 million I never reported it to the Police.’


The Worker admitted that under the Authority’s Standing Financial Instructions there was a
provision requiring him to report such occurrences to the Police if he became aware of them. ‘I
didn’t know who to trust. Nothing prevented me going to the Police. In circumstances of
                                                 28


not knowing who to trust the Instructions pointed me in the direction of the Police. By that
time, in my mind, I felt this was wrong, wrong, wrong’ the Worker said.


The Worker testified that when he went to Dr. Gopeesingh, Dr. Gopeesingh told him that
everybody must put back the money they had received. He said that he told Dr. Gopeesingh that
he would put back what he had received. The Worker said that he arrived at the conclusion that
he should speak with Dr. Gopeesingh some time between December 25, 2000 and January 1,
2001. Having arrived at that decision he proceeded to put the money back on January 5, 2001. It
was put to the Worker that it was at the insistence of Dr. Gopeesingh that recipients were
required to put back the money, the Worker said that Dr. Gopeesingh said so in the case of the
other three senior managers but that he himself volunteered to return what he had received.

The Worker testified that before going to Dr. Gopeesingh he realized that all the buy-outs were
wrongful payments. He agreed with Attorney for the Authority that he had forewarning from
Mr. Sharma and Dr. Sookdar that no letter of resignation would be forthcoming.


The Worker admitted that the account on which the cheque for $1.6 million was drawn was in
debit at the time the cheque was prepared and that he had drawn attention to the existence of
another account which was in credit to the tune of over $2 million from which sums could be
transferred to facilitate clearance of the cheque.


The Worker admitted that his making a report to Dr. Gopeesingh had much to do with the
manner in which he had been treated by the C.E.O. – the reduction in his status, the loss of his
office at Mr. Hope, the hurt at seeing someone else occupying his office – which irked him.
In making a number of admissions as to the inappropriateness of what he had done, the Worker
said he was operating under the threat of the C.E.O. and the fear that the C.E.O. was able to
make that threat a reality. The Worker admitted that the Authority gave him every opportunity
to explain his actions. He admitted that the Authority had identified to him the specific areas of
the Auditor General’s report to which he was required to respond and that the Authority had
never done anything to deprive him of the opportunity to give an account; nor had the Authority
misled him in any way as to the matters on which an explanation was sought. He admitted that
                                                29

after his written response he was given a further opportunity to “oralize” his response and that at
the meeting at the Normandie Hotel he was given full opportunity to say whatever he wished
about the complaints against him. “It would be accurate to say I was given fullest opportunity to
be heard concerning the matter,” he said.

The Worker said that he was legally represented by Senior Counsel at the meeting at the
Normandie Hotel and that he did not consider any of the members of the panel to be biased.

The Worker’s understanding of his responsibilities as professional accountant and as employee
of the Authority emerged from the following which he said in the course of his evidence:

              “Concerning my ethical responsibility as an Accountant I owed a duty to my
              profession. That duty was to act according to proper standards of
              professional behaviour. As part of my Code as an Accountant, as an
              employed Accountant, my duties to my profession were more onerous than if
              I was in a lower position. The more senior the position occupied, the more
              onerous the responsibility. So, having regard to my high position I was in a
              position to influence events, so my responsibility was greater.

               It is correct that my Code would alert me to the fact that I must maintain
               objectivity in every aspect of my work. In my position that would have been
               a prerequisite. My Code would have directed me as to the standard of
               integrity and that my integrity was to be maintained despite being
               employed… . My Code required that I was not to be involved in any
               dishonest transaction. No directive from an employer to engage in a
               dishonest transaction is an order that I should follow. My Code gives me
               standards of conduct as an employed person. The Code identifies that
               loyalty to an employer does not involve doing wrongful business. It is correct
               to say the Code deals with inducements…. . The Code directs me to reject
               hospitality as an inducement of wrong-doing.

               The Code also deals with cases of conflict between me and my employer. The
               Code directs that where there is a conflict between me and a superior I must
               seek direction from the person higher, that is, the Board. It would be correct
               to say that the Code says that after exhausting all levels if the conflict still
               exists the only option I have is to resign… . In fact when confronted with the
               possibility of losing my job I chose to protect it and sign the cheque.

               … At the Normandie meeting it was specifically enquired of me as to whether
               as an Accountant I appreciated I was doing something unethical. It would be
               correct to say that my conduct was measured in conformity with my position
               at the Authority and the standard expected of me as a qualified Accountant.
                                               30



               I appreciated from what was asked of me at the Normandie meeting that the
               Authority was concerned about my breach of duty as an Accountant and a
               senior employee of the Authority.”


The Worker was again asked about the authority for the payment to the officials of the buy-out.
He explained that as far as he remembered, there was provision in their contracts of employment
for the buy-out of sick and vacation leave.


The Worker explained that his failure to transfer sums deducted as PAYE was due to the need to
retain those funds for the survival of the Authority. He denied that he had failed to maintain the
fixed assets register, explaining that the staff levels in the Accounting Department subsequent to
the merger of the North West with the Central Regional Health Authority were too low to
properly accomplish an up-to-date record of the assets of the Authority.


According to the Worker, he was required to set up an internal audit system but that was not
done. He explained that such a system was one means of checking whether persons in the
system were engaged in wrong-doing. He said that nobody, including the C.E.O., was above
scrutiny from an internal audit, and that an internal audit function would have picked up the fact
that he had signed a cheque for over $1.6 million without proper documentation.


The Worker said that he had brought up the matter of setting up an internal audit system within
six months of his joining the Authority but that he could not set it up on his own as it would
amount to a structural change needing Board approval.


Under further cross-examination the Worker made a number of admissions of failure in his duty
to the Authority. In re-examination, the Worker said that Mr. Sharma, the C.E.O., was very
“self-opinionated,” very demanding, very domineering, was not open to discussion on a range of
issues. His style, the Worker said, was “if you didn’t follow instructions you would pay the
consequences.” The Worker felt that his removal from his original position was in consequence
of the style of the C.E.O.
                                               31



Ms. Angenet Venus the Authority’s acting Human Resources Officer testified on behalf of the
Authority. She traced the history of the institution and gave an account of the duties of the
Worker and the staff assigned to his department for the performance of those duties. She said
that the Worker never made any request for additional staff to assist in setting up a fixed assets
register for the Authority.


In cross-examination the witness admitted that she had no accounting or financial qualifications
and that her background was in Human Resources in which she was on the verge of completing
an Associate Degree.


Ms. Venus was cross-examined on a list of persons who comprised the post-merger Financial
Department of the Authority and explained which among them were considered senior and
which junior. She admitted that the list could be inaccurate because of the absence of one name
from it. (Another list was prepared at the direction of the Court and differed from the original
list in terms of numbers).


The cross-examination of Ms. Venus put under a microscope the setting up and maintenance of a
fixed assets register, areas in which she confessed a lack of competence.


Mr. Robin Maraj testified under subpoena as the next witness for the Authority. He was the
Chairman of the Authority from July 2001 and first met the Worker at a meeting of the Board at
which both Mr. Sharma and Dr. Sookdar were present. By that time he was aware of the report
of the Auditor General and had issued a letter to the Worker seeking his response to allegations
in that report.


Mr. Maraj said that while the Worker was suspended there was no intention to cause him
embarrassment.     It would have been impossible to investigate the allegations while those
allegedly involved continued to be at work, he said. Mr. Maraj said that the Worker, in response
to the Board’s letter, sought clarification as to which aspects of the Auditor General’s report he
                                               32

was to address. The Board responded in writing, indicating to the Worker the paragraphs in the
Auditor General’s report which implicated him.


Having received a response from the Worker the Authority referred the matter to PMSL for
advice as to what steps it should take. The witness said he recalled writing to the Worker
identifying to him the specific acts of misconduct that were alleged against him and inviting the
Worker to a meeting at the Normandie Hotel on August 24, 2001. That meeting took place.
The Authority’s team was himself, Mr. Lakhan, the Chairman of the Finance Committee; Mr.
Dave Cowie a Board member; and Dr. Ali, the Authority’s Deputy Chairman, together with Mr.
Martin Scott, a Director of PMSL.


Mr. Maraj said that the purpose of that meeting was to facilitate the Worker in explaining to the
Board the reasons behind the acts identified in the Auditor General’s report. Up to that time, Mr.
Maraj said, the Authority had come to no conclusion as to what was to happen to the Worker.
The meeting, he said, was not in the nature of a sham by the Authority.


The witness testified that Mr. Lakhan, a professional Accountant, asked questions of the Worker
about how the financial affairs of the Authority were run. There was a concern expressed about
the Worker’s professional conduct and the Board generally felt that the Worker had not behaved
as a professional Accountant should. Mr. Maraj said that the Worker spoke passionately about
his accomplishments at the Authority and said that “the acts of misconduct,” a term he attributed
to the Worker, resulted from excessive pressure placed on him by Management.


Mr. Maraj testified that the Board members pointed out to the Worker that he, as a professional
Accountant could have left, that he could have obtained other employment, to which the Worker
responded to the effect that his professional integrity had been compromised. In relation to many
of the specific issues raised at the meeting, the Worker admitted that he knew what he was doing
was not right but pleaded excess pressure from superior authority in defence of his actions, Mr.
Maraj said.   It was the view of the Board, he said, that while the Worker was a professional
Accountant, he did not have the mettle to carry through on his duty.
                                               33

The Board did not meet to consider what was to happen until it received the PMSL report. Mr.
Maraj could not recall the date on which the Board met to consider what should be done to the
Worker but at that meeting it was decided that the Worker should be dismissed. Mr. Maraj said
that the Board looked at other penalties. However, on the question of the signing of the cheque
for over $1.6 million, they felt that for a Chief Financial Officer doing so, there could be no
punishment other than dismissal.


Mr. Maraj recalled that prior to the letter of dismissal being issued to the Worker, he contacted
the Worker by telephone. Having spoken to a number of employees of the Authority who had
worked with the Worker, Mr. Maraj said that everyone with whom he spoke, spoke positively
about the Worker. Having listened to the Worker at the meeting at the Normandie Hotel, he
believed that the Worker was under a tremendous amount of pressure, Mr. Maraj told the Court.
As Chairman, he said, he took the initiative and asked the members of the Board to consider
asking the Worker to resign as opposed to terminating his employment by dismissal. The Board
members agreed and on the basis of their agreement he made the telephone call to the Worker.
Before doing so, however, he informed the Minister of Health of the Board’s proposal with
which the Minister was in agreement.


When the option was put to the Worker he told Mr. Maraj that he needed some time to consider
it. Mr. Maraj said that he informed the Worker that he was calling from a meeting of the Board
and that he needed an immediate response. The Worker undertook to return his call in a few
minutes, which he did. The Worker’s response was that he would not take up the option to
resign.


Mr. Maraj denied that he ever spoke to the Prime Minister on the matter. He denied that there
was any political interference in the decision taken by the Board. The decision to dismiss the
Worker, Mr. Maraj said, was taken by the Board, he being the only member who was prepared to
consider the option of resignation. He said that other members of the Board did not see as an
option the retention of the services of the Worker after what he had done at the professional
level.
                                                34

In coming to its decision, Mr. Maraj said, the Board took into account the position of the Worker
and his family, his long period of professional life both behind him and ahead of him but in the
end the Board concluded that it had no confidence in the Worker’s ability to continue. The
Board felt that to retain the Worker in the employ of the Authority would have sent a completely
wrong message to lower-level staff members in the Finance Department.


In cross-examination Mr. Maraj said that he never spoke with the Prime Minister on the
telephone. He was cross-examined in relation to each of the allegations made against the Worker
and went into lengthy explanations as to the deficiencies which the Board had found in relation
to each. He stressed that the main concern of the Board was with the first of the allegations
listed against the Worker, i.e. that he signed a cheque dated December 15, 2000 drawn on the
salaries account in favour of Ramesh Sharma, Ranjit Sookdar and Reynold Makhan for
$1,635,840 for terminal benefits on the basis of calculations prepared by him, in the absence of
proper supporting documentation and/or authority.


In relation to other allegations Mr. Maraj conceded that the fault was not solely attributable to
the Worker and expressed the view that the allegations contained in points 2 to 11 in the PMSL
report were not sufficient to warrant dismissal of the Worker. It was the view of the Board,
however, that the allegation made in point 1 was so serious that, standing by itself, it merited
dismissal on proof of guilt.


Mr. Maraj did not deny that the Worker had been subjected to pressure by the C.E.O. and other
top managers who, knowing the personality of the Worker, took advantage of his weakness to
their benefit.


Mr. Maraj agreed with a suggestion from Attorney for the Worker that had the managers in fact
resigned they would have been entitled to be paid the money under their contracts of
employment. He agreed that the matter was constantly discussed in the media. He denied that
any political pressure had been applied to the Board by the Minister. He denied that the Board
feared that it would be accused of discrimination if it did not dismiss the Worker.
                                                35

Mr. Maraj said that PMSL was appointed by the Minister of Finance who was featured
prominently in the media in connection with the matter. While the Minister of Finance might
have been clamouring for disciplinary action against the Worker he did not receive any directive
from the Minister, Mr. Maraj said. He admitted that on the date that PMSL was retained he had
a meeting with the Minister of Finance – the first and last meeting – as Mr. Maraj put it. He
admitted also that the Minister was in the “forefront” calling for disciplinary action against the
Worker but denied that that had any effect whatsoever on him.


Under relentless cross-examination as to whether guilt on any of the individual charges would be
sufficient to justify dismissal of the Worker, Mr. Maraj said that in the opinion of the Board,
charge 1 was sufficient to justify dismissal. He added, however, that the charges did not come to
the Board in a disaggregated fashion and the Board never had reason to disaggregate them. Mr.
Maraj said that he took into account the Worker’s explanation at the meeting at the Normandie
Hotel, hence his willingness to offer him the option of resignation.


Mr. Maraj told the Court that he felt that if the Worker was not dismissed he would have had no
moral authority to command his staff; he would have been shown to be weak in signing cheques
at a moment of crisis, acting under pressure from the C.E.O. and others, knowing that to do so
was wrong.


Mr. Koylass submitted that the Worker was acutely aware of his duty to the Authority and well
knew that what he was being asked to do by the senior managers was wrong and that in signing
the cheque for $1.6 million he was acting in breach of his obligation to the Authority.


There was no complaint, Mr. Koylass submitted, that a flawed procedure was adopted by the
Authority in investigating the charges against the Worker. The Authority had presented the
Worker with an opportunity to be heard at the meeting at the Normandie Hotel at which the
Worker was represented by senior counsel.


Mr. Koylass argued that the Board was entitled to conclude that the Worker’s act of signing the
cheque by which payment to the senior managers was effected was sufficient in itself to justify
                                                 36

the termination of the Worker’s services. The offer by the Chairman of the option of resignation
was actuated by humane consideration for the plight of the Worker, Mr. Koylass submitted.


Mr. Jairam, pointing out that the Authority had suffered no loss, argued that the Worker was
treated unjustly and that the Authority had acted toward him outside the ambit of civilized
behaviour. The Worker had been intimidated by the senior managers and had been put under
tremendous pressure from above. The Board of the Authority, in its decision to dismiss the
Worker, came under the influence of the Minister of Finance, to whose tune, according to Mr.
Jairam, the Board was jumping.


Mr. Jairam cited a number of cases in support of his submission that the dismissal of the Worker
was without justification. In written submissions bolstered by oral arguments, he contended that
the procedure adopted by the Board was unfair.


In Earl v Slater and Wheeler (Airlyne) Ltd. (1973) 1 ALL ER 145 the Court of Appeal in
England held that an employment tribunal had erred in holding that an unfair procedure which
led to no injustice was incapable of rendering unfair a dismissal which would otherwise be fair.


In that case, at the moment of dismissal the employers could not, and did not, know whether the
employee could explain the matters which had been discovered during his absence; they had
dismissed the employee for a reason which might or might not be sufficient according to whether
the employee could or could not offer an adequate explanation; thus the tribunal should have
found that the employee had been unfairly dismissed.


Mr. Jairam did not seem to see a distinction between the above-mentioned case and the instant
one. However, whatever the shortcomings of the procedure adopted by the employers in Earl v
Slater, there is no parallel between the two cases. In this case, it cannot be alleged that at the
moment the Board decided to dismiss the Worker it did not or could not know whether he had an
explanation for his actions. By that time the Board well knew what his explanation was. There
was no speculation as to what his explanation was. He had offered it fully to the meeting at the
Normandie Hotel. What the Board was doing, in full knowledge of the Worker’s explanation,
                                                 37

was rejecting it as insufficient to exculpate him. We do not see that case as being helpful to the
Worker’s cause.
Mr. Jairam cited the judgment of the Court of Appeal in Texaco Trinidad, Inc. v Oilfield
Workers’ Trade Union (1972) 20 W.I.R. 455 but that case is only helpful if the Court comes to
the conclusion that the Authority was wrong in dismissing the Worker and the Court is then
required to consider whether re-instatement of the Worker was an appropriate remedy.


We did not find helpful the case of Hill v Parsons & Co. Ltd. (1972) 1 Ch. 305 which was also
cited by Mr. Jairam. In that case, decided by the Court of Appeal in England, the employer had
agreed with a certain trade union that it should be a condition of service, for the category of staff
to which a certain employee belonged that all employees would become members of the union in
question.   Having not joined the union, the employee was threatened with termination of
employment by the employer under pressure from the union. The Court of Appeal granted an
injunction restraining the employer from carrying out the dismissal of the employee in those
circumstances.


To the extent that Mr. Jairam was inviting the Court to draw a parallel between the pressure
exerted on the employer by the union in Hill v Parsons and the pressure which was exerted on
the Worker by the C.E.O. and others in this case (or the pressure which Mr. Jairam argued was
exerted on the Board by various Ministers of Government), the fact is that there was a complete
absence of any allegation of misconduct against the employee in Hill v Parsons while in the
instant case against the Worker there was the very serious charge of misconduct in relation to the
signing of the cheque for over $1.6 million.


Another case cited by Mr. Jairam which the Court did not find helpful was Trade Dispute No.
130 of 1994 between Association of Technical, Administrative and Supervisory Staff and
Caroni (1975) Limited where this Court ordered the reinstatement of a worker who had been
dismissed without being given an opportunity to be heard before the final decision was taken to
dismiss him. As we said earlier, the Authority cannot be said to have deprived the Worker of the
opportunity to be heard. The facts in this case, therefore, being different from those in Trade
                                                38

Dispute No. 130 of 1994, cannot bring this case within the principle applied by the Court in
Trade Dispute No. 130 of 1994.


In Rookes v Barnard (1964) A.C. 1129 the House of Lords in England considered whether a
threat by a number of members of a trade union to commit a breach of contract which induced an
employer to terminate the employment of an employee was an actionable tort. The House of
Lords held inter alia, that the tort of intimidation was an established tort and comprehended not
only threats of criminal or tortious acts, but threats of breaches of contract. On the facts in that
case it was held that the defendants had indeed committed the tort of intimidation.


Mr. Jairam cited Rookes v Barnard presumably in support of his contention that there was a
threat of some sort made by some person or persons against the Board of the Authority which
induced the Authority to dismiss the Worker. On the evidence before us no such threat could be
established, no conspiracy on the part of any group of persons was pleaded or proved and no
sufficient evidence was led of a connection between any threat by anyone against any Board
member and the Board’s decision to dismiss the Worker. Rookes v Barnard does not advance
the Union’s case.


Malik and another v Bank of Credit and Commerce International, (1998) A.C. 20 was cited
by the Union. In that case the English House of Lords held that there was an implied obligation
on an employer that he would not carry on a dishonest or corrupt business and, if it could be
shown that it was reasonably foreseeable that in consequence of his corruption there was a
serious possibility that an employee’s future employment prospects would be handicapped,
damages were recoverable for any such continuing financial losses sustained and that it made no
difference if the employee only heard of the employer’s conduct after leaving the employment.
We pause only to point out that in the Bank of Credit and Commerce International case, (i)
the Bank’s very business was conducted fraudulently and for corrupt purposes, (ii) the appellants
were innocent of any wrongdoing and (iii) any post-employment stigma attaching to them did
not result from their own misconduct. In the present case the Authority’s business could not be
said to have been conducted fraudulently for a corrupt purpose nor can the self-admitted
                                                  39

misconduct of the Worker be equated with the innocence of the appellants in Bank of Credit
and Commerce International.


The Union did not cite any cases directly relevant to a plea of superior order, that is, that the act
of the Worker was done in obedience to orders from his superior. The cases we have been able
to find arose in areas other than industrial relations but the principle is stated in such general
terms that we are persuaded of its applicability in the field of industrial relations as well.


In the old Canadian case of Dame Henriette Brown v Les Cure et Marguilliers de L’Oeuvre
et Fabrique de Notre Dame de Montreal (1874 – 75) LR6 PC 157 the issue was whether a
Catholic parish in Montreal had the right to refuse religious burial in a Catholic cemetery to a
deceased member of the parish who had in his lifetime fallen foul of the church authorities.


The case reached the Privy Council which decided in favour of the estate of the deceased widow
plaintiff, the person who had brought the original action against the parish.             Sir Robert
Phillimore delivering the judgment of the P.C. said this:


       “It is, however, suggested that the denial took place, in fact by the order of the
       bishop or his vicar-general; that the Respondents are bound to obey the orders of
       their ecclesiastical superior, and, therefore, that no mandamus ought to issue
       against them. Their Lordships cannot accede to this argument. They apprehend
       that it is a general rule of law in almost every system of jurisprudence that an
       inferior officer can justify his act or omission by the order of his superior only when
       that order has been regularly issued by competent authority.”

In military law, where the defence of superior orders would have had fertile ground for
development, the plea is generally unavailing to a defendant charged with a military offence. In
the British Manual of Military Law, Part 1, it is stated at Chapter VI paragraph 23 in the version
reprinted in 1980 under the side note “superior orders” as follows:-
       “If a person who is bound to obey a duly constituted superior receives from the
       superior an order to do some act or make some omission which is manifestly illegal,
       he is under a legal duty to refuse to carry out the order and if he does carry it out he
       will be criminally responsible for what he does in doing so. It has been suggested
       that if such an order is to do an act or make an omission which is not manifestly
       illegal a person who obeys it will not incur criminal responsibility by doing so,
                                                 40


       especially if he had little opportunity to consider the order before carrying it out.
       The better view appears to be, however, that an order to do an act or make an
       omission which is illegal, even if given by a duly constituted superior whom the
       recipient is bound to obey and whether the act or omission is manifestly illegal or
       not, can never of itself excuse the recipient if he carries out the order, although it
       may give rise to a defence on other grounds, e.g. by negativing a particular intent
       which may be a complete defence or reduce the crime to one of a less serious nature
       or by excusing what appears to be culpable negligence.” (emphasis added)

In paragraph 22(b) of the same Manual of Military Law the issue of duress as a defence to a
criminal charge is discussed. The general rule is there stated to be that:


       “Duress may, depending on the whole of the circumstances, provide a defence to a
       criminal charge if the will of the accused has been overborne by threats of death or
       serious personal injury so that the commission of the alleged offence was no longer
       the voluntary act of the accused.”

The approach of the courts to the plea of superior orders in criminal cases was more recently
illustrated in the case of R v Clegg (1995) 1 ALL ER 334 where the British House of Lords, in a
case where a soldier in Northern Ireland, charged with the murder of a passenger in a stolen car
whose driver had sped through an army check point, rejected the defence, Lord Lloyd of
Berwick stating that there was no general defence of superior orders known to English law.


That case, in our view, shows that even where a soldier faced with an immediate choice of
risking his life by doing nothing (on the one hand) and firing his weapon at the risk of being
charged with murder (on the other hand), did not have available to him as a defence to his action,
taken without the benefit of time for reflection, the plea of superior orders.


The same approach to the question of superior orders is adopted in international law.          In
discussing the question of individual responsibility for international crimes Robert K. Woetzel in
The Nuremberg Trials in International Law 1962. Stevens. London, at page 118 puts it this
way:


       “Another very important argument that is cited against individual responsibility for
       international crimes and that was raised by defence counsel at Nuremberg is that a
       person cannot be punished for an act which he committed in pursuance of superior
                                                 41


       orders… . It must certainly be taken into consideration in defence of any person
       standing trial for international crimes, but under no circumstances is it to be
       regarded as an absolute justification for criminal acts, even if the accused had to act
       under pain of death.

       The military law of many civilized states contains express provisions to the effect
       that a subordinate must only obey lawful orders. The argument of respondeat
       superior may constitute a mitigating circumstance in any particular case, but only
       after it has been determined to what extent an individual could resist an illegal
       order, if he did all that was possible to resist it, or if he possibly went beyond the
       order and clearly demonstrated his intention to commit the crime for which he is
       being tried…”

The doctrine of superior orders, under which no refuge is provided for a subordinate who,
pursuant to an unlawful order of a superior, commits an infraction of law, has been shown to be
pervasive. It operates in the field of criminal law, it operates in the field of international law and
it is applied by civil courts in their interpretation of ecclesiastical law. It would be surprising if
the rule were to be differently applied in industrial relations. We are of the view that the doctrine
of respondeat superior is as inapplicable in industrial relations as it is in the other fields we have
mentioned.


In all the cases where the doctrine applied, the order which the subordinate obeyed was
legitimate. Obedience of a legitimate order of a superior will be a complete defence to a charge
of misconduct arising from such obedience. Indeed, as is more common in industrial relations,
disobedience of a lawful (legitimate) order amounts to misconduct.


We are required, because of the nature of Mr. Jairam’s submissions, to look at the matter from
two perspectives, (a) the substance of the charges, in particular the first charge against the
Worker and (b) the procedure adopted by the Board in investigating the charges and in deciding
on the punishment of the Worker.


The Worker never denied, either that he had signed the cheque, the subject matter of the first
charge, or that he recognized at all material times that what he was doing was wrong. He
admitted his misconduct but claimed that he had been pressured by his senior officers. We saw
from the cases discussed earlier that obedience to an order which was not legitimate did not
                                               42

provide a defence to a charge of misconduct. We find that the orders given to the Worker by the
C.E.O. were not legitimate orders and that in carrying them out the Worker was guilty of
misconduct.


Turning to the procedure adopted by the Board in investigating the charges against the Worker,
we find that the Worker was made fully aware at every material stage of the charges against him.
He was permitted at the meeting at the Normandie Hotel to ask questions and to make any
representation he wished. He was represented by senior counsel and no unfair advantage was
taken of him. We find therefore, that the procedure adopted by the Board in investigating the
charges was fair and reasonable.


As to the decision of the Board to dismiss the Worker we are impressed with the Board’s
concern for the future career of the Worker. It was out of this concern that the Chairman was
prepared to offer to the Worker the option of resigning. We conclude from Mr. Jairam’s written
submissions that the Union was contending that the procedure adopted in the investigation of the
charges against the Worker was vitiated by the involvement of the Minister of Finance in the
appointment of PMSL and by reason of certain statements attributed to the said Minister in the
newspapers.


In order to undermine the validity of the procedure in the manner suggested by Mr. Jairam it
would be necessary that the Union show by clear evidence a link between the alleged
involvement of the Minister in the appointment of PMSL and some perversity in the manner in
which PMSL conducted its own inquiry. There has been produced before us no evidence that
PMSL was under the influence of the Minister in some perverse way nor has it been shown that
PMSL acted perversely in the conduct of its investigation.


We do not accept the suggestion implicit in Mr. Jairam’s submissions that the Minister had
exerted undue pressure on the Board in order to bring about the dismissal of the Worker. To
conclude that the Board had been influenced by statements attributed to the Minister would be to
reject, without any basis for doing so, the clear evidence of Mr. Robin Maraj, the Chairman, that
the Board acted independently in deciding to dismiss the Worker.
                                                 43



The misconduct of the Worker was serious. As a senior officer in charge of the Authority’s
finances the Worker owed a special contractual duty of fidelity to the Authority. His actions
amounted in the circumstances to a breach of that duty sufficient to show a disregard of the
fundamental terms of the contract of employment. In the view of the Board, the Worker’s guilt
on the first charge was a sufficient ground for their loss of faith and confidence in him and for
his dismissal. We agree.


We find that the dismissal of the Worker was not effected in circumstances that were harsh and
oppressive or not in accordance with good industrial relations practice. We therefore uphold the
decision of the Authority to dismiss the Worker and we accordingly dismiss the application of
the Union.


Mr. Jairam proved himself a master of irony when he asked the Court to order costs to be paid by
the Authority. Mr. Koylass, taking the moral high ground, asked for none. We, constrained by
the strictures of section 10(2) of the Industrial Relations Act, make no order as to costs.




Our order is stayed for six weeks and we hereby grant leave to either or both sides to appeal if
they so wish.




………………………
Cecil O. Bernard
              44

…………………………
V. E. Ashby

				
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