Byron v Bank of Antigua Ltd and Eastern Caribbean Amalgamated Bank
| Jurisdiction | Antigua and Barbuda |
| Judge | Pilgrim, P. |
| Judgment Date | 30 March 2012 |
| Court | Industrial Court (Antigua) |
| Docket Number | 26 of 2010 |
| Date | 30 March 2012 |
Industrial Court
Pilgrim, P.; Crick, M.; Aymer, M.
26 of 2010
Sir Gerald A. Watt, KCN, Q.C. & Dr. David Dorsett of Watt, Dorsett & Co. Attorneys-at-Law for the Employee.
Stacy Richards-Anjo of Richards & Co. Attorneys-at-Law for the second defendant.
Industrial Law - Contract of service — Termination — Whether redundancy situation warranted employee's dismissal.
Mr. Byron's working relationship with BOA for the period October 01, 1992 to February 20, 2009
Bank of Antigua Limited (BOA or “the Bank”) is a financial institution which is authorized to conduct banking business in accordance with the provisions of the Banking Act Cap 40 of the Laws of Antigua and Barbuda. BOA's Head Office was previously located at 1000 Airport Boulevard, St. John's in Antigua and Barbuda. Its Branch Offices were located at High and Thames Streets, in St. John's and Nelson's Dockyard, English Harbour, both in Antigua and Barbuda. It is part of the Stanford Financial Group Limited. According to the evidence of Kenard Byron, the owner of Stanford Financial Group Limited is R. Allen Stanford.
Kenard Byron resides at Lower Fort Road in St. John's in Antigua and Barbuda. He commenced his employment with BOA on October 01, 1992 as its Branch Manager. He stated that he also served as a member of the Board of Directors of BOA. That appointment is described by him in paragraph 3 of his Witness Statement dated and filed in this Court on February 04, 2011 as follows:
“My employment with Bank of Antigua was negotiated with Mr. R. Allen Stanford the Chairman of the Board at the company's Group Office in Miami, and the terms of my employment are included in a letter of employment signed by the said Chairman and dated 28th August, 1992.”
That letter was admitted into evidence as “KB-1”. In accordance with that letter of employment Mr. Byron's salary was EC$200,400.00 per annum. It was paid at the rate of EC$16,700.00 per month. Mr. Byron was also entitled to be paid certain perquisites and/or benefits. They include (a) provision of a new car, (b) a housing allowance, (c) a bonus and (d) standard medical, dental and life insurance.
From the date of Mr. Byron's appointment as Bank Manager he reported to R. Allen Stanford and no one else.
– See paragraph [4] of his Witness Statement.
Mr. Byron was promoted within BOA to the position of Managing Director/Chief Executive Officer with effect from July 01, 2001 to October 17, 2004. This appointment was made in accordance with a letter to him from BOA's Human Resources Manager of the same date. His annual salary was US$105,000.00.
With effect from October 18, 2004 Mr. Byron was appointed as Deputy Chairman of BOA. This appointment was made in accordance with a Secretary's Certificate of BOA. It was signed by Mr. Byron as Secretary of BOA. This certificate was admitted as “KB-2”.
As Deputy Chairman Mr. Byron was also charged with the responsibility of working as BOA's Relief Manager in the Relief Officer's Department. He also gave evidence that as Deputy Chairman if called upon to act as Chairman he would do so. However this opportunity never arose.
Mr. Byron's promotion as Deputy Chairman of BOA did not involve him in any working relationship with any of BOA's employees. In his role as Deputy Chairman his responsibility involved that of (a) purchasing a new bank for BOA within a member state of the Organization of Eastern Caribbean States (O.E.C.S), (b) taking charge of Mr. Stanford's personal accounts, and (c) ensuring that some of BOA's customers were happy with respect to the Bank's services to them. Mr. Stanford's accounts involved his credit cards, his personal chequing accounts and his wire transfers.
As Relief Manager Mr. Byron stated that no Relief Manager's Department existed. This position was created by R. Allen Stanford for Mr. Byron. He was the sole person who worked in this Department.
It is also his testimony that there was no occasion when the Chairman required him to perform any duties in BOA as its Relief Manager. On no occasion did he work to relieve any Manager of BOA.
As Deputy Chairman his functions also included his attendance at certain social functions. This was done in order that the BOA's image would be reflected at these functions.
Mr. Byron also stated that Mr. Stanford removed him as BOA's Managing Director. In his former position he was the “overall practical boss of the bank”. As Managing Director he had full responsibility for running the BOA's business. With his removal to that of Deputy Chairman/Relief Manager, apart from the functions listed at paragraph [8] above, his responsibility was to write a weekly report to Mr. Stanford. This report included matters of the country's government, politics and its laws. Matters of the Chairman's personal banking business were also featured in that report.
Mr. Byron described for the Court what a typical day at work was for him. He stated that he would receive telephone calls from potential customers known to him. They would ask him what is the best deposit interest rate. If he knew the answer he would inform them. If he did not know the answer he would obtain that information and respond accordingly.
In his capacity as Deputy Chairman/Relief Manager, his performance was assessed by the Chairman prior to 2008. According to Mr. Byron that appraisal by R. Allen Stanford did not require Mr. Stanford to write anything down and it did not warrant a discussion between the two of them relative to his performance in the discharge of his duties. He obtained yearly bonuses which were granted to him by Mr. Stanford.
A document entitled “Stanford PMP – Employee Standard Appraisal: Overview” was presented by Mr. Byron. This document purports to be an appraisal of Mr. Byron by Mr. Juan Rodriquez for the period July 01, 2008 to December 31, 2008.
Mr. Byron testified that he did not meet with Mr. Rodriquez at all. Mr. Byron merely obtained the appraisal form from his (Mr. Byron's) own secretary. He submitted this form to Mr. Rodriquez.
It was Mr. Byron's testimony that Mr. Stanford gave him “a chance to breathe up here in a nice comfortable quarters in his (Mr. Stanford's) office”. He continued to receive his salary for the period ending February 15, 2009.
Mr. Byron in reply to Sir Gerald Watt KCN, Q.C. stated that when he commenced his employment as Deputy Chairman of BOA, Mr. Stanford did not complain about his job performance. He was not given any option of being paid for his twelve (12) years of service. According to him Mr. Stanford offered him “a particular position in his own bank, paying me with his own money”.
Mr. Byron also stated that he never received a salary as a Director of BOA. He made reference to certain documents. They are (a) a Statement of Earnings for the period ending January 31, 2006, (b) an Earnings Statement for the period ending January 31, 2009 and (c) an Earnings Statement for the period ending February 15, 2009 These were admitted as “KB-3, 3(a) and 3(b)” respectively.
Certain events which occurred in Antigua and Barbuda in February 2009 with regard to BOA are referred to at paragraphs [7] and [8] of Mr. Byron's Witness Statement. Such matters are referred to at paragraphs [57] to [68] of this judgment.
It is Mr. Byron's testimony that on Friday, February 20, 2009 Mr. Henry Hazel an official of the Eastern Caribbean Central Bank (the Central Bank) “who had been installed at Bank of Antigua, verbally and without prior notice informed me that my position with the bank had been made redundant and that I should vacate the premises immediately”.
– See paragraph 9 of his Witness Statement
According to Mr. Byron, he left BOA within the hour after handing over his office keys to the Senior Vice President of BOA. He has been paid EC$195,207.11 being his contribution to the Antigua Retirement Savings Plan.
The Eastern Caribbean Central Bank Act (Amendment of Schedule) Order, 1994 No. 35 grants to the Central Bank certain Emergency Powers which it may apply if certain circumstances arise in the banking industry of any of the member states of the O.E.C.S including Antigua and Barbuda. These Emergency Powers are defined in Part IIA of the said Amendment.
In February 2009 the Central Bank was of the opinion that customers' withdrawals of their funds from BOA warranted its intervention and control of BOA. Accordingly, the Central Bank by Notice of Intervention published in Volume XXIX of the Antigua and Barbuda Official Gazette of February 20, 2009, intervened in and assumed control of BOA on February 20, 2009 pursuant to the Emergency Powers which were granted to it in the said Amendment.
Upon the Central Bank's intervention, a new entity was created. It is called The Eastern Caribbean Amalgamated Financial Company Limited (ECAFC). This entity provided governance of BOA, supplanting its Board of Directors. It was formed within weeks of the said intervention.
The ECAFC, the forerunner of the Eastern Caribbean Amalgamated Bank (ECAB) is a grouping of certain banks which operate within the Eastern Caribbean Currency Union (ECCU) together with participation from the Government of Antigua and Barbuda. Its shareholders are the Antigua Commercial Bank Limited, the Eastern Caribbean Financial Holdings Company Limited, the National Commercial Bank (SVG) Limited, the National Bank of Dominica Limited, the St. Kitts Nevis Anguilla National Bank Limited and the Government of Antigua and Barbuda.
The ECAB was incorporated on July 16, 2009. It commenced banking business in Antigua and Barbuda on October 18, 2010, having purchased and assumed certain assets and liabilities of BOA.
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