Arlene Wyllie Claimant v Rbtt Bank Caribbean Ltd Defendant [ECSC]

• Jurisdiction: St Vincent and the Grenadines
• Judge: Bruce-Lyle, J
• Judgment Date: 22 March 2007
• Judgment citation (vLex): [2007] ECSC J0322-3
• Docket Number: HIGH COURT CIVIL CLAIM NO. 505 OF 2003
• Court: High Court (Saint Vincent)
• Date: 22 March 2007

[2007] ECSC J0322-3

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

HIGH COURT CIVIL CLAIM NO. 505 OF 2003

Between:

Arlene Wyllie

Claimant

and

Rbtt Bank Caribbean Limited

Defendant

Bruce-Lyle, J

1 This is a claim brought against the Defendant for wrongful dismissal of the Claimant by letter dated 27^th March 2003. By that letter the Claimant was informed by the Defendant that a decision had been taken to dismiss her with immediate effect.

2 The Claimant was employed with the Defendant as its Operations Officer, she having been in continuous employment in the same banking establishment from 1976. She served in various positions in the bank rising from the lowly position of typist/clerk and subsequently in various senior positions. The bank had had successive owners and had retained the services of the Claimant until her dismissal.

3 The Claimant contends that there was no expressed provision in her employment contract for notice of termination by either side. She therefore relies on an implied term that her employment would be terminable upon two years' notice as being reasonable notice in the circumstances.

4 The Defendant contends that the Claimant was rightfully and properly dismissed because she wrongfully and dishonestly personally authorized the release of the cash security on her own loan with the Defendant 31 times between the period September 2002 and February 2003 without any authority and in complete disregard for the settled policy, practice and procedure for the release of a collateral cash security on loans, as set out in one of the Defendant's circular documents known as Circular LM-10-39.

5 As a result of the above, the Defendant no longer felt that it could place any further trust and confidence in the Claimant, which is a necessary component in the banking industry and in this regard alleged that the Claimant by her conduct -

• (a) Interfered with and prejudiced the safe and proper operation of a vital part of the Defendant's policy, practice and procedure in dealing with collateral accounts;

• (b) Breached the trust upon which the Defendant had come to rely on her honesty and integrity by falsely and dishonestly and personally approving the withdrawal, knowing fully well that she did not have the right and authority to do so, by:–

  • (i) Using improper means to make withdrawals from her collateral cash account Number 7522370 in violation of the express and settled practice and procedure for doing so, as is clearly set out in the Defendant' circular LM-10-39;

  • (ii) Willfully, clandestinely and dishonestly making thirty-one withdrawals of money from the said collateral cash account;

  • (iii) Making false and inconsistent explanations for her conduct when confronted by management.

6 It is therefore very clear that the Defendant relies on misconduct by the Claimant as being in breach of the trust and confidence which the Defendant placed in her as a senioremployee. This they contended amounted to a breach of an implied term or duty imposed by her contract of employment and not any expressed term of her contract of employment.

7 Before I go any further it would be prudent to expound on what the Defendant expected of its employees and this would necessitate the analysis of the Bank's Code of Ethics for its employees.

8 It is a policy requirement of the Defendant's bank that every employee sign a Code of Ethics - Exhibited at trial as Ex. G.W. 1 - The Claimant signed this document stating as follows,

"I, Ariene Wyllie, acknowledge having received and read a copy of the Code of Ethics of the Caribbean Banking Corporation Limited, (which is the name by which the Defendant was formerly known), I understand its contents and agree to operate within the stated guidelines at all times."

This is a code that has remained unchanged for the duration of the Claimant's employment with the Defendant.

9 The Code further stipulates -

"The provisions of this Code are mandatory and full compliance is expected of all employees as a condition of employment. Further, any employee who becomes aware of a contravention of the Code, or of a grave infraction of the Employees' Rules referred to in it, is in duty bound to report the facts to his or her superior or to higher authority, or see that they are so reported."

10 Again, the Code contains three key sections -

• (1) What Employees have a right to expect of the bank;

• (2) What the Bank has a right to expect of its employees; and

• (3) What the public has a right to expect of the Bank and its employees.

11 In answer to the above three questions the Code of Ethics contains the following stipulations:

• "(a) In a business as complex as banking, there are many rules to be followed. The various manuals covering the Bank's operations, and notably the Personnel Manual, contain detailed rules and procedures for manysituations. Most are not repeated in this Code. Rather it contains brief statements of a relatively limited number of basic principles. For full understanding, employees should study the related rules and instructions in conjunction with the material contained in this Code."

12 The Code goes further:

"(b) The Code has been prepared with an understanding that personal integrity is a quality of character which cannot be created or preserved by written rules alone. Rules, like laws, cannot substitute for a sense of honesty, fairness and decency. In the final analysis, the ethical conduct of the affairs of the Bank depends upon the understanding and judgment of all employees. We expect that the actions of all employees will reflect the ethical standards of the Corporation and bring credit to the Caribbean Banking Corporation Limited,"

13 Learned Counsel for the Defendant has submitted with regard to the Code of Ethics that there is ample reason why the Defendant is so careful to espouse these ethical principles. He states the reason as being that from time immemorial the success and growth of any bank has always depended on the honest principles of public trust and confidence. The public must believe that its money when placed in a bank is safe and that its integrity and ethical practices and principles will never be compromised. Thus a Bank's highest capital is good will and universal public trust. He referred to the Code at page 5 which states that:

"The Bank's books and records shall be maintained with scrupulous integrity reflecting an accurate and timely manner of all transactions of the Corporation."

He contended that the Claimant was certainly aware of this statement of principle.

14 Consistent with these ethical principles of banking, Counsel further submitted, is a statement of law that the money paid into a bank is no longer the property of the customer and constitutes a debt of the bank to the customer; and a debt is not a suitable subject for a lien."The money is the banker's to do as he likes with, but he is under obligation to repay the debt on demand." - SeePaget's Law of Banking, 9^th Edition, Megrah and Ryder, London 1982 at p. 411.

15 A Contract of Employment which is not expressed for a fixed term or upon the completion of a specific task, will be a contract of indefinite duration; it will go on until terminated by either party by notice. In the absence of express agreement it will be impliedly terminable, by reasonable notice on either side. This has been submitted by learned Counsel for the Claimant, to which I am in agreement unreservedly. A dismissal which does not comply with the notice to which an employee is expressly or impliedly entitled will be in breach of contract and thus wrongful. Such dismissal is called summary dismissal and unless the employer can prove that it was justified because of a serious breach of contract on the part of the employee, is wrongful. I agree entirely with this proposition which it seems to me is the basis of the Claimant's case.

16 The law has been that at common law summary dismissal of the contract of employment by either party, gives the innocent party the right to sue for breach of contract. The Defendant may have a defence if the Court is satisfied that the Claimant was guilty of conduct which amounted to a serious breach of contract or toa repudiation of the contract. As a general rule the breach by one party requires to be accepted by the other party before the contract comes to an end. In the case of the employee there must be breach by the employee of the expressed or implied terms of the contract and the breach must amount to a repudiation or be sufficiently fundamental. In determining what amounts to such a breach, each case must turn on its own peculiar facts and circumstances. Counsel for the Claimant has thus submitted and I fully agree with him. In fact his case revolves on these propositions of law which emanate from "The Law of Termination of Employment" by Robert Upex, 5^th Edition, Chapter 9 at page 325 paragraph 9,30 -

This means that opposite conclusions may be reached on similar facts and whilst in one context one single relatively minor breach may be sufficient to justify summary dismissal, the same may not be true of other different contexts. The most common instances of breaches of contract giving rise to summary dismissals are misconduct, disobedience to lawful orders and negligence. Although every case turns on its own facts, a single act is less likely to justify summary dismissal than a series of actions, the quality of the breach is what counts, not the consequences flowing from it. The more serious the breach the more likely it is that it will be held to justify summary dismissal."

17 Going further it is submitted on behalf of the Claimant that the innocent party has a choice to either waive the breach or repudiation and choose to treat the contract as continuing or may accept the breach or repudiation and treat the employee or itself as discharged from...