The Tribune

• But original $155,000 damages slashed 41%

• Terminated over gospel awards transaction

• Offshore bank, auto dealer dealings involved

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A senior banker, who “relied on a gut feeling” to determine which clients could repay their loans, has seen the original $155,000 damages he won from CIBC FirstCaribbean cut by more than 41 percent.

Byron Miller, a 22-year CIBC veteran who rose to the post of district manager before his 2011 termination over credit facilities provided to a gospel awards programme, Bahamas-based offshore bank and vehicle importer, still managed to prevail in his wrongful dismissal claim after it was sent back to the Industrial Tribunal by the Court of Appeal.

However, Simone Fitzcharles, the Industrial Tribunal’s vice-president, while reaching the same conclusion as the original verdict, also reduced the award from the $128,572 claimed by Mr Miller to $91,122 - a cut of some 29.1 percent.

Mr Miller, who joined CIBC in January 1989 as a customer service representative/teller, successfully “moved up the ranks” to become a senior manager responsible for four branches - Shirley Street, Bay Street, Sandyport and Governor’s Harbour - and 69 employees by 2004.

When he was dismissed from his $84,967 per year post, for allegedly failing to comply with CIBC First Caribbean’s credit and operational policies, he was jointly responsible for 428 staff at 13 different branches.

Detailing the three loan transactions at the centre of the dispute, the latter of which led directly to Mr Miller’s termination, the Industrial Tribunal detailed how Roland Cox, proprietor of Cox Auto Sales, sought his help in obtaining $25,861 in financing to pay Customs tariffs and shipping costs associated with three vehicle imports.

Mr Cox argued that his account manager, Kevin Fernander, “takes too long” to approve such transactions, and Mr Miller gave the go-ahead on October 4, 2010, so with Mr Cox pledging to repay the funds with part-proceeds from the vehicles’ sales.

However, unbeknown to Mr Miller, the auto dealer caused his CIBC FirstCaribbean account to go into overdraft temporarily when he wire transferred the loan proceeds. This, while only temporary as Mr Cox repaid the monies as promised, sparked an investigation by the bank just days after Mr Miller had both been appointed district manager and authorised the loan.

Mr Miller, in his defence, said the bank incurred no loss and the transaction “carried a less than 1 percent risk” because of Mr Cox’s repayment track record. CIBC FirstCaribbean, though, said he had acted in an “inappropriate and unauthorised manner” in granting the loan, and complained that he lacked the necessary authority to extend such credit.

The Industrial Tribunal then detailed a second transaction on behalf of CBH (Bahamas), the former Banque Alliance, which did not want its then-managing director to know he was being made redundant by discovering the “large amount of money” that would be wired to the bank’s CIBC FirstCaribbean account the night before to finance the pay-off.

Mr Miller offered to defer processing the transaction into CBH (Bahamas) account for one day, but this again aroused CIBC FirstCaribbean’s ire and he was given a final warning on the basis that credit was once again being extended “inappropriately”. His bonus for 2010 was cut by 50 percent as a result.

The final transaction that sealed Mr Miller’s fate, which occurred before the other two, involved an approach by Kevin Harris, organiser of the Marlin Awards. The banker approved what was described as a $12,000 “excess” on the awards ceremony’s account, not an overdraft, which was unsecured and permitted it to go into a “negative” position for a short period.

No approval was received from the credit risk management department, but Mr Miller said he had received an agreement from Mr Harris promising to repay the $12,000 from ticket sales and sponsorship proceeds.

“At the time this transaction was being investigated, [Mr Miller] explained his position and defended himself by stating that he relied on a gut feeling developed after 22 years about who could repay their commitments,” the Industrial Tribunal verdict noted.

“He relied on the fact the show was a Christian event and the fact he was introduced to Mr Harris and the Marlin Awards need for financing by a managerial level employee of the bank (Berlyn Neely) whom he considered to be ‘a man of integrity’. 

“Mr Miller did not know Mr Harris personally, so as to ground any assumption he extended a favour. Rather, he seemed persuaded to approve the transaction based on the involvement of Berlyn Neely, who was also a signatory on the Marlin Awards account.”

CIBC FirstCaribbean argued that Mr Miller had “admitted his wrongdoing”, but the latter said he never attempted to conceal the transactions. While the bank argued that he placed it “at serious risk of loss”, Mr Miller - while acknowledging his mistakes - added that no damage had occurred and he had been “an exemplary employee” for 22 years.

The Industrial Tribunal ultimately concluded that Mr Miller was wrongfully dismissed because he had not committed a breach serious enough to warrant such action being taken. “Neither is the Tribunal satisfied that the respondent formed, or could have formed, an honest or reasonable view that the applicant to undermined the trust and confidence of the respondent that he should no longer be retained in employment,” Ms Fitzcharles concluded. However, she declined to order that Mr Miller recover the 50 percent of his 2010 bonus that was lost.

The matter was heard by Ms Fitzcharles because the Court of Appeal, in a 2019 ruling, found that CIBC FirstCaribbean had been the victim of “a substantial miscarriage of justice” because the Industrial Tribunal had “exceeded its authority” by failing to follow its own procedures during the first hearing.

It discovered that then-Industrial Tribunal vice-president, Keith Thompson, had erred by allowing Mr Miller to change the basis of his claim from “wrongful” to “unfair” dismissal during the main hearing of the case despite its own rules forbidding this.