The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A former Central Bank security guard has seen his $18,529 unfair dismissal award overturned by the Court of Appeal which found he failed to act with “the utmost probity” over a vehicle purchase.

Lorenzo Deveaux’s bid to hit a home run by seeking the full $97,013 damages sought in the original Supreme Court trial, and be reinstated to his previous $23,490 per annum job, was never considered as the appellate court instead found for the banking and monetary policy regulator. 

Sir Michael Barnett, the Court of Appeal president, in a unanimous September 26, 2022, verdict ruled that Mr Deveaux’s admission to altering his name on the insurance certificate for a 2005 Nissan Murano, purchased with a loan from his then-Central Bank employer, and provision of two separate Vehicle Identification Numbers (VINs) for the car, was sufficient for the regulator to find him guilty of gross misconduct.

Ex-justice Ruth Bowe-Darville, in the October 29, 2021, Supreme Court ruling found that Mr Deveaux “never intended to misrepresent or perpetrate a fraud” on the Central Bank when he changed his name on the insurance certificate so it matched that on his identification documents.

Describing the “mismatch” between legal and street names as “a somewhat common Bahamian malady”, she found his actions did not amount to gross misconduct and merit the summary dismissal that the Central Bank imposed. The insurance certificate was significant for the Central Bank as it had wanted to be identified as the “loss payee” to whom the proceeds of any insurance claim should be paid.

However, Justice Bowe-Darville noted that it never bothered to register or stamp any mortgage security, and the failure to do so meant that - under the Stamp Act - this became inadmissible as evidence in court. Sir Michael and the Court of Appeal, though, took an entirely different view.

Noting that the former Central Bank security guard admitted to his actions during the original trial, Sir Michael wrote: “In the instant case Deveaux, by his own admission, altered his name on an insurance certificate that was related to the vehicle which the bank was to be holding as security. In my judgment, there was no legitimate reason for him to alter his name even if he genuinely believed that he had multiple names.

“Deveaux could have easily informed the insurance company of the desired name to be placed on the insurance certificate rather than altering it himself. At a minimum, altering the insurance certificate can constitute evidence of a fraudulent offence or dishonesty, both of which made him susceptible to summary dismissal under section 31 of the [Employment] Act.”

Sir Michael said insurance contracts require “good faith on the part of the insured”, and added: “Good faith certainly cannot include altering one’s name on the insurance certificate.” He wrote that the Central Bank’s industrial agreement with the union representing its staff enabled it to dismiss off-duty workers who were guilty of “grave misconduct” off-premises that reflected badly on it, with altering the insurance certificate likely to be covered by such a term.

“This issue of the altered insurance certificate becomes even more egregious given that the insurance certificate also has a different VIN number from the VIN number on the bill of sale. Deveaux also admitted to this disparity in the trial transcript,” Sir Michael ruled

For my part, I take judicial notice of the fact that every vehicle is manufactured with a single and unique VIN number. When Deveaux’s admitted alteration of the insurance certificate is combined with the inexplicable mystery of two vastly disparate VIN numbers (7199 and 9576) for allegedly the same vehicle, the bank had more than enough reasonable basis to conclude that there was significant dishonesty involved in this whole matter.”

Not content to leave it there, the Court of Appeal president blasted: “Finally, Deveaux’s conduct must be considered in light of the fact that he is a security officer responsible for guarding the premises of, not just any bank, but the foremost bank in The Bahamas. One would expect a person in his vocation charged with securing life and property to be imbued with the highest integrity.

“Accordingly, the bank would reasonably require its employees, including Deveaux, to be trustworthy and conduct any business that they have with the bank in a trustworthy manner. It is a reasonable expectation of the bank that its employees will operate with the utmost probity in their dealings not only with the bank but with the general public.

“Suffice it to say, in my judgment, there was sufficient evidence to enable the bank to form an honest and reasonable belief that Deveaux’s actions amounted to gross misconduct. Deveaux’s actions met the threshold of gross misconduct (the Act) and a major offense (the industrial agreement),” Sir Michael continued.

“Deveaux’s conduct in altering the insurance certificate, and the perplexing issue of the two VIN numbers for a single vehicle, undermined the trust and confidence which was inherent in the employment contract. Accordingly, the bank should no longer be required to retain Deveaux in its employment.”

Sir Michael concluded by criticising the original Supreme Court verdict. “I cannot agree with the trial judge’s finding that while the bank ‘would wish that employees and persons who represent their organisation act with the highest intention and integrity, this is not a realistic function. Mr Deveaux’s actions did not represent the highest level of integrity; however by no means was a fundamental aspect of his employment contract breached’,” he said.

“It is also incredulous that the judge admitted that Deveaux’s ‘actions might give way to suspicions of dishonesty” which is utterly incongruent with her conclusion that the same actions did not admit of gross misconduct and therefore warrant summary dismissal’.

“That determination was in my view unreasonable and irreconcilable. The only logical conclusion under the circumstances was that Deveaux’s actions amounted to gross misconduct and undermined the trust and confidence that the bank would have required to retain him as an employee.”