The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A former Atlantis employee who masterminded a $300,000 fraud against the Paradise Island resort has seen her wrongful dismissal counter-claim dismissed by the Court of Appeal.

It also upheld the hotel's "breach of fiduciary duty" against Monteigne Cunningham, a former administrative assistant in its security administration office, finding that she was in a position of trust that required her to act honestly as the last person to send cheque payment requests to the Atlantis accounts department.

The Court of Appeal, in a unanimous verdict, detailed how Ms Cunningham was responsible for approving and authorising payment to third party investigators who carried out due diligence and background checks on prospective Atlantis employees.

She also had to prepare and submit cheques for these vendors to Atlantis' accounts department for final signature and payment, and the verdict detailed how she was able to defraud the resort of some $298,178 by working with a family member.

"The respondent [Atlantis] uncovered invoices put in by Franklyn Moss, who was not an approved vendor, with cheque requests for payment to him for services given," the Court of Appeal said.

"The appellant's [Ms Cunningham's] actions resulted in the respondent approving and paying t$298,178 to Franklyn Moss without proper authorisation. The appellant gave a statement admitting the fraudulent scheme, and said that Franklyn Moss was a relative who she asked to cash the cheques and pay the money to her.

"The appellant said, however, that she gave the written statement by duress. Franklyn Moss admitted he cashed the cheques and paid the money to the appellant."

Criminal charges brought against Ms Cunningham in the Magistrate's Court, including 15 counts of forgery, 15 counts of uttering a forged document and 14 counts of fraud by false pretences, were dismissed. However, Atlantis subsequently was more successful with a civil claim it brought against her.

Supreme Court justice, Rhonda Bain, branded Ms Cunningham as "not a credible witness" and preferred the evidence of Mr Moss. She found that the former employee breached her fiduciary duty to the resort via a scheme where she used information from legitimate vendors, had the cheque requests approved, and then changed the name on the cheques.

Justice Bain described Mr Moss as "an innocent party and not part of the fraudulent scheme", and ruled that Ms Cunningham needed to return the $298,178 to Atlantis with interest at 4 percent from the day the action was filed.

Ms Cunningham appealed the breach of fiduciary duty finding, as well as the dismissal of her counter-claim for wrongful dismissal. However, the Court of Appeal found there was no evidence to support her claims that she signed her written admission of fraud under duress from the "use of threats and oppression".

"In this case, the appellant contends that she did not owe a fiduciary duty to the respondent as she was not a manager, shareholder or director, but simply an administrative assistant," it added.

"She also contends the respondent supervised her duties. On this basis, she argues the trial judge's finding that she was a fiduciary was an error on the facts."

This was rejected by the Court of Appeal, which found: "We are of the view that the duties of the appellant imposed a fiduciary duty on her to act honestly and for the respondent.

"On her admission the appellant abused this duty by creating a false cheque request and fraudulent invoice in the name of Franklyn Moss; enabling cashing the fraudulent cheque; and keeping the money for her own use."

The Court of Appeal found that summary dismissal of Ms Cunningham was warranted because her conduct "amounted to a fundamental breach of contract". It dismissed all her other grounds of appeal.