Aishasabur v The National Maintenance Training & Security Company Ltd

• Jurisdiction: Trinidad & Tobago
• Judge: Donna Prowell-Raphael,Mrs. Lenore Harris
• Judgment Date: 03 March 2023
• Docket Number: E.O.T. No. 0001 of 2018
• Court: Equal Opportunity Tribunal (Trinidad and Tobago)

Between

Aishasabur

Complainant

and

The National Maintenance Training & Security Company Limited

Respondent

Coram:

HH Donna Prowell-Raphael, Judge/CEOT.

Lay-assessor: Mrs. Lenore Harris.

E.O.T. No. 0001 of 2018

EQUAL OPPORTUNITY TRIBUNAL

Appearances:

Mr Aaron Seaton for the Complainant.

Mr Michael Vialva for the Respondent.

Contents

The Tribunal	5
The Proceedings	5
Complaint	5
Defence	6
Evidence	7
Issues	8
Analysis of Evidence	8
The Complainant	8
The Respondent	9
The Interview	11
The Newspaper Article	15
The Offer	15
Findings of Fact	16
Law	18
Definition of Religion	19
Broadly Similar, Analogous/Materiality	20
Comparators	21
Legitimate Aim/Proportionality	22
Relief, Damages and Costs	24
Relief	24
Damages	26
Costs	28
Disposition	29

THE TRIBUNAL

1 The Equal Opportunity Tribunal (‘the Tribunal’) is a civil rights judicial institution. The Tribunal was established as a superior court of record by the Equal Opportunity Act Chap 22:03 (‘EOA’) 1 with the jurisdiction to hear and determine specified complaints of unlawful discrimination 2, victimisation 3 and offensive language 4. The Tribunal also has commensurate inherent 5 and statutory powers 6 to make its procedures effective and to grant relief.

THE PROCEEDINGS

Complaint

2 The complainant was invited, by an officer of the respondent, to attend the respondent's offices to be interviewed for a position as a security recruit. She did so wearing a hijab 7, (an Islamic head covering). The hijab (‘hijab’) covered her hair, neck and ears but the respondent's policy (at that time) required the hair, ears and neck of applicants to be visible during the screening stage of the interview. The

complainant registered to be interviewed but because of her religious beliefs she refused to remove her hijab publicly to expose her hair, ears, and neck. She claims that she felt humiliated by the treatment meted out to her by the respondent's officers. Thereafter she was unable to proceed further with the interview

3 The complainant alleges she was thereby discriminated against because of her religion, in contravention of the EOA. She prays the following reliefs—

• a) A Declaration that the respondent discriminated against her on the ground of her religious status in the arrangements they made for the purpose of determining who should be offered employment, in the terms and conditions in which employment was offered and or by refusing or deliberately omitting to offer her employment in contravention of Section 8 of the Equal Opportunity Act Chapter 22:03;

• b) A Declaration that the respondent's policy or practice of not permitting security officers in their employ to wear the Muslim veil or hijab while on duty, constitutes religious discrimination in employment and is illegal and in convention of Section 8 of the Equal Opportunity Act, Chapter 22:02;

• c) A public apology from the respondent for the discriminatory treatment she experienced due to their implementation of the said policy and practice.

• d) An offer of employment with the respondent;

• e) Damages;

• f) Interest on the sum awarded at a rate of 6% per annum from the date of the filing of the complaint to the date of payment; and

• g) Costs.

Defence

4 The respondent admits that its policy required applicants for the position of security recruits to have their hair, ears and neck visible for the screening but contends that the complainant did not want to stand in line with her head uncovered and left of her own volition. It therefore denies that the complainant was discriminated against as alleged or at all. The respondent posited that it is bound by the Supplemental Police Act 8 and the Regulations thereunder and that the approved uniform for its precepted officers did not provide for the wearing of the hijab at the material time.

5 In any event, even if the complainant is successful in this claim, the respondent contends that the complainant should only be awarded nominal damages because not only had she failed to mitigate her loss by accepting its offer of alternative employment, but by giving an interview to a newspaper about the alleged incident, that was carried on social media, she had aggravated any loss or injury that she may have suffered by any incidental negative public comment.

Evidence

6 Two (2) Witness Statement were filed on behalf of the complainant —

• a) The Witness Statement of the complainant; and

• b) The Witness Statement of the complainant's mother, Halimah Sabur.

7 Four (4) employees of the respondent filed Witness Statements on its behalf —

• a) Ms. Joan Maharaj — (former) Human Resource Officer II;

• b) Mr. David Brown — Employee Relations Manager;

• c) Ms. Erica Farfan — Maintenance Worker; and

• d) Ms. Joanna Mahadeo — Human Resource Assistant.

8 All witnesses were cross-examined by opposing Counsel on their respective Witness Statements.

9 The parties have complied with all pre-trial and post-trial orders and directions.

Issues

10 The parties agreed the following substantive issues for determination—

• a) What was said in the conversation that the complainant had at the respondent's offices, with Ms. Joan Maharaj and Mr. David Brown, on April 26, 2017; and

• b) Whether the respondent's policy of not allowing female security officers to wear the hijab while on duty is discriminatory.

11 The parties closing submissions on damages/costs raise the issue as to whether the award should be affected if it were held that the complainant failed to mitigate any damages and or contributed to the injury claimed.

ANALYSIS OF EVIDENCE

The Complainant

12 The complainant at the time of making her Witness Statement, was about thirty-four (34) years old or thereabout. She testified that she had worn the hijab all her life as a devout practising Muslim, consonant with the tenets of the religion in which she had been brought up from childhood.

13 With respect to work experience, the complainant testified that she was a baker and had worked previously in cleaning and security jobs. Her evidence is that she was employed “just like normal security, not like security, recognised security” 9. Prior to seeking employment with the respondent, the complainant stated that she worked at Service Air at the airport as a “security agent” and her duties included 10—

“… making sure the passengers go on the aircraft, making sure nothing illegal in bags, searching doing TSA, Transportation Service Authority, I think that is the meaning of TSA.”

14 She testified that she also worked with a “lady” doing private security 11 —

“… The lady husband had no legs and I was like more or less like his security, taking care of him and making sure that he was okay there. You know, like caretaker and security in one.”

15 In addition to these two (2) stints of security work, the complainant testified that she did three (3) days of a ten (10) day training programme with Amalgamated Security Services Ltd. She also worked with Clean Way Cleaning in a temporary position. She also did other “little ends of jobs”. At the time of the trial, the complainant stated that she had been a labourer with CEPEP for about one (1) year.

The Respondent

16 The evidence discloses that the respondent is a limited liability company that is wholly owned by the State. It is engaged primarily in the provision of maintenance and security services. The respondent provides security services to several State institutions including the Judiciary, educational institutions, post offices and hospitals as well as several private entities. Its security services include unarmed and armed security officers, cash in transit, elite canine electronic monitoring and rapid response security. The operation of security services by the respondent is governed by the Supplemental Police Act and the Regulations thereunder.

17 The respondent employs a squad of precepted security officers for which it carries out recruitment exercises from time to time. The recruitment process requires that applicants undergo an interview process which is carried out in several stages to select eligible persons relating to age, physical fitness, character, work experience and literacy. The respondent's security officers are required to wear the uniform that is approved by the Commissioner of Police. If successful as a security recruit, applicants would be required to train wearing a prescribed training uniform, that, at the material time, also did not include a hijab.

18 Mr. David Brown testified that he had been employed with the respondent for almost forty (40) years and had been the Employee Relations Manager for approximately eight (8) years during which time the subject incident occurred. His role in the respondent was 12

“To provide guidance on policy, procedures, best practices, labour laws, labour guidance, Industrial Court judgments, assist with disciplinary proceedings, advise employees as the need might be in good industrial relations practice and the rules and principles of the company that they are guided by.”

19 The thrust of Mr. Brown's evidence is that, apart from administrative officers, the respondent employed persons in both the maintenance and security areas. Employees of the respondent, were permitted to use religious headgear, save for security officers while on duty. The approved uniform used by security officers did not include religious headwear. Mr. Brown testified 13 —

“At the material point in time, MTS [the respondent] was guided by the Standing Orders of the Trinidad and Tobago Police Service. MTS [the respondent] is a paramilitary hundred per cent, fully-owned state enterprise. All our officers are almost all over Trinidad, in Government agencies, et cetera. So we have adopted that model from inception, and we are guided by the...