Anthony Noel Egbert v The Attorney General of Trinidad and Tobago
| Jurisdiction | Trinidad & Tobago |
| Judge | V. Kokaram, J.A. |
| Judgment Date | 11 October 2022 |
| Neutral Citation | TT 2022 CA 45 |
| Docket Number | Civil Appeal No. S111 of 2022 |
| Court | Court of Appeal (Trinidad and Tobago) |
In the Matter of the Constitution of Trinidad of the Republic of Trinidad and Tobago
and
The Application for Redress by the Applicant Pursuant to Section 14 of the Constitution of the Republic of Trinidad and Tobago for the Contravention of Sections 4 and 5 of the Said Constitution in Relation to the Application
and
In the Matter of the Decision of Caroni (1975) Limited to Illegally Retrench the Claimant and to Deny the Claimant the Opportunity to Accept His Voluntary Employment Separation Package Affairs from an Expired Deadline
and
In the Matter of the Decision of Caroni (1975) Limited to Offer Vesp to Different Classes of Employees on 14th July, 2003 Who Did not Qualify for Vesp from the Policy Decision of the Cabinet of Trinidad and Tobago and/or the Inter-Ministerial Committee for the Restructuring of Caroni and/or the Memorandum of Agreement between the Board of Caroni (1975) Limited and the Trade Unions for Workers in Caroni Under the Collective Bargaining Process
V. Kokaram, J.A.
M. Holdip J.A.
Civil Appeal No. S111 of 2022
Claim No. CV2020-04314
IN THE COURT OF APPEAL
Mr. Jonathan Bhagan for the Appellant.
Ms. Mary Davis instructed by Ms. Michelle Benjamin and Ms. Nairob Smart for the Respondent.
Delivered by V. Kokaram, J.A.
In his constitutional motion 1, the Appellant, Mr. Anthony Noel Egbert, contended that his constitutional rights under sections 4(a), 4 (b), 4 (d) and 5 (e) of the Constitution of Trinidad and Tobago was infringed when Caroni (1975) Limited (“Caroni Limited”) unlawfully retrenched him without allowing him to make representations; treated him differently to different classes of employees in accessing/submitting his Voluntary Separation Employment Package (“VSEP”) and denied him the opportunity of submitting his VSEP after the expiration date. He sought certain declaratory reliefs that the decision by Caroni Limited to retrench him was unconstitutional, null void and in breach of section 4 of the Retrenchment and Severance Benefits Act Chapter 88:13.
As this appeal involves an alleged breach of the Constitution made by Mr. Egbert, I begin by endorsing the views of Lord Cooke of Thorndon in Observer Publications Limited v Matthews, [2001] UKPC 11 that:
“[53]….With respect, the image of the Constitution as secluded behind
closed doors is not one which their lordships adopt. Nor would it be right to think of the Constitution as if it were aloof or, in the famous phrase of Holmes J, ‘a brooding omnipresence in the sky’. On the contrary, human rights guaranteed in the Constitution….are intended to be a major influence upon the practical administration of the law. Their enforcement cannot be reserved for cases in which it is not even arguable that an alternative remedy is available. As Lord Steyn said, delivering the advice of the Privy Council in Ahnee v Director of Public Prosecutions [1999] 2 AC 294 at 307 ‘bona fide resort to rights under the Constitution ought not to be discouraged’. Frivolous, vexatious or contrived invocations of the facility of constitutional redress are certainly to be repelled.”
Is the constitutional motion filed by Mr. Egbert a bona fide resort to his rights under the Constitution which should not be discouraged or is it a vexatious, contrived invocation of the facility of constitutional redress and an abuse of process? This is the nub of the appeal and the main issue turns on whether the trial judge was plainly wrong to have struck out this constitutional claim as an abuse of process. The trial judge was of the view 2 that the motion was a re-litigation of an application which he had filed before the Equal Opportunity Commission; that it was an abuse of process due to the inordinate delay as his complaint which give rise to the alleged constitutional relief arose in 2003; that it was prolix and the affidavits contained some scandalous material; and it was an attempt to avoid a parallel remedy of judicial review against the decision of Caroni Limited to retrench him.
The main factual background to the claim and this appeal are as follows. Mr. Egbert was employed at Caroni Limited on 1 st September 1995 as an Estate Constable. He was retrenched on 31 st August 2003.
On 7 th January 2003 the Inter-Ministerial Committee for the Restructuring of Caroni Limited was appointed to inform the company of the government's decision to restructure the company and offer VSEP packages to the employees. The board of Caroni Limited was directed to offer VSEP to all employees under the collective bargaining process through their representative unions.
Mr. Egbert was offered VSEP by letter dated 17 th February 2003 under the collective bargaining process between Caroni Limited and his union, the EPA. The deadline for accepting the VSEP package was 3 rd April 2003.
On 28 th March 2003, the All Trinidad Sugar General Workers Trade Union (“ATSGWTU”) obtained an interlocutory injunction from the Industrial Court against Caroni Limited restraining the company from offering VSEP to its employees.
On 3 rd April 2003 Mr. Egbert reported for duty and was informed that they were not accepting his VSEP letter because of the injunction.
On 11 th July 2003 Caroni Limited and the ATSGWTU arrived at an agreement before the Industrial Court that the employees who had not accepted VSEP would be able to do so on 15 th August 2003.
Mr. Egbert contended that certain classes of employees were thereafter allowed to accept the VSEP packages after the deadline date while he was unable to. He also contended that he was informed by Mr. Clarence Rambarath, the then Corporate Secretary of the company and Mr. Deosaran Jagroo, the Ag Human Resource Manager, that he would be retrained and placed in the IT department of the company.
Instead of seeking immediate constitutional relief at that time or to apply to the High Court for leave to judicially review the decision of Caroni Limited to either retrench him or to refuse to accept his VSEP offer, he sought redress under the Equal Opportunity Act Chap 22:03, at the Equal Opportunity Commission (“the Commission”) and Equal Opportunity Tribunal (“the Tribunal”), by filing a complaint some six years later on 16 th October 2009. Conciliation proceedings were held on 16 th August 2011 but were unsuccessful. Thereafter, a train of events took place before the Commission and the Tribunal. The most relevant of those events are set out below.
On 5 th April 2013 he filed his claim for discrimination by race and sex pursuant to section 5 of the Equal Opportunity Act. The matter was called on 17 th July 2013 but adjourned to 18 th September 2013 for Mr. Egbert to obtain legal representation.
Upon obtaining an attorney, his claim was amended to allege victimisation pursuant to section 6(1) of the Equal Opportunity Act. The Respondent filed an application to strike out the claim on the basis that the amended claim of victimisation was a fresh matter that was not raised with the Commission.
On 30 th July 2017 Mr. Egbert's claim was struck out. He appealed that decision. The Court of Appeal subsequently remitted the matter to the Tribunal for a full hearing.
On 14 th February 2019 the Chairman of the Tribunal gave her decision striking out the complaint on the basis that the original complaint under sections 5 and 9 of the Equal Opportunity Act no longer existed when Mr. Egbert's claim was amended.
Mr. Egbert again appealed that decision and the Court of Appeal remitted the claim to the Tribunal.
Mr. Egbert, however, eventually applied to withdraw his complaint at the Tribunal and was granted leave to do so.
Importantly, the subject matter of his complaints before the Commission and Tribunal 3 concerned the failure of Caroni Limited to offer him VSEP by reason of race and sex and later as a result of its discrimination against him. He alleged that other persons similarly circumstanced to him were able to afford the facility but not himself.
A number of features of Mr. Egbert's attempt to seek relief for his unlawful retrenchment are noteworthy:
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a) His complaint arose in 2003 for the alleged unlawful retrenchment.
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b) The constitutional motion was made some 17 years after his complaint arose against a company that is no longer in operation. I note that his decision to invoke his constitutional rights was made after a considerable period of time when, (and if the complaint was a genuine one), there was no obstacle to Mr. Egbert having resort to our constitutional court in 2003.
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c) His allegation of breach of his constitutional rights arise out of the facts set out in his affidavits, in particular, paragraphs 10 to 61 of his first affidavit in support of his claim. 4 His specific complaints of alleged breach of constitutional rights are set out in paragraphs 62, 92 and 96 after his long travail before the Tribunal. At paragraph 62 he states:
“62. I have now decided to invoke my constitutional rights in order to approach the courts for an interpretation of the law on whether my retrenchment was unconstitutional and null and void and whether I suffered discrimination by inequality of treatment by not being allowed to submit my VSEP after the deadline of 3 rd April 2003 or to accept VSEP after the lifting of the interlocutory injunction in the same circumstances of other Caroni employees.”
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d) At paragraph 92 he states:
“ I have decided that since I no longer have any alternative remedies, I have made a decision to exercise my constitutional rights under sections 14(1) and 14(4) of the Constitution on account of guidance from the Court of Appeal to withdraw my complaint from the EOT and to file a constitution motion against the Attorney General by invoking my constitutional rights under...
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