Burton Baptiste v The University of Trinidad and Tobago
| Jurisdiction | Trinidad & Tobago |
| Judgment Date | 10 December 2018 |
| Docket Number | E.O.T. No. 0008 of 2017 |
| Court | Equal Opportunity Tribunal (Trinidad and Tobago) |
E.O.T. No. 0008 of 2017
IN THE EQUAL OPPORTUNITY TRIBUNAL
(Referred pursuant to S. 39(2) of the Equal Opportunity Act 2000 as amended by Act No.5 of 2001)
The Equal Opportunity Act 1 (‘the Act’) permits a person who claims that he has been discriminated against to submit 2 “a written complaint… setting out the details of the alleged act of discrimination” to the Equal Opportunity Commission (‘the Commission’). Where that complaint after investigation cannot, or is not resolved, through conciliation by the Commission, the Commission is mandated with the consent and on behalf of the complainant, to institute proceedings before the Equal Opportunity Tribunal (‘the Tribunal”) 3 for judicial adjudication.
The adjunct complaint (‘the said complaint’), was lodged at the Commission on January 25, 2013 4. This complaint was brought under section 9 of the Act, and framed under section 9(b) thereof, to wit discrimination by the respondent 5:
“… as his employers in the way it has afforded him (or rather omitted) him access to opportunities for promotion, transfers, training or any other benefit, services or facility associated with his employment…”
Attempts at conciliation were unsuccessful 6. The instant proceedings were instituted before the Tribunal on behalf of the complainant by the Commission on June 22, 2017.
By Claim Form and Particulars of Complaint dated March 7, 2018 and filed on the same day, the complainant claims inter alia, and seeks damages emanating from:
“… A Declaration that the complainant was discriminated against by the agents/servants of the Respondent in treating the complainant less favourably than in those circumstances the agent/agents treats or would treat other persons, and did so by reason that the complainant's race, contrary to Section 8 and 9 of the Equal Opportunity Act, Chap 22.03 of the Equal Opportunity Act Chap 22:03 (hereinafter referred to as the “Act”).
i) This is premised on the fact that the complainant was treated less favourably in the awarding of the duration of his contract, as well as a disparity in his salary as compared to another worker who was hired for the same position at the same time.”
The Respondent by his List of Issues filed on November 20, 2017 has identified as a Preliminary Issue:
“Whether the issues relating to the disparity in salary and contract duration between the complainant and Ms. Azeena Ali can be heard and determined by the Tribunal, having regard to the fact that those issues did not form part of the Complaint lodged by the complainant with the Equal Opportunity Commission in January, 2013”.
Pursuant to the Order of the Tribunal of June 13, 2018, the Respondent filed submissions in support of the Preliminary Issue on July 31, 2018, and the complainant responded by submissions filed on September 21, 2018.
It is common ground that both the complainant and the comparator (for this allegation) Ms Azeena ali (‘the comparator’), were employed on February 1, 2007 by the Respondent as
The crux of the respondent's submission is that the disparity in the initial salary and contract duration of the respondent and the comparator were not included in the complaint and therefore the complainant ought not to be permitted to raise this ground of complaint before the Tribunal.
In support of his submissions, Counsel for the respondent relied on both the High Court Judgment of Boodoosingh J. 8 and the Court of Appeal's decision delivered by Rajkumar J. A. 9 in Equal Opportunity Commission v The Attorney General of Trinidad & Tobago and the Director of Personnel Administration (DPA). The respondent submitted that Boodoosingh J held that the Tribunal can only deal with such matters as are referred to it by the Commission 10 and that Rajkumar J.A. in agreeing with that general proposition, reinforced that “a complainant cannot raise issues before the Tribunal that was not investigated by the Commission” 11. The respondent further submitted that the phrase which involved the word “issues” used by the Court of Appeal must be confined to the subject matter of the complaint. Raising issues that were not part of the subject matter of the complaint introduces a fresh complaint.
The Counsel for the complainant by submission filed on September 31, 2018 argued that the complainant's claim of discrimination based on the disparity in the respective salary and contract duration of the complainant and the comparator, was not a fresh complaint. The claim for discrimination on this basis was subsumed in the broad claim for discrimination
The critical issue for determination before the Tribunal at this stage, therefore, is the jurisdiction/power of the Tribunal to hear ‘issues’ that did not form part of the subject matter complaint initially lodged Neither the Court of Appeal nor the High Court dealt specifically with this issue in Equal Opportunity Commission v The Attorney General of Trinidad & Tobago and the Director of Personnel Administration. Both courts confined their views to the related, but different question posed — jurisdiction/power of the Tribunal to hear afresh matter complaint that were not investigated by the Commission but raised at the Tribunal. The similarity of the issues makes the principles of law they invoked applicable to both the jurisdiction to consider issues that were not part of the subject matter of the complaint, as well as to the jurisdiction to consider issues that were not investigated.
Boodoosingh J. at first instance and Rajkumar JA. at the Court of Appeal, considered as decisive that the jurisdiction of the Tribunal was limited both by the Act and by the principles of natural justice.
Rajkumar J.A., in agreeing with Boodoosingh J, stated 12:
At paragraphs 63 to 66 of the judgment the judge dealt with the fourth question as follows:—“Question Four: Whether the Equal Opportunity Tribunal has jurisdiction/power to consider a fresh complaint that was not investigated by the EOC. 63. The claimant made oral submissions on this issue. The Attorney General submitted that for the purposes of the EOA, the jurisdiction of the Tribunal is limited only to entertain matters that have been investigated by the Commission. They rely on the authority of Suratt v The Attorney General where the Privy Council held that the Act did not contemplate that
64. The Attorney General also submitted, referring to the authority of John v Rees (1969) 2 All ER 275, that it would be contrary to the principles of natural justice to permit the deliberation by the tribunal of issues not canvassed by the EOC since it is well settled that a person must be given full particulars of allegations against him or her to answer the allegations made.
65. Mr Martineau SC submitted that the answer lies in the whole scheme of the Act. He noted the Act provides for a procedure where the complaints are lodged with the EOC and not with the Tribunal. This in itself is self-explanatory and it would be an abuse of process if new issues are permitted by the Tribunal as this would defeat the true object of the Act and its prescribed procedure. Thus for the purposes of sections 39, 41, 44 and 46 of the Act, the complainant cannot raise fresh issues before the Tribunal which were not investigated by the EOC.
66. I agree with the submissions of the Attorney General and the DPA that the Equal Opportunity Tribunal can only deal with such matters as are referred to it by the EOC. Thus in the hearing of a complaint they may not permit fresh matters not previously investigated and referred by the EOC to be added to the subject of a hearing of a matter previously referred to it by the EOC. To do so would be manifestly unfair.”
Rajkumar J.A., went on to modify the broad statement of Boodoosingh J, by concluding 13:-
“The reasoning of the trial judge on the general proposition that was before him, then agreed to among all the parties, is correct. With respect to the exceptional case of alleged victimization subsequent to an investigated complaint it would be a matter for the Tribunal as a superior court of record, to be considered on a case by case basis in relation to specific circumstances and factual contexts. It would not therefore be appropriate on an application for interpretation of the statute to fay down in a vacuum any general principles that may restrict the Tribunal's exercise of any discretion that it may have.” [Emphasis mine].
It is a statutory reality that has been reiterated by the Privy Council in Suratt v AG 14 and as it was in Equal Opportunity Commission v The Attorney General...
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