Clarise Jupiter v Petroleum Company of Trinidad and Tobago
| Jurisdiction | Trinidad & Tobago |
| Judge | Donna Prowell-Raphael,Ms. Leela Ramdeen |
| Judgment Date | 13 February 2019 |
| Docket Number | E.O.T. No. 0006 OF 2017 |
| Court | Equal Opportunity Tribunal (Trinidad and Tobago) |
Her Honour Donna Prowell-Raphael, Judge/Chairman,
Her Honour Ms. Leela Ramdeen, Lay Assessor
E.O.T. No. 0006 OF 2017
IN THE EQUAL OPPORTUNITY TRIBUNAL
Ms. Abayomi T. Ajene, Attorney at Law for the Complainant.
Ms. Deborah Peake SC leading Mr. Ravi Heffes-Doon, instructed by Ms. Marcelle A Ferdinand, for the Respondent.
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”). If the 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 was lodged at the Commission on May 28, 2014 4. The Commission was of the view that it could have been resolved by conciliation. Therefore, with the concurrence of the parties, two (2) conciliation sessions were held on November 30, 2015 and March 17, 2016. The matter was not resolved at conciliation. As such and further to section 39(1) of the Act, the Commission prepared its Report dated March 31, 2017 (the Commission's Report') 5. The matter was referred to the Tribunal by certificate dated May 25, 2017.
In compliance with various orders of the Tribunal, the parties have met the Case Management Time-table fixed by the Tribunal.
The trial was fixed for hearing on October 15, 2018. At the trial, the respondent sought leave to take a preliminary point of law (‘the said application’). The said application was made orally. Coming out of these submissions, the Tribunal by order of even date, certified the following issues for preliminary determination and directed the parties to file written submissions thereon:-
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(i) The Tribunal's jurisdiction to grant the reliefs prayed in the Complaint filed 16 th May, 2018.
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(ii) Whether the time barred issue affects the viability of the Complaint before the Tribunal.
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(iii) Any ancillary applications to strike out.
The respondent filed its submissions (‘Respondent's Submissions’) on 2 nd November, 2018 the complainant (‘Complainant's Submissions’) responded by submissions filed on 22 November 2018 and the respondent filed its submissions in response (‘Respondent's Reply’) on November 29, 2018.
The thrust of the submissions of the Counsel for the respondent is that certain allegations (the said allegations') that the complainant has advanced in her Claim Form and Particulars of Claim 6 (‘the Claim’) were not canvassed and or investigated by the Commission and therefore the Tribunal has no jurisdiction to hear them. The respondent has compared the allegations set out in the Commission's Report to the allegations made in the Claim Form and identified the said allegations as not having been included in the Commission's Report. The respondent contends that in so far as the said allegations are not mirrored in the Commission's Report that they have not been investigated and or canvassed therefore, outwith the Tribunal's jurisdiction. She relies on sections 39(1) and 41(4) of the Act, the Court of Appeal decisions in Equal Opportunity Commission v. Attorney General of Trinidad and Tobago & Director of Personnel Administration 7 as well as Hosein v. Caroni (1975) Limited 8.
The respondent contends in summary that only some allegations are within the scope of the complaint for discrimination by victimisation and can be properly advocated before the Tribunal. The complainant has sought to distinguish both cases on the ground that these cases would only apply if a new ground of discrimination had been raised in the Claim. However, the Claim does not raise a new ground of discrimination and therefore, their cases do not apply.
At the trial, prior to the hearing of oral submissions on the said application, Counsel for the respondent sought to adduce the Commission's Report as part of a Supplemental List on which she intended to rely. In the absence of a pleading in the Defence that links the Commission's
The Tribunal also raised with the parties its disquiet as to whether the Commission's Report trespassed on section 40(1) of the Act. Counsel for the respondent expressed the view that the Report referred to the investigation, and not the conciliation. Counsel for the complainant stated that the Report did not fully ventilate all the issues that were addressed at the Tribunal. The Tribunal opted to take a further look at the Report before deciding on its admissibility meanwhile permitted the respondent to proceed with the said application.
In the interim the Tribunal has further considered the admissibility of the Commission's Report in the case of Baptiste v. University of Trinidad and Tobago 9. The Tribunal has made a copy of that decision available to the parties, and indicated its willingness to permit supplemental submissions to be made. The Tribunal has received no indication that the parties wished to supplement their submissions.
This said application has come fairly late in these proceedings. It would have been a better order had the said application been made earlier 10. The respondent has not made any reference in its Defence (‘Defence’) 11 to its intention to take a jurisdictional point with respect to the said allegations. At the hearing on June 22, 2018, Counsel for the respondent indicated that she did not...
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