Clarise Jupiter v Petroleum Company of Trinidad and Tobago Ltd

• Jurisdiction: Trinidad & Tobago
• Judge: Donna Prowell-Raphael,Mrs. Leela Ramdeen
• Judgment Date: 14 June 2019
• Docket Number: E.O.T. No. 0006 OF 2017
• Court: Equal Opportunity Tribunal (Trinidad and Tobago)

Between

Clarise Jupiter

Complainant

and

Petroleum Company of Trinidad and Tobago Limited

Respondent

Coram:

H.H. Donna Prowell-Raphael, Chairman/Judge

Mrs. Leela Ramdeen, Lay-Assessor.

E.O.T. No. 0006 OF 2017

IN THE EQUAL OPPORTUNITY TRIBUNAL

Appearances:

Ms. Abayomi T. Ajene for the Complainant.

Mrs. Deborah Peake SC, Ravi Heffe-Doon instructed by Ms. Marcelle A. Ferdinand for the Respondent.

DECISION

Contents

The Equal Opportunity Tribunal	3
The Complaint	3
Submissions of the Parties	4
The Respondent	5
The Complainant	5
Issues	6
Law and Analysis	6
The Scope of the Investigation	6
Admissibility of the Commission's Report	8
Decision	13

The Equal Opportunity Tribunal

1 The Equal Opportunity Tribunal 1 (‘the Tribunal”) is an anti-discrimination court established by the Equal Opportunity Act 2 (“the Act”). The Act permits a person who claims that he has been discriminated against to submit 3 “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 Tribunal for judicial determination of the complaint.

The Complaint

2 The complaint (‘the Complaint’) was lodged at the Commission on May 28, 2014 4. The Complaint was investigated and the Commission found 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.

3 The Complaint not having been resolved, proceedings were initiated by referral dated May 25, 2017 for determination by the Tribunal 6.

4 The parties have satisfied the Trial Time-table fixed by the Tribunal and the Complaint was fixed for trial on October 15, 2018.

5 At the trial Mrs. Peake SC (for the respondent) sought leave to take a preliminary point on the jurisdiction of the Tribunal and to adduce the Commission's Report as part of a Supplemental List on which she intended to rely. The Tribunal heard oral submissions on the admissibility of the Commission's Report, reserved its decision and issued directions to the parties to file written submissions on the preliminary point. The Tribunal gave its decision on the preliminary point on February 13, 2019. The Tribunal found that —

“A proper determination of the said application is inextricably linked to the admissibility of the Commission's Report …. The Tribunal will therefore hear the parties at the Trial as to what parts if any of the Commission's Report is admissible in in these proceedings.”

6 The Trial was then fixed to continue on April 11, 2019, but was adjourned to a date to be fixed because of the unavailability of the panel. The parties have advised the court that they do not wish to make any further submission.

Submissions of the Parties

The Respondent

7 Mrs. Peake (for the respondent), submitted that the jurisdiction of the Tribunal was limited by the scope of the Commission's investigation and that the Tribunal could not admit or hear evidence or issues that have not been investigated by the Commission. She relied principally on the decision of the Court of Appeal in Equal Opportunity Commission v The Attorney General of Trinidad & Tobago and the Director of Personnel Administration 7. Counsel stated that the Commission had not disclosed the actual complaint lodged by the complainant at the Commission. She therefore relied on the Commission's Report to extract the subject matter of the Commission's investigation.

8 In response to a question put by the Tribunal, Counsel for the respondent ventured that even if an issue did not form part of the Complaint that had been lodged with the Commission under s30(1) of the Act, but it had been investigated by the Commission, the Tribunal would have the jurisdiction to hear that issue.

9 Counsel for the respondent further submitted that the scope of the Commission's investigation could be extracted from certain paragraphs of the Commission's Report and that the Tribunal lacked jurisdiction to hear evidence outside of the issues disclosed in these paragraphs. The Commission's Report was therefore relevant to the determination of the jurisdiction of the Tribunal to hear the issues and evidence that were before it and ought to be admitted into evidence.

10 The Tribunal raised with the parties its disquiet as to whether the Commission's Report trespassed on s40 8 of the Act. Mrs. Peake SC responded that the Report was focused on the Commission's investigation, and not the conciliation process. As such it did not trespass on s40, however she recognised that there may be the need for some redaction.

The Complainant

11 Ms. Ajene, Counsel for the complainant, submitted (and Counsel for the respondent agreed) that the Report addressed the core issues of the Complaint. However, Ms. Ajene contended that the Commission's Report contained errors, omissions and inconsistencies that were material to the consideration of the scope of the Commission's investigation. Ms. Ajene submitted further that the Commission's Report did not fully ventilate all the issues that were investigated by the Commission. She contended that the Report requires further ventilation and evidence coming from the Commission to show the full ambit of their investigation. She pointed to specific paragraphs of the Commission's Report as examples of her contention that the ambit of the investigation was not limited to the issues put forward by Mrs. Peakc.

Issues

12 The following issue is therefore raised for determination:

Whether the report, having regard to the alleged inaccuracies/irregularities, is relevant and if so admissible in evidence before the Tribunal?

Law and Analysis

The Scope of the Investigation

13 Since the hearing of submissions al the Trial, the Tribunal has considered the admissibility of the Commission's Report in the case of Baptiste v. UTT 9. On the admissibility of issues that had been investigated by the Commission but did not form part of the subject matter of the complaint the Tribunal stated:

• “…18. It is a statutory reality that has been reiterated by the Privy Council in the Suratt v AG 10 and also in Equal Opportunity Commission v The Attorney General of Trinidad & Tobago and the Director of Personnel Administration that the jurisdiction of the Tribunal is limited to complaints referred to it by the Commission 11. However, the Act does not define “complaint”. Section 39 of the Act provides, however, that—

  • 39. (1) Where the Commission is of the opinion that the subject matter of a complaint cannot he resolved by conciliation or it has attempted to resolve the matter by conciliation but has not been successful in that attempt…

  • (2) Where the subject matter referred to in subsection (1) remains unresolved and the Commission has fulfilled the requirements set out in subsection 1(a) to (d), the Commission shall, with the consent and on behalf of the complainant, initiate proceedings before the Tribunal. [Emphasis mine].

• 19. The jurisdiction conferred by the Act is to adjudicate on the unresolved subject matter of the complaint. Viewed in this way, the subject matter of the complaint must be gleaned from the written complaint and the details thereof that the Commission received pursuant to section 30(1) of the Act 12.

• 20. The basic tenet of natural justice requires that parties to a dispute must be treated fairly 13 throughout the process of resolution of that dispute. In the Tribunal's view this means that not only is it unfair for the Tribunal to allow mailers to be added to a complaint that have not been investigated as has been

  held in the Equal Opportunity Commission v The Attorney General of Trinidad & Tobago and the Director of Personnel Administration, but it is for the same reasons enunciated in that case, unfair for the Commission to direct its investigation to issues (unless the complaint is amended) that do not form part of the details of the complaint lodged with it.

• 21. To comply with the Tribunal's jurisdictional constraints and the principles of natural justice, a complaint of discrimination 14/victimization 15/offensive behaviour 16 as the case may be, should be a statement of alleged wrongdoing complained of, together with the written details that support it, provided by the Complainant pursuant to section 30(1) of the Act. Even then the complaint must meet a minimum threshold of compliance with the Act 17. It is only that complaint that the Commission is empowered to investigate. Issues that trickle into an investigation of a complaint by the Commission, that are outwit that complaint (but do not form part of an amended or new complaint,) are not within the jurisdiction of the Tribunal and ought not to be admitted into evidence in proceedings before the Tribunal.”

14 The foregoing is not to disregard the fact that the ambit of the investigation will also be impacted by the respondent's answer to the complaint lodged at the Commission. The respondent's right to fairness and the right to be heard at any stage of the complaint is a fundamental tenet of natural justice. The respondent's answer joins issue with the complaint. The complaint cannot be fairly investigated without regard to the response. Indeed the subject matter of the complaint must, of necessity, comprise both the actual complaint made and the respondent's answer to it. hi this context an issue that may not have been part of the complaint that was originally lodged,...