Derek Salandy v The Petroleum Company of Trinidad and Tobago (Petrotrin)
| Jurisdiction | Trinidad & Tobago |
| Judge | Mr. Rajmanlal Joseph,Ms. Leela Ramdeen,Mr. Harridath Maharaj |
| Judgment Date | 14 September 2017 |
| Docket Number | E.O.T. No. 0002 of 2012 |
| Court | Equal Opportunity Tribunal (Trinidad and Tobago) |
His Honour Mr. Rajmanlal Joseph — Judge/Chairman
Her Honour Ms. Leela Ramdeen — Lay Assessor
His Honour Mr. Harridath Maharaj — Lay Assessor
E.O.T. No. 0002 of 2012
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)
Mr. Shankar Bidaissee appeared on behalf of the Complainant
Mr. Russell Martineau, S.C., appeared on behalf of the Respondent
This case concerns the allegation of the Complainant that he was continuously discriminated by and/or treated unequally by the Respondent in regard to his employment and more specifically his remuneration package contrary to Sections 8 and 9 of the Equal Opportunity Act, Chap. 22:03
Further, the Complainant seeks compensation for being treated less favourably than Mr. Brett. In addition to declarations that the Respondent contravened its own employment policy in the manner of hiring of Mr. Brett; and a further declaration that the Complainant was treated illegally and/or unfairly, and discriminated against by the Respondent on the basis of race and/or origin and/or ethnicity and/or nationality. As well as costs and interest.
The Respondent on the other hand, denied that it discriminated against the Complainant pursuant to Sections 8 or 9 of the Act. And that there was no discrimination against the Complainant in employment on the ground of status or victimisation under the Act. Moreover, it is the further contention of the Respondent that the Complainant is not entitled to any of the reliefs claimed in his Amended Complaint and Particulars.
In support of their positions as outlined hereinabove, the parties submitted the following witness statements:
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(a) Witness Statement of the Complainant dated and filed on October 2, 2012
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(b) Witness Statement of Carrol Jarvis dated and filed on October 1, 2012; and Supplemental Witness Statement of Carrol Jarvis dated and filed on October 14, 2015.
Essentially, the evidence of the Complainant was that he is a citizen of Trinidad and Tobago, and is permanently employed with the Respondent as a Process Engineering Superintendent in the Refining and Marketing Division at Point-a-Pierre; and have been in the employ of the Respondent since August 11, 1980, and has in his current position since May 1, 2001.
It is the Complainant's eontention that on April 23, 2007 the then Chief Process Engineer sent out an email to persons in the Operation and Process Engineering Department advising that one Luis Cuauro Brett was employed by and/or joined the Respondent as the Process Engineering Superintendent — Heavy Oils, effective April 23, 2007.
The Complainant further avers that at all material times Mr. Brett was a Venezuelan national who had no citizenship or residence status in Trinidad and Tobago; and while they were both qualified to hold the position of Process Engineering Superintendent he (the Complainant) had more experience that Mr. Brett. Additionally, the position of Process Engineering Superintendent-Heavy Oils is a position in the approved organization structure of the Respondent.
The Complainant maintained that he spent 32 years in the Process Engineering Department, that is, from August 1980 to 2012. And before the Respondent was formed in 1993 the aforesaid position of Process Engineering Superintendent has always been fihed and occupied by citizens and nationals of Trinidad and Tobago, not foreign nationals. He further indicated that he held the position of Process Engineenng Superintendent since May 1, 2002 five (5) years before Mr. Brett joined the Respondent. And at all times Mr. Brett was employed and was working as a Process Engineenng Superintendent, a position same as and/or materially similar to his, if not identical, and they performed similar functions.
It is the contention of the Complainant that Mr. Brett had received, checked or signed off on numerous Processing Engineering Reports and Signed same as Process Engineering Superintendent. In addition, while he (the Complainant) served as Acting Chief Process Engineer on several occasions, Mr. Brett reported to him on several occasions while performing the functions of Process Engineering Superintendent.
Furthermore, the Complainant posits that as far as he is aware there is no position on the organizational structure referred to as “Process Engineering Consultant” which Mr. Brett is alleged to have been employed as. At all times he signed as Process Engineering Superintendent and carried out functions akin to this position, just as he (the Complainant) did. To be sure, the Complainant maintained that Mr. Brett was not hired as a consultant but as an employee. And pointed out that on an occasion he co-signed Mr. Brett's application for annual leave which only employees are entitled to do. Further, the Respondent produced “call cards” for Mr. Brett bearing the Respondent's logo in which Mr. Brett was described as a “Process Engineering Superintendent-Heavy Oils”. And was given a company cell phone and pager all of which are only given to employees.
The Complainant further asserted that as at April 2007, Mr. Brett's base monthly salary was $51,487.00. Mr. Brett also received the use of a new leased vehicle at a rate of $4,926.60 per month which was paid for by the Respondent. And received a gratuity of $15% of his salary calculated to be $7,723.00 per month. Mr. Brett also had free accommodation for himself and his family of a 3–4 bedroom house, which in the Complainant's opinion was of a rental value of $10,000.00 per month, which said residence had unlimited access to all amenities on the Respondent's Compound, including swimming pool, tennis and squash courts, club house, restaurant and bar and security which were never afforded to the Complainant. Mr. Brett further received $500.00 of gasoline per month; and enjoyed all these benefits for approximately 42 months. On the other hand, the Complainant put forward the position that as at April, 2007 he received a base monthly salary of $24,334.00, a travel plan of $650.00 per month, travelling allowance of $4,500.00 per month, a pension plan payment of $3,406.76, and savings plan payment of $730.02. The Complainant further declared that he did not receive any monies from the Respondent for any medical plan, but instead contributed to a group plan.
The Complainant further asserted that he brought this disparity between Mr. Brett's remuneration package and his own to the Respondent's General Manager (Refinery) during the latter half of 2007 without any positive result. The Complainant further observed that the position of Process Engineering Superintendent was never advertised in the local newspapers, which precluded nationals of this country the opportunity of applying for the said position. The Complainant also indicated that by not advertising the aforesaid position the Respondent breached its recruitment policy/procedure guide.
The Complainant averred that he met with the then Chairman of the Respondent and other high ranking officials to have this matter resolved without success. And in spite of his representations Mr. Brett's contract was renewed for another two years in April 2009.
Having been unable to have the Respondent's management resolved this matter, the Complainant made a complaint to the Equal Opportunity Commission (EOC). And subsequently wrote the then Minister of Energy and Energy Affairs but even though a report was generated, his matter remained unresolved. Moreover, this witness was comprehensively cross-examined by counsel for the Respondent and his responses were straightforward and consequently the Tribunal found this witness to be credible.
The Respondent's evidence on the other hand was presented by way of a Witness Statement of Carrol Jarvis, then Head, Human Resource Services (Ag.) dated and filed on October 1, 2012; and her Supplemental Witness Statement dated and filed on October 14, 2015.
In essence Ms. Jarvis averred that Mr. Brett was engaged on contract as a “Process Engineering Consultant” by the Respondent with effect from April 23, 2007. This witness put forward the position that this position required a higher level of skills. And based on the assessment of the current Process Engineering Superintendents, no one within the Respondent was found to have demonstrated the skills required. Ms. Jarvis maintained that the preferred candidate was required to transfer skills/knowledge to the younger engineers in the Optimization Department. This included the provision of technical assistance and coaching for Process Engineers within the Hydro-processing., Conversion, Distillation, Utilities and Oil Movement area.
Furthermore, this witness advanced the position that the post of Process Engineering Consultant was not advertised having regard to the difficulty previously experienced by the Respondent in filling engineering positions for Reservoir Engineers, Chemical Engineers, Petroleum Engineers and Mechanical Engineers. The method used in the recruitment of the position of Processing Engineering Consultant was as follows:
A job profile was prepared outlining the requirements of this temporary function; the Senior Managers in the organization were made aware of and provided with the profile of the position, names were provided by managers and also from the resident Consultant Shell Global Solutions. Ms. Jarvis further indicated that five (5), persons were selected for consideration and Mr. Vales was offered the position but declined.
Ms. Jarvis further asserted that the Respondent engaged the services of a local recruitment agency, Personnel Management Services Limited (PMSL) as well as consulted with senior...
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