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 | 30 June 2016 |
| 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 Bidaisee appeared on behalf of the Complainant
Mr. Russell Martineau, S.C appeared on behalf of the Respondent
This case concerns the allegation by the Complainant that he was discriminated against by the Respondent on the basis 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, Chapter 22:03”.
For the purpose of this decision it is not necessary to delve into all the particulars of his complaint except to indicate that the Tribunal at this stage is only required to give a ruling on a preliminary point raised by the Respondent that the Complainant had lodged his complaint outwith the six (6) month limitation period as established by Section 30 (2) of the Equal Opportunity Act, Chap. 22:03 (the Act). And that his complaint should be dismissed.
The essence of the submissions of the Counsel for the Respondent are as follows:
The hiring of Mr. Brett (a foreigner) on April 23, 2007 constituted the date of the alleged act of discrimination. However, the complainant only lodged his letter of complainant to the Equal Opportunity Commission (EOC) on August 12, 2008. And that pursuant to Section 30 (2) of the Act the prescribed six (6) month period began to run from that date, and therefore his complaint was outwith the limitation period; and there were no “exceptional circumstances” for the Commission to extend time.
In addition, the concept of a “continuing breach” as advanced by the Commission is without substance, since there is no analogous provision in our Act as exist in the English Race Relations Act, which makes express provision for the treatment of such an act as extending throughout the duration of the contract; and cited Hendricks v Metropolitan Police Commissioner [2003] 1 ALL ER 654 and Sougrin v Haringey Health Authority [1992] IRLR 416 as authority for that proposition.
Essentially, the position of counsel for the Complainant was that the act complained of was a continuing one and in any event when the Respondent had participated in the conciliation process at the Commission, it had waived the raising of any question of delay. In addition, Counsel adopted the authorities cites by the Commission in their statement filed (with leave of the Tribunal) on March 14, 2016; in particular the following cases:
-
(a) Hon. Partick Manning and 17 Others v Chandresh Charma [2009] UKPC 36
-
(b) Mazibuko and Cebekhulu v The State [2010] 1 SACR 433
-
(e) Calder v James Finlay Corp. Ltd [1989] IRC 157
(a) Whether the Complainant's complaint was lodged with the Equal Opportunity Commission outside the limitation period established by Section 30 (2) of the Act.
(b) Whether the act complained of was a continuing act or a single act of alleged discrimination with continuing consequences.
In order to deal with the first issue hereinabove, it is useful to set out Section 30 of the Act in its entirety:
“30 (1) A person who alleges that some other person has discriminated against him or has contravened section 6 or 7 in relation to him may lodge a written complaint with the Commission setting out the details of the alleged act of discrimination.
(2) A complaint under subsection (I) shall be lodged with the Commission within six (6) months from the date of the alleged act of discrimination.
(3) Notwithstanding subsection (2), the Commission, in exceptional circumstances, may accept a complaint which is lodged more than six (6) months after the date of the alleged act of discrimination”.
It is clear from a plain reading of Section 30 that it has created a limitation period of six (6) months for the alleged act of discrimination. In addition, subsection (3) allows the Commission to extend time, providing that there are exceptional circumstances to so do.
It is the contention of Counsel for the Respondent that “the prescribed six (6) month period began to run from April 23, 2007, so that when the complaint was made on August 13, 2008, the six (6) month period had expired some 9 1/2 months before. Counsel for the Respondent submitted that the date of the alleged act of discrimination was April 23, 2007, but provided not one scintilla of evidence in support.
Further, at paragraph 1 (iii) of its defence the Respondent indicated that:
“The Complaint of the Complainant of discrimination against him was not lodged with the Commission within six (6) months from the date of the alleged discrimination as required by Section 30 (2) of the Act and there are no exceptional circumstances to justify acceptance of the late complaint as required by Section 30 (3) of the Act”.
It is clear from a reading of the Commission's Report dated November 3, 2010 that the Commission never addressed its mind...
To continue reading
Request your trial