Desmond Noel v The Auditor General of Trinidad and Tobago
| Jurisdiction | Trinidad & Tobago |
| Judge | Mr. Rajmanlal Joseph,Ms. Leela Ramdeen,Mr. Harridath Maharaj |
| Judgment Date | 15 September 2017 |
| Docket Number | E.O.T. No. 0005 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. 0005 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. Delzin instructed by Ms. Sylvester appeared on behalf of the Complainant
Ms. Nabbie and Ms. Boxhill appeared on behalf of the Respondent
This case is concerned primarily with the allegation by the Complainant that he was discriminated against by the Respondent contrary to Sections 5(a) and 9(b) of the Equal Opportunity Act, Chap. 22:03, in the way that, in circumstances that are the same or not materially different, the Respondent has treated the Complainant less favourably than persons of a different race, by the Respondent's refusal and/or deliberate omission to afford the Complainant access to the opportunity to act in the post of Audit Director during the periods as follows:
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(i) 17 th February 2010 to 8 th April 2010
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(ii) 10 th May 2010 to 15 th July 2010
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(iii) 8 th June 2010 to 19 th July 2010; and
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(iv) 16 th August 2010 to 9 th December 2011.
In addition, the Complainant is seeking a Declaration that the Respondent has victimised the Complainant contrary to Section 6(d) of the Equal Opportunity Tribunal Act, Chap. 22:03, in the way that, the Respondent has treated the Complainant less favourably than in those circumstances the Respondent treats or would treat other persons and has done so by reason that the Complainant has alleged that the Respondent has committed an act, which (whether or not the allegation so states) would amount to a contravention of the Act. And further the Complainant is also seeking damages including aggravated and/or exemplary and/or vindicatory damages.
On the other hand, the Respondent by its amended Defence filed on September 30, 2013 indicated that the Respondent did not discriminate against the Complainant on the basis of his race in terms of not being recommended to act in the next higher position during the periods outlined in his Complaint and Particulars thereof. Moreover, it is the position of the Respondent that the Complainant was never victimised; and that he was not recommended to act in the next higher position was due to his poor performance record.
With reference to their respective positions hereinabove the parties submitted the undermentioned Witness Statements:
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(a) Witness Statement of the Complainant filed on September 30, 2013.
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(b) Witness Statement of Sharman Ottley filed on September 30, 2013
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(c) Witness Statement of Reahla Balroop filed on September 30, 2013
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(d) Witness Statement of Shiva Sinanan filed on September 30, 2013
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(e) Witness Statement of Elizabeth Ann Mofford Benjamin filed on September 30, 2013
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(f) Witness Statement of Gaitrie Maharaj filed on September 30, 2013.
Essentially, it is the evidence of the Complainant that he began his employment at the Auditor General's Department at the entry level in the Technical Class and on October 10, 2000 he received a letter of even date from the Service Commissions Department appointing him Auditor Examiner Assistant I, Auditor General's Department with effect from 14 th June, 1999.
The Complainant indicated that throughout his working life at the Auditor General's Department he applied himself conscientiously to be a better auditor. In that regard he wrote and was successful in the final examinations of the Association of Chartered Certified Accountants (ACCA) in December, 1999. He maintained that he was the only person in the Department who passed those examinations in that sitting. And was subsequently recommended to act as Audit Senior with effect from May 15, 2000. After him the following officers passed the ACCA final examinations: Jennifer Lutchman, Nela Dwarika Ali, Anisha Baksh and Cheryl Ann Wright.
This witness stated that he took steps to further develop himself by attending a number of training courses, taken examinations and became a member of professional bodies; and at the time of doing his witness statement he was reading for the Henley Masters in Business Administration (2008–2013). He forcefully pointed out that he used his personal funds for all these examinations and training; and retained membership in the ACCA, ISACA, Institute of Chartered Accountants of Trinidad and Tobago (ICATT) and Institute of Internal Auditors (IIA).
He further asserted that throughout his tenure at the Auditor General's Department he consistently received very good Annual Performance Appraisals. The exceptions being the Appraisal done by Mr. Gary Peters (a person of East Indian descent) for the period June 14, 2002 to June 14, 2003 which was subsequently overturned by the Assessment Appeal Committee. In addition to another Annual Performance Appraisal for the period June 2008 to 2 nd June 2009 done by Mrs. Mofford Benjamin in which she indicated that “the officer is not yet ready to perform duties of the higher level”. The Complainant appealed his Appraisal and the Assessment Appeal Committee by its report dated January 31, 2011 set aside the box 3 performance rating of “good” to box 2 “very good”.
The Complainant exhibited some of his Annual Performance Appraisals in which he asserted that in one of his reports he received a very good assessment in which his strengths were:
“displayed excellent people management skills and conflict resolution solution.
Good analytical ability and good supervisor” And he was deemed fit to be promoted to the next higher level. These were all contained in his Annual Performance Appraisal for the period June 2011 to 2 nd June, 2012. Further, in his 2006 Annual Performance Appraisal the then Assistant Auditor General Ms. Pujadas-Charles identified his major strength as follows:
“very good investigating techniques;
Willingness to learn;
Takes constructive advice, and his performance rating was rated as very good”. Moreover, his career prospects/potential was that “The Officer is now capable of performing duties/responsibilities of a higher level”.
However, the Complainant also indicated that having met the requirements for the Audit Director position, he acted Audit Director each year from 2004 to 2009 as long as he was in line for the acting period and the acting was for more than three weeks.
The Complainant further stated that in 2006 Ms. Ottley was appointed Auditor General and in 2010 during a meeting with the Public Service Association (PSA) she indicated inter alia that the officers in San Fernando did not wish to work with him and preferred to do the work themselves. However, she did not give him an opportunity to know his accusers and defend himself against allegations made. He maintained that she was very vague and did not identify any of the persons by name or office. On account of his good relationship with staff at the South Branch, he had his misgivings about these allegations as not one officer was identified in support of her allegations.
Furthermore, on December 2, 2009 the Complainant stated that he was summoned by the Auditor General and was told that two Assistant Auditor Generals Mrs. Benjamin and Ms. Maharaj complained to her that they could not work with or supervise him. The Complainant indicated that he was disturbed because he told the Auditor General that Ms. Maharaj had given him good appraisals and that she had not reviewed a single file when he stopped reporting to her.
In addition, the Complainant indicated that the technical and professional class in the Auditor General Department (AGD) are unique to it; in that there is no external competition when vacancies arise in these offices. The vacancies can only be filled by officers within the Auditor General's Department. The exception being if the AGD goes through the process and takes in persons at the entry levels. However, in Staff Notice 05 of 2010 it was indicated that Mr. Shiva Sinanan was proceeding on vacation leave but it failed to mention that Ms. Dwarika Ali was to “hold on” for Mr. Sinanan. He maintained that if the Department had taken a legitimate management decision not to recommend anyone to act in the office of Audit Director, then he should be asked to “hold on” before Ms. Dwarika Ali as he was senior to her but it was their intent to treat him less favourably because of his race, being of African Descent while Ms. Dwarika Ali is of East Indian descent.
Furthermore, the Complainant indicated that he was treated less favourably than Ms. Balroop who is of East Indian descent; in that they have comparable staff appraisals at the level of Assistant Audit Director (AAD) yet she was recommended to act but he was not. In addition, after working with Ms. Maharaj in Division 2 over the period 9 th October 2008 to 30 th January, 2009 (77 working days) and again from 11 th September, 2009 to 2 nd October, 2009 (15 working days) she was able to determine that he was not only not suitable to act Audit Director but to perform in his substantive office as Assistant Audit Director. Ms. Maharaj made this profound determination although she had given him very good assessment over the related periods. Not only that, she did all of that without first reviewing a single audit report of his submitted during the period 11 th September to 2 nd October, 2009. The Complainant averred that the ten prior years working in the Department and year after year getting positive staff appraisals, undergoing training and gaining qualifications to develop himself; he was the only person in her division not fit to be promoted. The Complainant maintained that any East Indian with his qualification, experience and performance appraisals would have been...
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