Dindial Ragoo v Ministry of Food Production
| Jurisdiction | Trinidad & Tobago |
| Judge | Mr. Rajmanlal Joseph,Ms. Leela Ramdeen,Mr. Harridath Maharaj |
| Judgment Date | 21 July 2017 |
| Docket Number | E.O.T. No. 0006 of 2013 |
| 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. 0006 of 2013
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 Kevin Ratiram appeared on behalf of the Complainant
Mr Kelvin Ramkissoon appeared on behalf of the Respondent
The Complainant by his Complaint and Particulars thereof filed on April 9, 2014 averred that he was discriminated against by the agents/servants of the Respondent, in refusing or deliberately omitting to afford the Complainant access to opportunities for promotion, and subjecting him to detriment contrary to the Act due to his race.
In addition, the Complainant contended that he was discriminated against by the agents/servants of the Respondent, in that he Complainant was treated less favourably than in those circumstances the said agents treated or would treat other persons, and did so by reason of his race.
It was the further contention of the Complainant (who describes himself as a persons of East Indian descent) that he was discriminated against for promotion to the position of diesel mechanic in favour of Mr. Noellyn Paul (who the Complainant identified as a person of African descent).
The Respondent in its Defence filed on April 22, 2014 contended that based on a meeting of March 10, 2010 between representative of the Respondent and the National Union of Government and Federated Workers (NUGFW); it was decided that Mr. Noellyn Paul would be appointed to Act in the position of Diesel Mechanic and be given a probationary period of six months and that an Appraisal Report was scheduled to be conducted on his performance after this six months probation.
Moreover, it is the further assertion of the Respondent that the Complainant was not discriminated against on the basis of his race or at all. And that the acting position that Mr. Paul was placed into was in accordance with the Collective Agreement in particular Article 20.2 (the Promotion Policy), Article 20.2.1 (Ability and Experience) and Article 20.2.2 (Seniority). And furthermore, that all decisions made by the Respondent were fair and consistent with its procedures and policy, and therefore, all allegations made by the Complainant are untenable.
In support of their respective positions hereinabove the parties submitted the following witness statements:
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(a) Witness statement of the Complainant dated and filed on May 14, 2014
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(b) Witness Statement of Mr. Alfonso Roper, Agricultural Assistant III, dated and filed on May 29, 2014, made on behalf of the Respondent.
Essentially, the evidence of the Complainant was that he began his employment with the Respondent in January, 2008 as a daily-rated class 22 Driver. At that time his comparator Mr. Noellyn Paul (who is of African Descent) was also employed at the Horticultural Services Division as a Labourer.
He further indicated that in March 2010 he knew one Mazarus Ali who was employed in his Division as a Diesel Mechanic and is also of East Indian descent. He also knew Richard Paul brother of Noellyn Paul who was promoted ahead of Mr. Ali. He maintained that the minutes of a meeting held on March 10, 2010 between representatives of the Respondent and the NUGFW it was stated that Mr. Ali was in line for promotion and it was agreed for him to be so promoted, thereby causing the position of diesel mechanic to be vacant.
The Complainant additionally averred that the minutes also stated that Noellyn Paul was considered as a replacement for Mr. Ali. At that time Noellyn was a gas mechanic, having been promoted to that position in December, 2008. And he was to be on probation for six months, thereafter he would be assessed to determine if he was capable of performing the duties of diesel mechanic. Further, it was suggested that the said assessment be done by a qualified independent body possibly an engineer from the Land and Water Development Division. By October 2010 Noellyn Paul was assessed by Mr. Ali “as being technically different in his skills and knowledge as a mechanic…..and was not ready to be promoted to the next level”.
The Complainant further contended that according to the said minutes Mr. Walkes, then PIRO III of the Respondent stated that the post of Diesel Mechanic should be advertised internally. And shortly after this meeting the post was advertised and by his application of March 17, 2010 he applied for the said post. At that time he had the following qualifications:
He also indicated that Mr. Noellyn Paul's qualification were as follows:
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(i) Electronic Fuel Injection, School of Continuing Studies, UWI
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(ii) Certificate of Completion, Introduction to Hydraulics
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(iii) Certificate of Completion, Autotronics
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(iv) Electronic Diagnostician Training Programme
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(v) Four (4) CXC Subjects
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(i) N.C.E. Craft Certificate, Auto and Diesel Craft, JSD Technical Institute
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(ii) Gasoline Fuel Injection, Level I
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(iii) Four (4) CXC Subjects
The Complainant further asserted that during the period March 2010 to December 2010 he made verbal inquiries of Mr. Roper as to the status of his application, but on every such occasion he would state that he was awaiting a response from the Human Resource Department. However, by January 2011 the Director of his Division wrote the Permanent Secretary seeking to have him act in the then vacant post of diesel mechanic. And by memorandum dated January 26, 2011 the Permanent Secretary indicated that approval had been given to him to act as diesel mechanic with effect from January 7, 2011 and continuing until further notice.
The Complainant maintained that he expected his then manager, that is, Mr. Roper to inform his of the approval to act as diesel mechanic, but was never so informed; and only inadvertently discovered about the approval in February 2011, but was never allowed to so act even though he complained to his shop steward, and wrote the Permanent Secretary a letter dated November 11, 2011 indicating the “run around” he was getting.
Further, the Complainant stated that Mr. Ali died on July 3, 2012 and had he been promoted to the post of diesel mechanic he would have been next in line for the position that was held my Mr. Ali. And that he is of the firm belief that he was never allowed to act in the position of diesel mechanic due to his race; while Noellyn Paul was unfairly given the opportunity to train for the post of diesel mechanic ahead of him and allowed to act in that position because of his race.
The evidence of Mr. Alfonso Roper on the other hand indicated that he was an Agricultural Assistant III attached to the Botanic Gardens Branch of the Horticultural Service Division of the Respondent. He asserted that some of his duties include managing operation in the Horticultural Services Division, and instructing staff including foremen.
He further stated that he attended a meeting on March 10, 2010 with other representatives of the Respondent and representatives of the NUGFW, to continue discussions to review the permanent establishment; and made reference to the minutes of this meeting.
He further maintained that as Agricultural Assistant III he took part in the discussions but did not make decisions as to who is to be promoted. There is a process whereby discussions between the representatives of the Respondent and the NUGFW engage in to arrive at those employees eligible for promotion. He put forward the position that promotion is governed by the Collective Agreement which provides for the employer to fill a vacancy after agreement with the union.
He contended that at this meeting “one of the issues discussed was that in 2007,
Mr. Richard Paul was promoted to Charge hand CME (Civil, Mechanical and Electrical). At this time in 2010, there were only two positions for CME. These were already filled. However, in order to ensure the smooth running of the Division, another position was deemed necessary for a CME. Mr. Mazarus Ali was placed in the position of CME. Therefore, there were now three positions for CME in the Horticultural Services Division”.
He advanced the position that as Mr. Ali was promoted the diesel mechanic position became vacant. “It was decided at the meeting that Mr. Noellyn Paul would be promoted to the position of Diesel Mechanic as he was the next person in line for this position, and that he should be given a probationary period of six months in this position, after which he would be assessed independently by with a representative of the Ministry of Works or a representative of the Engineering Division within the MOFP”. He also mentioned that during the said six months probationary period Mr. Ali would supervise Mr. Noellyn Paul.
Mr. Roper further declared that in early January 2011, on his first day back on the job after three (3) months vacation leave he was approached by the Complainant who informed him that he had to act as diesel mechanic from that day. He told the Complainant that he could not act as the diesel mechanic until the appraisal of Mr. Paul was completed. And that a date needed to be set for the appraisal of Mr. Paul and the Division needed to engage the services of an independent person to do the evaluation.
This witness further asserted that while he was on vacation leave Mr. Ali did the appraisal of Mr. Noellyn Paul; this he maintained was inconsistent with the decision made at the meeting of March 10, 2010 between the Respondent and the NUGFW. He pronounced that Mr. Ali was a charge hand CME at the time, was not an independent person for the purpose of the assessment and therefore, he was not supposed to do the evaluation of Mr. Paul.
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