Indra Chankasingh-Budhai v The Ministry of Food Production
| Jurisdiction | Trinidad & Tobago |
| Judge | Mr. Rajmanlal Joseph,Ms. Leela Ramdeen,Mr. Harridath Maharaj |
| Judgment Date | 11 July 2017 |
| Docket Number | E.O.T. No. 0005 of 2013 |
| Court | Equal Opportunity Tribunal (Trinidad and Tobago) |
and
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 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)
Ms. S. Singh and Mr. A. Mohammed for Complainant.
Mr. K. Ramkissoon for First Respondent.
Mr. N Byam and Ms. Thompson for Second Respondent.
The Complainant by her complaint and particulars thereof filed on February 26, 2014 wherein she contended that she was discriminated against by the agents/servants of the Respondents in refusing or deliberately omitting to afford the Complainant access to opportunities for promotion contrary to the Act due to her status of sex..
Further, that the Respondent, its servants/agents treated the Complainant less favourably than in those circumstances would treat other persons, and did so by reason that the complainant brought proceedings against the Ministry of Food Production; and/or had given evidence or information in connection with such proceedings, resulting in the Complainant being victimised contrary to the Act.
The First Respondent by its Defence filed on March 13, 2014 contended that it did not discriminate against the Complainant on the basis of her sex or by reason of victimisation. And maintained that promotion within the public service is the exclusive domain of the Public Service Commission pursuant to Section 121 (1) of the Constitution of the Republic of Trinidad and Tobago.
It is the further averment of the First Respondent that the Complainant acted continuously as Agricultural Assistant II in South Region from May 22, 1991 until May 22, 2001 and received her substantive appointment as an Agricultural Assistant II with effect from December 31, 1991. Moreover, by memorandum from the Director of Personnel Administration ( DPA) dated March 14, 2011 the Complainant was promoted to Agricultural Assistant III (AA III) on April 7, 2011 at the Research Division, La Reunion Estate, consequent on the retirement of Mr. David Waldropt.
Furtheremore, by letter dated February 23, 2012 to the DPA, the Complainant declined the promotion. The DPA by letter dated April 18, 2012 to the Complainant cancelled the promotion with effect from April 7, 2011.
In support of their positions abovementioned, the parties submitted the following witness statement.
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(a) Written Witness Statement of the Complainant dated July 28, 2014 and filed on August 29, 2014, in addition to a Supplemental Witness Statement dated March 18, 2015.
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(b) Written Witness Statement of Ahid Ali (Retired AAIII) dated and filed on April 7, 2015.
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(c) Written Witness Statement of Patrice Smith, Ag. Senior Human Resource Officer of the First Respondent, dated July 25, 2014 and filed on July 28, 2014.
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(d) Written Witness Statement of Aldwyn Wellington, Agricultural Officer I of the First Respondent, dated July 24, 2014 and filed on July 28, 2014
In essence the evidence of the Complainant was that she first started to work in the Ministry of Food Production as an Agricultural Assistant on August 1, 1978; and worked as a District Officer in the Counties of Victoria and St. Patrick. On November 30, 1993 she was made an Acting Agricultural Assistant II (AA II). And in March 30, 1994 was promoted to AA II with effect from December 31, 1991, and according to the memorandum from the Public Service Commission the Complainant was promoted in a vacancy that occurred when Ragoobir Singh (AA II) was promoted to AA III with effect from December 31, 1991. It was the contention of the Complainant that at that time Mr. Singh was stationed at the Plant Quarantine Section of the Research Division.
The Complainant further asserted that she was only sent to the Plant Quarantine Section in 2001 due to the intervention of her union. Further, by letter dated March 14, 2011 from the Public Service Commission she was promoted to AA III with effect from April 7, 2011. However, by letter dated February 23, 2012 to the Service Commission Department the Complainant rejected the promotion on the basis that she preferred to remain as an AA II in the Plant Quarantine Section of the Research Division. The Service Commission Department by letter dated April 18, 2012 informed her that her promotion to AA III was cancelled with effect from April 7, 2011.
. The Complainant maintained that the Ministry “Juggled the appointments to enable Loutan to get the job over me”. And further declared that she was discriminated against because she is a woman. Moreover, she asserted that seniority was the only thing to be considered in the promotion process and this was not done in that the proper order was not followed. It was her expectation to be promoted to the AA III position that was held by Mr. Ali at the Plant Quarantine Section; while Mr. Loutan should have been promoted to the AA III slot occupied by Mr. Waldropt in Research Section.
It is the further contention of the Complainant that she rejected the notion that promotions can only be done for employees whose performance appraisals are up to date, whether by the Public Service Commission or any other department.
The Complainant also asserted that she was being discriminated against because of being a woman for the following reasons:-
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(a) “My male counterpart, Mr. Loutan who was immediately senior to me as an AA II got the promotion that was supposed to be for me as an AA III.
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(b) I was now placed to work under him as an AA II.
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(c) Mr. Loutan ensured that I did not leave the office to do the travelling jobs or the overtime work, even though the post of AA II is a travelling one.
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(d) Mr. Loutan gave preference to the male AA II's under him in that he allowed them to come into the office at whatever time and to leave before 4p.m, to go do their overtime jobs.
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(e) I had to remain until 4p.m, at the office and then leave to do the overtime work”.
Furthermore, the Complainant stated that Mr. Rudolph Jack who was promoted to AA II in 2009 was transferred to Point Lisas ahead of her and was made to stay in Port of Spain before the Complainant went to pre-retirement leave. And that she considered that discrimination since he was less senior and not as experienced or as performance oriented as herself; and yet he was sent to the most lucrative of the stations ahead of her.
In her Supplemental Witness Statement dated and filed on March 18, 2015 the Complainant reiterated that whilst working at the Ministry promotions are done according to the seniority list. And that persons are matched to a person in a higher position and when he retires the person so matched would be promoted to that vacancy. The Complainant maintained that she was “matched” against Mr. Ahid Ali AA III. And further asserted that she was discriminated in the rotation schedule.
Mr. Ahid Ali, retired AA III gave a Witness Statement on behalf of the Complainant and contended that from his experience and observation over the years “the most senior employee in one category is appointed according to a seniority list”. And that “promotion within the Ministry are done strictly according to the seniority lists. Not on merit. The Public Service Commission even has these seniority lists”.
Moreover, Mr. Ali stated that due to the “matching” approach to promotions and that he was aware that the Complainant was the AA II to be promoted when he retired.
On behalf of the First Respondent two Witness Statements were filed, both on July 28, 2014. In that regard Patrice Smith then Acting Senior Human Resource Officer of the First Respondent contended that “neither the First Respondent nor the Human Resource Division has the authority or power to promote and make appointments to vacant offices within the Ministry…such responsibility belongs to the Public Service Commission which is guided by the Public Service Commission Regulations”. She further asserted that “promotions within the Ministry are based on seniority”. And that the composition of the said seniority listing is solely the Public Service Commission's (PSC) responsibility.
Moreover, Ms. Smith asserted that annual performance appraisal reports are vital to the promotion of an employee, and it is only when an employee's performance appraisal is up-to-date that he/she can be promoted. Further, she is aware that the PSC may not fill a vacancy immediately and that the Permanent Secretary has power delegated to him by the PSC to appoint the most senior officer to act in the vacancy, until the PSC appoints an officer permanently.
Further, she is also aware that on the voluntary retirement of David Waldropt with effect from February 2, 2009 as AA III, the PSC promoted the Complainant to that position as she was the next most senior employee. While Mr. Loutan the actual most senior person could not be promoted due to the fact that his performance appraisal reports were not up to date. But he was so promoted on November 8, 2011 upon the retirement of Ahid Ali.
The other witness for the First Respondent was Mr. Aldwyn Wellington, Agricultural Officer I who indicated that he had worked with the Ministry for 31 years and served as Agricultural Officer I since May 2004; and is responsible for the supervision of all Plant Quarantine officers at three official ports of entry into the Island of Trinidad, namely, the Piarco international Airport, the Port of Spain Port and the Pt. Lisas Port.
Mr. Wellington stated that there is a rotation system in place as regards AA IPs in plant quarantine. He maintained that the Port of Spain port was the busiest port and...
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