Kerwin Simmons v The Water and Sewerage Authority Trinidad and Tobago
| Jurisdiction | Trinidad & Tobago |
| Judge | Mr. Rajmanlal Joseph,Ms. Leela Ramdeen,Mr. Harridath Maharaj |
| Judgment Date | 28 July 2016 |
| Docket Number | E.O.T. No. 0002 of 2014 |
| 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 2014
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. Colin Selvon appeared on behalf of the Complainant
Mr. A. Khan instructed by Ms H. Gajadhar appeared on behalf of the Respondent
This matter pertains to the allegations of the Complainant, an employee of the Respondent since October 1989, that he was discriminated against by the Respondent on the basis of his race, that is, the Complainant self-identified as being of African descent. His complaint of discrimination based on race is grounded on the assertion that he was treated less favourably than another employee of the Respondent, Simon Bahaw, whom he described as being of East Indian descent.
He further asserts that he was victimised by the Respondent and that the process of victimisation began shortly after he wrote a memorandum dated November 9, 2006 requesting an investigation be conducted into Mr. Simon Bahaw's qualifications. The Complainant also contended that the victimisation process was accelerated shortly after he lodged a complaint of discrimination with the Equal Opportunity Commission (EOC) in October 30, 2012.
The Respondent, on the other hand, asserted that it did not discriminate against the Complainant on any factor, including his race, but chose the candidate Mr. Bahow, for the promotion to Network Communications Administrator solely on qualifications and suitability based on the candidate's experience in the information technology environment.
Further, the Respondent alleged that the Complainant had refused to follow lawful instructions with respect to Access and Control Security Systems of the Authority. In addition, the Respondent further alleged that it lost confidence in the Complainant to discharge his duties in a responsible and effective manner as a result of giving himself full administrative privilege to the Sym Secure Systems without authorisation. Moreover, his continued presence in the MIS was considered a potential security risk, especially as it related to the Respondent's security system.
In support of their positions hereinabove, the parties submitted the following witness statements:
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(a) Witness Statement of the Complainant dated August 28, 2015 and filed on August 28, 2015.
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(b) Witness Statement of Mr. Ronnie Spencer, Senior Manager, Administrative Services of the Respondent dated March 31, 2015 and filed on March 31, 2015.
In essence, the evidence of the Complainant is that he became an employee of the Respondent on October 25, 1989 as Clerk I and from that date, until his promotion to the position of information Technology Officer in November 2002, he was engaged in numerous responsible employment activities. However, during the periods August 1, 2005 to October 7, 2005, March 1, 2006 to April 30, 2006 and May 1, 2006 to July 31, 2006 he acted in the position of Network and Telecommunications Administrator (A.N.T.A).
The Complainant further asserted that during the periods he was in the A.N.T.A position he performed his duties without any official complaints about his ability or competence.
Nonetheless, sometime during the latter of part of 2006, he attended a meeting with the then General Manager, Information Systems of the Respondent and was informed that his acting appointment would be terminated as a result of the memorandum dated June 13, 2006 written by Mr. Simon Bahaw indicating that the Complainant did not have a degree while he, Mr. Bahaw, possessed “numerous certifications including a degree”. It was a requirement of the job that the holder must have a B.Sc. degree in Computer Science, Computers and Telecommunication or Electrical and Computer Engineering or equivalent.
Further, the Complainant was put back into his substantive position of IT Officer on August 1, 2006 and Mr. Simon Bahaw replaced him as Acting Network Telecommunications Administrator which, at that time was a senior position to that of IT Officer.
The Complainant further asserted, that sometime in 2005 Mr. Simon Bahaw contested another employee, one Mr. Francois for the position of Acting Network and Telecommunications Administrator and was not considered, since at that time, he did not have a degree. However, in 2006 he presented an Associate Degree dated 2006 and when informed that it would not suffice, he then presented a Bachelor of Science Degree dated 2004. The Complainant stated that he “became reasonably suspicious” and wrote a memorandum dated November 9, 2006 to the then Manager, Human Resource Administration, requesting that an investigation be done concerning Mr. Bahaw's qualifications.
Moreover, the Complainant received a written response from the then Deputy General Manager indicating “that an officer's qualification being questionable is a matter for the Human Resource Department”.
Thereafter, the Complainant wrote the Accreditation Council of Trinidad and Tobago (ACTT) sometime in late 2011 concerning the status of Canterbury University. By statement of recognition dated December 2, 2011, ACTT indicated that Canterbury university was “NOT Recognised by the Accreditation Council of Trinidad and Tobago”. The Complainant maintained that Mr. Bahaw's degree was not recognised in this jurisdiction. The Respondent refused to act on the information and removed Mr. Bahaw from the position of Acting Network and Telecommunications Administrator.
The Complainant further maintained that he made numerous complaints to the Respondent but there were no positive responses, but insisted he was victimised by the respondent due to the fact that he was transferred out of the MIS Department to the Transport Department where his skills and qualifications in information technology would not be properly utilised. To be sure, he asserted that he was approached to take voluntary Early Separation Programme (VSEP) which he rejected. He also alleged that the Respondent tried to get rid of him by insinuating that he was mentally ill.
The Complainant contended that he was treated unfairly, discriminated against because of his race and that the Respondent began a process of victimisation when he would not abandon his position that Mr. Bahaw should be removed from the position of Acting Network and Telecommunications Administrator, and that he should be put back into the said position. This witness was cross-examined in extensive details and apart from being confused about certain dates, the Tribunal found him to be a reliable witness, who appeared to us to be in reasonably full control of his mental faculties. In short, he was overall a credible witness.
The respondent's evidence on the other hand was presented by way of a Witness Statement of Mr. Ronnie Spencer, Senior Manager, Administrative Services of the Respondent dated March 31, 2015 and filed on the said day. He indicated that he started his employment with the Respondent as a Management Trainee on November 1, 1993 and thereafter received a series of promotions culminating in his current position, which he has been holding since April 1, 2013.
In his evidence he outlined the Complainant's employment progress within the organisation. He indicated that from the records he examined, the Complainant acted as Network Telecommunications Administrator for the period August 1, 2005 to October 7, 2005 and for the period May 1, 2006 to July 31, 2006. He maintained that there is no record of the Complainant acting for the period March 1, 2006 to April 30, 2006.
This witness asserted that acting arrangements within the Respondent are governed by the Collective Agreement and Department Circulars.
He further indicated that the Respondent received a memorandum dated June 14, 2006 from Mr. Bahaw questioning the Complainant's qualifications to hold the position of acting Network Telecommunications Administrator, which said position, at a minimum required the holder to have a first degree in computer Science, Computers and Telecommunication or Electrical or Computer Engineering or the equivalent. The Complainant did not possess the appropriate first degree, and Mr. Bahaw was appointed to act as Network Communications Administrator on August 1, 2006. The Complainant was reverted to his substantive position of Acting Information Technology Officer on July 31, 2006.
Subsequently, the Complainant wrote a memorandum dated November 9, 2006 requesting that an investigation be conducted into Mr. Bahaw's qualification. Prior to this however, the then Deputy General Manager wrote a memorandum of July 7, 2006 to the General Manager, Human Resources, requesting that the Bachelor Degree Program for which Mr. Bahaw was awarded a certificate be verified as accredited.
Just over six (6) months after the aforesaid memorandum was written, the then Manager, Human Resources Administration (Ag.), wrote a memorandum dated January 31, 2007 to Mr. Simon Bahaw requesting that he obtain verification from the Accreditation Council of Trinidad and Tobago regarding the status of his Bachelor of Science Degree in Information Technology from Canterbury University, and to identify the local educational institution in which he was enrolled while pursuing the course of study leading to the award of the said degree. In addition, Mr. Bahaw was required to submit the aforesaid information by February 28, 2007. Failure to so do “will result in the termination of your acting appointment”.
In response to the memorandum from the Manager, Human Resources Administration, Mr. Bahaw replied by memorandum dated February 26,...
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