Moriba Baker v The University of Trinidad and Tobago

• Jurisdiction: Trinidad & Tobago
• Judge: Madame Justice Donna Prowell-Raphael
• Judgment Date: 19 November 2020
• Court: Equal Opportunity Tribunal (Trinidad and Tobago)
• Docket Number: E.O.T. No. 0004 of 2016
• Date: 19 November 2020

IN THE EQUAL OPPORTUNITY TRIBUNAL

Before:

Madame Justice Donna Prowell-Raphael

Lay-Assessor Leela Ramdeen.

E.O.T. No. 0004 of 2016

Between

Moriba Baker

Complainant

and

The University of Trinidad and Tobago

Respondent

APPEARANCES:

Mr. Lennox Marcelle for the Complainant.

Mr. Dayle Connelly for the Respondent.

Contents

The Proceedings	3
Issues	3
Evidence	4
The Complainant's Evidence	4
The Respondent's Evidence	6
Analysis and Law	8
The Time-barred Issue	8
The Discrimination Complaint	10
The Victimisation Complaint	20
Costs	23
Disposition	23

The Proceedings

1 In his complaint filed on November 16 ^th, 2016 (‘the Complaint’) the complainant claims that the respondent, his former employer has discriminated against, and victimised him at the workplace, and as a result terminated his employment. He claimed compensation, damages, and costs. The complainant averred in the Complaint that there were four (4) “aspects” of the Complaint. Two (2) of these were already determined in the Decision on Preliminary Issues dated February 13 ^th, 2019. The remaining aspects are –

• a) Discrimination by the respondent in not being selected and promoted to the post of Senior Manager, Sports and Recreation, (‘Senior Manager’) having acted in this position for approximately eleven (11) months and having the required experience and qualifications as required by the Job Description” (‘the discrimination complaint’); and

• b) Victimisation because the complainant lodged a complaint against the respondent at the Equal Opportunity Commission (‘the Commission’) and being terminated because of this complaint” (‘the victimisation complaint’).

2 The respondent, in its Defence filed on November 20 ^th, 2016 (‘the Defence’) denied that the complainant was discriminated against or victimised as alleged and that the complainant was entitled to any of the relief sought.

Issues

3 The following issues arise for determination—

• a) Whether the Complaint is time-barred and ought to be dismissed;

• b) Whether there was discrimination by the respondent in the selection process for the position of Senior Manager, and the respondent's ensuing non-selection of the complainant for the position; and

• c) Whether there was victimisation in the complainant's termination because he lodged the Complaint at the Commission.

Evidence

4 The complainant filed one (1) Witness Statement on his own behalf on December 23 ^rd, 2016. He was cross-examined by Counsel for the respondent on it.

5 On behalf of the respondent—

• a) Leah Ramgattie provided a Witness Statements dated December 23 ^rd, 2016, and a supplemental Witness Statement dated April 30 ^th, 2019. She was cross-examined by Counsel for the complainant on them.; and

• b) Arlene Nicole Connor provided a Witness Statement dated April 30 ^th, 2019. Counsel for the complainant declined to cross-examine her.

The Complainant's Evidence

The Complainant

6 Through his Witness Statement the complainant testified that –

• a) The complainant was first employed as an Assistant Sports Coordinator from the January 1 ^st, 2007. He acted in the position of Executive Manager – Academy of Sports and Leisure Studies from October 2011 – October 2012. The position of Executive Manager was renamed Senior Manager of Sports and Recreation in October 2012. Thereafter he continued acting in that position up to August 2013, when he proceeded on vacation. On February 21 ^st, 2014 he entered into a contract as Senior Instructor.

• b) He was paid $28,350.00 per month in the position of Senior Manager.

• c) In March 2013, while he was acting in the position of Senior Manager, it was advertised. He applied for the position and was short listed and interviewed. He asserts that he possessed all the required qualifications and experience for the position as indicated by the Job Description and evidenced by his Resume.

• d) On Sunday November 3 ^rd, 2013 he stumbled upon a local newspaper article which indicated that the comparator was awarded the position of Senior Manager.

• e) By letter dated December 2 ^nd, 2013 the complainant was informed by the respondent that he was not selected for the position of senior Manager. He stated at paragraph 17 of his Witness Statement –

  “I felt treated less favourably in the time frame and manner of UTT's [the respondent] update of my application for the post of Senior Manager and I felt greatly discriminated against by the overlooking and non-selection of myself for the position having satisfied the requirements as described in the Job Description and having acted continuously in the position for eleven (11) months. In addition, the selection of an external applicant in the form of [the comparator] was contrary to the UTT's [the respondent] policy as referenced; of utilizing internal applicants and only external applicants when a suitable internal applicant could not have been found or meet the job specifications.”

• f) He submitted the Complaint to the Commission on May 26 ^th. 2014.

• g) He was dismissed by letter dated October 1 ^st, 2014 upon the conclusion of certain parallel disciplinary proceedings. The dismissal is the subject of the victimisation complaint.

7 In cross examination —

• a) The complainant identified his name as one of the recipients on an email dated October 3 ^rd 2013 1, which was purportedly sent to him and Mustaque Mohammed and referenced the comparator starting work on Monday October 7 ^th. 2013. The complainant stated that he could not remember if he had received that email.

• b) The complainant was shown a Memo dated October 16 ^th 2013 2 that was issued by the Vice President Human Resources to all members of staff of the comparator and published via intranet announcing the appointment of the comparator to the position of Senior Manager with effect from Monday October 7 ^th 2013. The complainant stated that he did not recall seeing it.

• c) The complainant was also shown a copy of Minutes of High-Performance Unit Meeting dated Wednesday October 30 ^th 2013 3, in which both the comparator and he were signatories as attendees. The complainant testified that he had no recollection of attending that meeting.

• d) When the comparator assumed duty on the October 7 ^th, 2013 although he was still a member of the Academy of Sport and Leisure Studies, he reported to Professor Paul Blair as part of the Academic Unit (and not to the comparator). The complainant admitted that he may have been aware of the appointment of the comparator prior to the said November 3 ^rd, 2013 newspaper article, but he was not aware of his qualifications before he read the article on that day.

• e) The complainant testified that although there were two (2) applicants who had been awarded higher scores than his, both were external candidates. The respondent had a policy of only sourcing employees externally if it could not find a person internally with the required skills, qualifications, and experience. The complainant was not sure whether he had filed any document referring to the said policy but suggested that the respondent's witness could speak to the policy.

The Respondent's Evidence

Leah Ramgattie

8 Ms. Ramgattie testified that she was the Senior Manager Human Resources of the respondent.

9 At paragraph 4 of her Witness Statement Ms Ramgattie stated –

“The complainant has alleged that his non-selection for the position of Senior Manager, Sport and Recreation amounted to discrimination against by reason of his race/ethnic and family origin. However, the complainant was short-listed from among a large number of candidates who responded to the advertisement for the position and was interviewed along with six (6) other candidates. Although the complainant surpassed the minimum score for selection, he did not attain the highest score in the

interviews and placed third overall as is set out in the Interview Report.”

10 At paragraph 3 of her supplemental Witness Statement Ms. Ramgattie further testified that the Board of Governors of the Respondent approved a recommendation that the comparator be appointed to the position of Senior Manager. Pursuant thereto a letter of offer was prepared and issued to the comparator, who indicated his acceptance on June 9 ^th, 2013. The comparator's basic monthly salary was $22,000.00 per month plus allowances.

11 At paragraph 5 of the said supplemental Witness Statement Ms. Ramgattie states that the comparator assumed duty on October 7 ^th, 2013

12 Ms Ramgattie stated at paragraph 5 of her supplemental Witness Statement that on October 16 ^th, 2013 4, the Vice President Human Resources issued a Memorandum to all staff of advising of the appointment of the comparator as the Senior Manager, Sports and Recreation effective October 7th, 2013. A copy of this Memorandum was published on the intranet of the respondent.

13 She stated in cross examination that —

• a) A memo was emailed to the complainant early in October 2013 advising of the comparator's appointment. She said that all staff had access to the intranet and had the responsibility to check for emails intranet posts and so on, but could not say whether the complainant had received it.

• b) There was a policy for positions to be advertised internally via intranet and website and externally, she could not state whether or how the position in issue had been advertised. She was not aware of any policy that employees must be sourced internally before going externally. She could identify at least three (3) employees of the respondent by name who had applied for the position. She had no information that the comparator's appointment was pre-ordained.

Arlene Nicole Connor

14 Ms Connor stated in her Witness Statement that she was the Administrative Officer for the High-Performance Unit of the respondent. From the records of that Unit she observed that an email was sent to the...