Moriba Baker v The University of Trinidad and Tobago

• Jurisdiction: Trinidad & Tobago
• Judge: Donna Prowell-Raphael,Ms. Leela Ramdeen
• Judgment Date: 13 February 2019
• Docket Number: E.O.T. No. 0004 OF 2016
• Court: Equal Opportunity Tribunal (Trinidad and Tobago)

Between

Moriba Baker

Complainant

and

The University of Trinidad and Tobago

Respondent

Coram:

Her Honour Donna Prowell-Raphael, Judge/Chairman,

Her Honour Ms. Leela Ramdeen, Lay Assessor

E.O.T. No. 0004 OF 2016

IN THE EQUAL OPPORTUNITY TRIBUNAL

APPEARANCES:

Mr. Mr. Lennox Marcelle for the Complainant.

Mr. Dayle Connelly for the Respondent.

DECISION

Contents

The Equal Opportunity Tribunal	3
Context: History and Trajectory	3
The Viability of the Complaint	6
Defining the Complaint	6
Submissions	7
Judicial Review	10
Single Continuous Event	13
Amendment of Complaint	15
Timeliness of the Complaint	16
Exceptional Circumstances	16
Discrimination: Non-payment of extra duty allowance	19
Discrimination: Not being selected for the position of Senior Manager, Sports and Recreation	19
Victimisation: Being placed on disciplinary charges	20
Victimisation: Arising from Termination	21
The Commission's Report	23
Order	24

The Equal Opportunity Tribunal

1 The Equal Opportunity Act 1 (“the Act”) permits a person who claims that he has been discriminated against to submit 2 “a written complaint… setting out the details of the alleged act of discrimination” to the Equal Opportunity Commission (“the Commission”). If the complaint after investigation cannot, or is not resolved, through conciliation by the Commission, the Commission is mandated with the consent and on behalf of the complainant, to institute proceedings before the Equal Opportunity Tribunal (‘the Tribunal”) 3 for judicial adjudication.

Context: History and Trajectory

2 The adjunct complaint was lodged at the Commission on May 26, 2014 4. The Commission was of the view that it could have been resolved by conciliation. Therefore, with the concurrence of the parties a conciliation session was held on December 8, 2015. The matter was not resolved at the conciliation. As such and further to section 39(1) of the Act, the Commission prepared its Report dated September 7, 2016 (the Commission's Report') 5.

3 After the failure of the conciliation, the Commission by summary complaint, filed in the Arima Magistrate Court against the Respondent, sought to have the Respondent convicted for failing to provide the Commission with information it had requested. At the date of the Commission's Report (September 7, 2016) the summary complaint stood adjourned to September 26, 2016 and remained pending before the Arima Magistrate Court 6.

4 These proceedings were instituted at the Tribunal on October 3, 2016 by referral from the Commission dated September 30, 2016. The Respondent contends that the complaint as set out in the Complaint and Particulars of Claim (“The Claim”) before the Tribunal contains subject matter that was not extant at the time the original complaint was lodged. In this decision, the Tribunal proposes therefore to distinguish between the original complaint that was lodged at the Commission and the pending complaint before us by referring to the original complaint

lodged at the Commission as ‘the original complaint’ and the complaint set out in the Claim Form as ‘the pending complaint’

5 In compliance with various orders of the Tribunal, the parties filed inter alia the following documents:

Date	Complainant	Defendant
16/11/16	Complaint and Particulars of Claim (‘Claim’)	-
30/11/16	-	Defence (‘Defence’)
23/11/16	Witness Statements	Witness Statements
3/1/17	-	Respondent's Issues
16/1/17	Complainant's Issues	-
31/7/18	Agreed Facts (‘Statement of Agreed Facts’)	-
27/9/18	-	Summary of Legal Propositions, Relevant facts and Evidence to be Relied on by the Respondent (‘respondent's Summary of Legal Propositions, Facts and Evidence’)
2/10/18	Summary of Legal Propositions, Relevant facts and Evidence to be Relied on by the Complainant (‘complainant's Summary of Legal Propositions, Facts and Evidence’)	-
2/10/18	Trial Bundle	-

6 The material facts can be summarized as follows:-

• (i) The complainant was employed as an Assistant Sports Coordinator on January 1, 2007 on a three (3) year contract. In 2010 his contract for the same position was re-renewed for a further three (3) years. During this second contract period, he was given certain acting positions. From October 2011 to October 2012, he acted in the position of Executive Manager. Subsequent to that, for the period October, 1 2012 to August 2013, he acted in the position of Senior Manager, Sports and Recreation;

• (ii) The complainant applied for the position of Senior Manager, Sports & Recreation in in or about the February 2013.

• (iii) Mr. Ganga, the comparator, assumed the office of Senior Manager, Sports and Recreation in October 7, 2013, whereupon the complainant commenced reporting to him.

• (iv) By letter dated December 2, 2013 the complainant was advised that he was not selected for the position;

• (v) The complainant was promoted to the position of Senior Instructor of Sports & Leisure Studies on February 21, 2014 on contract;

• (vi) The complainant was sent on administrative leave with half pay by letter dated April 15, 2014. He nevertheless was paid his full salary for the months of April and May through company payroll and by cheques from June – September 2014 7;

• (vii) A disciplinary charge was laid against the complainant by letter dated May 15, 2014;

• (viii) The original complaint was lodged on May 26, 2014;

• (ix) The complainant appeared before the Respondent's Disciplinary Tribunal in June 4, 2014. The complainant was promised his half pay would be restored and he would hear from the Tribunal within four (4) days.

• (x) The complainant was refused a job letter on June 24, 2014;

• (xi) The Disciplinary Tribunal next communicated with the complainant by letter dated July 14, 2014;

• (xii) The complainant commenced receiving his full pay by instalments with effect from July 10, 2014 and continuing up to September 25, 2014;

• (xiii) Attorneys for the complainant responded to the letter of July 14, 2014 with respect to the disciplinary charges by letter dated August 28, 2014;

• (xiv) The respondent was issued its First Notice (‘Commission's First Notice’) of the complaint being laid dated August 29, 2014;

• (xv) The complainant was terminated by the respondent by letter dated October, 1 2014;

• (xvi) The Commission referred the original complaint to the Tribunal on October 3, 2016;

• (xvii) By letter dated December 2, 2016 the complainant was offered an extra duty allowance for the period during which he had acted.

7 The trial was fixed for hearing on October 15, 2018. At the trial, the Tribunal by order of even date, certified the following issues for preliminary determination and directed the parties to file written submissions thereon:-

• (i) Whether the complaint (the original complaint) lodged at the Equal Opportunity Commission on the 26th May 2014 is time barred and if so, how does it affect the viability of the complaint (the pending complaint) filed on the 3rd October, 2016?

• (ii) Whether the Report and Recommendations of the Equal Opportunity Commission dated 7 th September 2016 or any part thereof is admissible into evidence having regard to S 40 of the Equal Opportunity Act 22:03.

8 The respondent filed its submissions (‘Respondent's Submissions’) on October 29, 2018, the complainant (‘Complainant's Submissions’) responded by submissions filed on November 11, 2018 and the respondent filed its submissions in response (‘Respondent's Reply’) on November 19, 2018.

The Viability of the Complaint

Defining the Complaint

9 In paragraph 5 of his Particulars of Complaint, the complainant (without making any reference to the dates on which they allegedly occurred) sets out the four (4) aspects of the pending complaint as:-

• (i) Discrimination by the respondent in not being paid extra-duty allowance for acting in positions more senior than his substantive post including and not limited to the position of Senior Manager, Sports and Recreation;

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

• (iii) Victimisation by the respondent in being placed on disciplinary charges in respect of a purported conflict of interest which resulted in being suspended on half-pay, not receiving his restored half-pay as indicated by the respondent in a timely or proper manner and eventually being terminated; and

• (iv) Victimisation because the complainant lodged a complaint against the respondent at the Commission and being terminated as a result of this complaint.

10 There are two (2) aspects complaining about alleged discrimination by status, and two (2) allegations complaining about alleged discrimination by victimisation. The allegations of discrimination by status concern non-payment of extra duty allowance and of not being selected for the position of Senior Manager, Sports and Recreation that occurred prior to the original complaint being lodged. The allegations of discrimination by victimisation concern being placed on disciplinary charges and certain events that allegedly followed, including his termination. The disciplinary charges occurred before the original complaint was lodged. However, the complainant was terminated after the original complaint was lodged.

Submissions

11 With respect to the question at paragraph 7 (i) above 8, the respondent submits that: —

• (i) The allegations of discrimination set out in paragraphs 9(i) 9 and 9(ii) 10 above were lodged outside the six-month limitation period prescribed by section 30(2) of the Act and ought to be dismissed;

• (ii) According to the complainant the...