Patti Ann Adena Dick Williams v The Ministry of Rural Development and Local Government

• Jurisdiction: Trinidad & Tobago
• Judge: Madame Justice Donna Prowell-Raphael
• Judgment Date: 30 January 2020
• Court: Equal Opportunity Tribunal (Trinidad and Tobago)
• Docket Number: E.O.T. No. 0002 of 2017
• Date: 30 January 2020

IN THE EQUAL OPPORTUNITY TRIBUNAL

Before:

Madame Justice Donna Prowell-Raphael

E.O.T. No. 0002 of 2017

Between

Patti Ann Adena Dick Williams

Complainant

and

The Ministry of Rural Development and Local Government

Respondent

APPEARANCES:

Rajiv Chaitoo for the Complainant.

Lianne Thomas instructing Keisha Prosper for the Respondent.

Contents

The Equal Opportunity Tribunal	3
The Proceedings	4
Material facts	4
Issues	7
The Submissions	7
Law and Analysis	11
Disposition	23

The Equal Opportunity Tribunal

1 The Equal Opportunity Tribunal 1 (‘the Tribunal’) is an anti-discrimination court established by the Equal Opportunity Act 2 (“the Act”). The Act permits a person who claims that he has been discriminated against or victimised because of sex, race, religion, ethnicity, disability, origin and marital status 3 in the areas of 4 employment, education, accommodation or the provision of goods and services to submit 5 “ a written complaint … setting out the details of the alleged act of discrimination” to the Equal Opportunity Commission (“the Commission”). The Act also prohibits offensive conduct in public 6 which may offend, insult, humiliate or intimidate another person or a group of persons because of their gender, race, ethnicity, origin or religion and which is done with the intention of inciting gender, racial or religious hatred.

2 In the event that the complaint, after investigation cannot be 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 Tribunal for judicial determination of the complaint. The Tribunal has power like the High Court to grant injunctions, compel persons to appear and or produce documents, make orders for damages in an unlimited amount, and can fine and or commit for contempt. The Tribunal is entirely separate and independent from the Commission.

The Proceedings

3 These proceedings were initiated by referral (‘the Referral’) from the Commission dated March 2, 2017. The Complaint Form (‘the Complaint’) was filed on June 8, 2017. The Complainant is seeking –

• (i) A Declaration that the Respondent has discriminated against the Complainant by breaching section 5 of the Equal Opportunity Act, Chap 22:03 by virtue of status on the ground of sex;

• (ii) A Declaration that the Respondent has discriminated against the Complainant by breaching section 8 of the Equal Opportunity Act, Chap 22:03 by refusing and/or deliberately omitting to offer employment to the Complainant by virtue of her status namely sex because she was pregnant;

• (iii) Aggravated and/or Exemplary Damages;

• (iv) Interest;

• (v) Costs;

• (vi) Such further and or other relief as the Honourable Tribunal deems just.

4 The Defence was filed on July 13, 2017. All other Pre-trial orders having been complied with, the Complainant filed one Witness Statement on October 2, 2017 and the Respondent also filed one Witness Statement through Dianne Lakhan (Human Resource Officer II (ag)) on the same day. The Trial of the Complaint proceeded on October 10, 2018. The Respondent filed its Closing Submissions on November 21, 2018 and the Complainant responded by Submissions filed on February 21, 2019.

Material Facts

5 The Complainant and Ms. Dianne Lakhan testified at the Trial. Both witnesses were generally credible, plainspoken and resolute in their evidence. The material facts are largely undisputed and corroborated by agreed documents, except for the specific terms of the conversation between the Complainant and Ms. Lakhan as to certain assertions made about the Complainant not being granted a renewal of her short term contract after it ended on December 2, 2015.

6 The following undisputed facts are material to the determination of this Complaint:

• (i) The Complainant (a woman) was employed by the Respondent as a Disaster Management Coordinator on a 3 year contract from September 3, 2012 to September 2, 2015 (‘the 3-year contract’);

• (ii) During the subsistence of the 3-year contract the Complainant was granted maternity leave from February 24 ^th 2014 to May 30 ^th 2014 and was paid the requisite benefits;

• (iii) At the end of the 3-year contract the Complainant accepted a 3-month contract (‘short term contract’) in the same position of Disaster Management Coordinator commencing September 3, 2015 and ending December 2, 2015. The Complainant was approximately five and a half months pregnant at the time that the short term contract was granted to her in September 2015;

• (iv) The 3-year contract and the short term contract were materially different. Unlike the 3 year contract, the letter of award of the short term contract expressly stated that it proffered no allowances or leave entitlements;

• (v) During the tenure of the short term contract, on September 28, 2015 the Complainant applied for maternity leave from 30 ^th November 2015 – 4 ^th March 2016. She was granted “no-pay leave” for the period November 30, 2015 to December 2, 2015, but received payment for those days. The Complainant sought a renewal of the short term contract for another 3 months commencing December 3, 2015. The maternity leave of the Complainant therefore would have spanned and extended beyond the term of the renewal sought;

• (vi) The Complainant was not considered for and or granted a renewal of the short term contract. Other Disaster Management Coordinators – both male and female – received a 3-month renewal of their contract. None of the female workers who received the 3-month renewal were proceeding on maternity leave for all or any part of the renewed contracts. No further 3-month contracts were granted by the Respondent after March 2016 due to shortage of funds;

7 On the material disputed facts I find that —

• (i) Ms. Lakhan did not state and or it is not a fair inference to draw from the evidence adduced that she represented to the Complainant that the Respondent had a ‘policy’ not to employ pregnant women;

• (ii) The Complainant intended to proceed on the maternity leave that she applied for by her letter dated September 28, 2015, from Monday 30 ^th November 2015 to Friday 4 ^th March 2016 return to work after the birth of her child if she was granted a renewal of the short term contract;

• (iii) Having regard to the contents of the letters of November 11, 2015 from the Ministry of Rural and Local Government to the Complainant and November 6, 2015 from the Ministry of Rural and Local Government to the Chairman, National Insurance Board (that are agreed documents between the parties) the Complainant was granted maternity leave from November 30, 2015 to December 2, 2015. Pursuant to the terms outlined in the letter of Approval of Short Term Employment dated September 2, 2015 this maternity leave was treated as “ no-pay leave”.

8 I find Ms. Lakhan to be a competent, credible and disinterested witness to give evidence on behalf of the Respondent from her own knowledge (having interacted directly with the Complainant with respect to the matters complained of) and as an employee of the Respondent who would have had access to the books and records of the Respondent. I accept the evidence of Ms. Lakhan elicited in cross examination to be that—

• (i) The Complainant was on a short term contract to which leave was not applied unlike the long term contract;

• (ii) Payment received by the Complainant for the period of no-pay leave between November 30, 2015 to December 2, 2015 was an error caused by the manner of processing of pay sheets and miscommunication between the HR and Accounting Units of the Respondent;

• (iii) She indicated to the Complainant that since she was going on maternity leave she would no longer be put on the list of persons to be considered for the 3-month period short-term employment. No proposal was put up for the funding for the renewal of the Complainant's short term contract during the period she indicated that she had applied for maternity leave;

• (iv) After the Complainant's short term contract ended on the December 2, 2015, there was nothing preventing her carrying on, to another contract except that she had applied for maternity leave;

• (v) New administration in 2015 reduced the budget allocation of the Respondent which resulted in a lack of funding and uncertainty of funds for employment of Disaster Management Coordinator. 3-month contracts were not offered to these workers after March 2016.

Issues

9 I have abridged the agreed and unagreed issues for determination as follows –

• (i) Whether the Respondent treated the Complainant unfavourably by virtue of her sex contrary to sections 5 and or 8 of the Act by omitting and or refusing to renew her short term contract so that she could have proceeded on maternity leave that would have spanned the duration of the renewal;

• (ii) If so whether the reason(s) (if any) given by the Respondent provide reasonable justification for its actions;

• (iii) Whether the policy (if any) of the Respondent not to employ women who are on maternity leave and or pregnant is discriminatory.

The Submissions

10 Attorney for the Respondent contended that there has been no breach of the Act inter alia for the following reasons —

• (i) The burden of proof is on the Complainant to prove her case on the balance of probabilities, which she has not discharged;

• (ii) The outcome of the case will depend on the primary facts found by the Tribunal, and the inferences that can be drawn from these facts. The tribunal can look to the Respondent for an explanation of them where applicable;

• (iii) The ‘but for’ test was no longer applicable in discrimination cases. The tribunal should ask the question what was the ‘true basis’, ‘genuine basis’ or ‘real basis’ for the treatment meted out to the Complainant. The true and genuine reason the Complainant was not offered...