Rishi Persad Maharaj v Cascadia Hotel Ltd

• Jurisdiction: Trinidad & Tobago
• Judge: Madame Justice Donna Prowell-Raphael
• Judgment Date: 06 November 2019
• Docket Number: E.O.T. No. 0001 OF 2017
• Court: Equal Opportunity Tribunal (Trinidad and Tobago)

Between

Rishi Persad Maharaj

Complainant

and

Cascadia Hotel Limited

Respondent

Before:

Madame Justice Donna Prowell-Raphael.

E.O.T. No. 0001 OF 2017

IN THE EQUAL OPPORTUNITY TRIBUNAL

APPEARANCES:

Stacey Mc Sween instructing Lemuel Murphy for the Complainant.

Rachael Latchme Jaggernnauth instructing Shankar Bidaisee for the Respondent.

DECISION ON PRELIMINARY ISSUES

Contents

The Equal Opportunity Tribunal	3
The Proceedings	4
The Pleadings	4
Preliminary Issues	4
Material facts	5
The Respondent's Submissions fded on March 7, 2019	6
The Complainant's Submissions filed on March 15, 2019	7
The Commission's Amicus Brief	8
The Respondent's Submissions in response to the Commission was filed on May 6, 2019	10
Law and Analysis	11
Jurisdiction of the Tribunal to hear and determine Sexual Harassment Complaints	12
History of the Equal Opportunity Act (‘the Act’)	13
What is Sexual Harassment?	14
Sexual harassment as a ‘detriment’	23
Are Comparators-necessary?	7
The exclusion of sexual orientation and preference	27
Summary of the law of sexual harassment	32
Application to this Complaint	33
Duplicitous Proceedings	33
Should the Respondent be struck out?	34
Disposition	37

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 6 in public 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 a 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 is of the same status, and has power under the Act, 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

The Pleadings

3 These proceedings were initiated by referral (‘the Referral’) from the Commission dated February 20, 2017 and filed on March 2, 2017. The Complaint Form (‘the Complaint’) was filed on July 14, 2017. The Complainant is claiming damages (general and special) for discrimination by way of sex and or sexual harassment and or him being subject to a detriment, interest and costs.

4 An Appearance was entered on October 2, 2017. Pursuant to an Order dated June 12, 2018 an Amended Defence was filed on July 11, 2018. The Reply to the Amended Defence was filed on September 21, 2018. A Pre-Trial Review was held on December 10, 2018. All Pretrial orders have been complied with and (subject to the disposition of the Preliminary Issues below) the Complaint is pending trial.

Preliminary Issues

5 At the Pre-Trial Review on December 10, 2018, the parties were ordered to file and exchange Legal Propositions of Law and Relevant Facts with Authorities on three (3) issues (‘preliminary issues’) —

• (i) Whether the Complaint ought to be struck out on the grounds that the Respondent was not the employer of the Complainant;

• (ii) Whether the proceedings in this Tribunal and at the Ministry of Labour are duplicitous and or an abuse of the process;

• (iii) Whether the Tribunal has the jurisdiction to hear and determine the issue of sexual harassment in these proceedings.

6 The Respondent filed its Propositions of Law on March 7, 2019. The Complainant filed its Propositions of Law on March 15, 2019.

7 In response to a request by the Tribunal to provide submissions on the jurisdiction of the Tribunal to hear and determine issues of sexual harassment, the Commission filed a Statement as Amicus Curiae on March 29, 2019 (‘Commission Submissions’). By Notice dated May 1, 2019, parties were permitted to file further submissions in response to The Respondent filed its submissions on May 6, 2019. No further submissions were filed by the Complainant. This decision (which unfortunately has had to be adjourned on three (3) previous occasions since April 2019), disposes of the preliminary issues.

Material facts

8 The Referral instituting the Complaint by the Commission is intituled between Rishi Persad Maharaj as the Complainant and Cascadia Hotel Limited as the Respondent.

9 The Complainant claims that he was employed by the Respondent on September 4, 2014 and was terminated on October 5, 2015. The Complainant avers that between March 2015 and September 2015 the Respondent's Director of Operations used inappropriate words such as “sexy”, “baby”, “hot” and “bae”, to him slapped him on his buttocks and pinched him on his waist (these acts are collectively referred to as the ‘alleged sexual harassment’). He asserts that the Respondent is vicariously responsible for the alleged sexual harassment.

10 The Respondent claims that his relationship with the Director of Operations deteriorated after he blocked her on Whatsapp and he avoided contact with her. He references alleged complaints by the Director of Operations about his work performance. He avers that he made his discomfort with the alleged sexual harassment known to the Director of Operations sometime in September 2015, and that he made two (2) complaints in writing bearing July 24, 2015, — and October 5, 2015 (the same day that he was terminated) respectively. He further alleges that his termination was without notice on the basis that the position he occupied was unavailable.

11 The Complainant asserts that the Director of Operations ought to have known that her acts caused him anxiety, embarrassment discomfort distress and detriment. In support of his claim for damages the Complainant relies on a purported report by Dr. Ramdeo Ramsoondar, Psychiatrist. Subsequent to his termination, the Complainant avers that he lost a future employment opportunity after receiving an unfavourable reference in relation to unprofessional behaviour and sexual misconduct.

12 The Complainant lodged a complaint with the Commission based on discrimination in employment on the basis of sex, by way of sexual harassment and victimisation dated November 17, 2015. Subsequently through his Trade Union he reported a Trade Dispute (No 4 of 2016). (‘The said Trade Dispute’) to the Ministry of Labour by letter dated December 15 2015.

13 The Respondent avers that it is the Banquet and Conference Centre Limited (‘BCCL’) and not Cascadia Hotel Ltd. It avers that no complaint has been made against it whatsoever in accordance with the Act. It further avers that BCCL and the Cascadia Hotel Ltd. (the Respondent) are separate legal entities and therefore submits that the wrong entity is before the Tribunal. The Respondent affirms that BCCL was the employer of the Complainant and not Cascadia Hotel Ltd. The Respondent asserts that the Complaint ought to be struck out.

14 The Respondent asserts that the Complainant disclosed during its interview process that he was a homosexual. This allegation has not been disputed by the Complainant. The Respondent avers that it has an open door policy and does not tolcrance any form of discrimination against its employees.

15 The Respondent states that the Director of Operations is the wife of its Managing Director. She is the mother of three (3) children, an upstanding citizen and graduate of the University of the West Indies in Literature and Economics. She has held directorships on several boards and mentors young women. She has worked in senior Communications Specialist positions in several large organisations. She has a zero tolerance for discrimination, demoralising, and disrespectful behaviour.

The Respondent's Submissions filed on March 7, 2019.

16 The Respondent concluded that the Tribunal ought to strike out the Complaint. It submitted

• (i) The Complainant's employer is not the Respondent. The Complainant's employer is BCCL. BCCL is a separate and distinct legal entity from the Respondent. This is supported by the documents tendered by the Claimant in support of his claim. The claim ought to be struck out as the wrong party is before the court: Nalini Kokaram-Maharaj v. Attorney General of Trinidad and Tobago & Anor 7

• (ii) A party should not be twice vexed in the same matter. Johnson Gore Wood & Co. 8. See also Dr John Prince v. Telecommunications Authority of Trinidad and Tobago 9.

• (iii) “Parties are not permitted to bring fresh litigation because they may entertain fresh views of the law, or new versions which they present as to what should be a proper apprehension by the court of the legal result. If this were permitted litigation would have no end”: Hoystead and others v. Commissioner of Taxation 10.

• (iv) The proceedings are duplicitous because the terms of the settlement of the Trade Dispute brought by the Claimant, arising out of the same termination includes compensation for the injury (if any) claimed in this action.

• (v) The Act does not provide for sexual harassment nor does it set it out as a status under section 3;

• (vi) The Complainant has not stated any grounds under section 4 of the Act that amount to...