Simon Wiltshire v North-West Regional Health Authority

• Jurisdiction: Trinidad & Tobago
• Judge: HH Donna Prowell-Raphael,Mrs. Lenore Harris
• Judgment Date: 22 March 2024
• Docket Number: E.O.T. No 0001 of 2020
• Court: Equal Opportunity Tribunal (Trinidad and Tobago)

BETWEEN

Simon Wiltshire

Complainant

and

North-West Regional Health Authority

Respondent

Panel:

HH Donna Prowell-Raphael, Judge

Lay-assessor: Mrs. Lenore Harris.

E.O.T. No 0001 of 2020

IN THE HIGH COURT OF JUSTICE

Findings:

• 1. IRA as ‘Relevant Law’: In determining whether subsections 10(6) of the IRA has been engaged as ‘ relevant law’ under section 6 of the EOA in these proceedings, the Tribunal must assess whether the circumstances of the unfair dismissal of the complainant in the trade dispute, entail discrimination by victimisation within the contemplation of the EOA. The IRA was not considered ‘relevant law’ under the EOA in this context of these proceedings.

• 2. Knowledge and Materiality of the Trade Dispute: The Tribunal applied principles from Webster v. Attorney General of Trinidad and Tobago to assess discrimination. The complainant failed to establish that his qualifications were similar to those of the shortlisted candidates and that the trade dispute was material to his non-selection. The Chairman's testimony that she was unaware of the trade dispute at the time of shortlisting was not discredited.

Disposition: The Tribunal dismissed the complaint, holding that the IRA does not constitute ‘relevant law’ under the EOA for this case, and the complainant did not meet the burden of proof to show discrimination by victimisation.

Citations:

• • Webster v. Attorney General of Trinidad and Tobago[2015] UKPC 10

• • Royal Mail Group Ltd. v. Efobi [ 2021 UKSC 33.

• • Glasgow City Council v Zafar[1997] 1 WLR 1659 at 1664

• • Nagarajan v London Regional Transport2000 1 AC 501

Appearances:

Mr Nigel Floyd for the Complainant.

Ms Alana Bissessar and Mr Ravindra Nanga for the Respondent.

The complainant was ordered to pay costs to the respondent.

Contents

The Tribunal	4
The Proceedings	4
Complaint	4
Defence	5
Evidence	6
Issues	6
Analysis of evidence and law	6
IRA as ‘Relevant Law’ under the EOA	7
Knowledge and Materiality of the Trade Dispute	10
Disposition	15

THE TRIBUNAL

1 The Equal Opportunity Tribunal (‘the Tribunal’) is a superior court of record established by the Equal Opportunity Act 1 (‘EOA’) 2 with the jurisdiction to hear and determine specified complaints of unlawful discrimination 3, victimisation 4 and offensive language 5. The Tribunal also has commensurate inherent 6 and statutory powers to make its procedures effective and to grant relief 7.

THE PROCEEDINGS

Complaint

2 In these proceedings the complainant has applied to the Tribunal by way of Notice of Complaint dated September 10 ^th 2020, (‘Notice of Complaint’) for the following Declarations and Orders:

• (i) A Declaration that the actions of the respondent toward the complainant with regard to the position of Chief Operating Officer amounted to an act of discrimination by victimisation;

• (ii) Damages for loss of opportunity;

• (iii) Costs

3 The complainant was employed by the respondent as its Chief Operating Officer (‘COO’) for ten (10) working days in June 2010 before his two (2) year contract was terminated by the respondent. On a trade dispute (‘the trade dispute’) brought by the complainant, the Industrial Court held that he had been dismissed by the respondent in circumstances that were harsh and oppressive and contrary to good industrial relations pursuant to section 10(6) of the Industrial Relations Act8 (‘IRA’). He was awarded $708,000.00 in damages.

4 Subsequently, in 2017, the complainant responded to an advertisement by the respondent for another COO position. He was not shortlisted to be interviewed for this position. The complainant submits that his non-selection for shortlisting was due to the trade dispute. He therefore contends that he was discriminated against by way of victimisation.

Defence

5 By way of preliminary submission, the respondent asserts that the complainant's pleadings disclose no grounds for the bringing of a complaint under the EOA. The respondent submits that proceedings under the IRA are in the realm of industrial relations and cannot satisfy the requirements of ‘ relevant law’ under section 6 9 of the EOA.

6 Substantially, the respondent submits that, even if the IRA was deemed to be a ‘ relevant law’, the evidential burden on the complainant to be discharged, to

constitute discrimination by victimisation under section 6 of the EOT, has not been so discharged

Evidence

7 The complainant filed one (1) Witness Statement personally. Two (2) Witness Statements were filed by the respondent –

The witnesses were cross-examined by opposing counsel on their Witness Statements.

• (i) Lisa Agard (Chairman); and

• (ii) Salisha Baksh – (former Chief Executive Officer (Ag.)).

8 The parties have complied with all pre-trial and post-trial orders and directions.

Issues

9 The issues to be determined may be summarised as -

• (i) Whether the IRA is ‘ relevant law’ for the purposes of the EOA.

• (ii) Whether knowledge of the complainant's trade dispute can be inferred from the evidence presented and imputed to the Chairman of the respondent; and

• (iii) If so, whether this knowledge influenced the decision not to shortlist the complainant.

ANALYSIS OF EVIDENCE AND LAW

10 This Tribunal has duly considered all the pleadings, evidence, applicable law, arguments and submissions (written and or oral) of the parties presented in these proceedings. Based on this thorough consideration, the Tribunal issues this judgment.

IRA as ‘Relevant Law’ under the EOA

11 The EOA is intended to provide remedies for specified discriminatory practices 10. Section 6 11 of the EOA, creates a civil offence of discrimination by victimisation which occurs when a person is treated less favourably for engaging in activities such as bringing proceedings, giving evidence or information, making allegations against an alleged discriminator or doing anything under the EOA or any ‘ relevant law’.

12 The EOA defines ‘ relevant law,’ as any written law dealing with the subject matter of discrimination 12. The definition is sufficiently broad to include legislative provisions that may not be explicitly linked to the EOA but still deals with discrimination that fall within the EOA. The determination of whether the IRA is ‘ relevant law’, under the EOA in the context of these proceedings therefore hinges on whether the scope and substance of the application of the legislative provisions in question address discrimination that falls within the purview of the EOA.

13 The IRA, on the other hand, primarily governs the relationship between employers and employees, focusing on issues such as unfair dismissal, collective bargaining, and trade disputes. While the IRA may intersect with discrimination in cases where trade dispute includes discriminatory practices, it does not explicitly address discrimination in the manner contemplated by the EOA.

14 The complainant was successful in the trade dispute under subsection 10(6) of the IRA. Subsection 10(6) 13 of the IRA is linked to the preceding subsections 10(4) 14 and (5) 15 and must therefore be read in together. Taken together, these subsections of the IRA specifically address unfair dismissal, and provide for remedies such as re-employment, reinstatement, compensation and or damages. Unfair dismissal may involve elements of discrimination in employment. Therefore, if the complainant's case of unfair dismissal under subsection 10(d), involves elements of discrimination that are also protected by the EOA, it could be argued that in the context of these proceedings, subsectionlO(b) falls within the definition of ‘ relevant law’ for the purposes of Section 6 of the EOA.

15 In determining whether subsections 10(6) of the IRA has been engaged as ‘ relevant law’ under section 6 of the EOA in these proceedings, the Tribunal must assess whether the circumstances of the unfair dismissal of the complainant in the trade dispute, entail discrimination by victimisation within the contemplation of the EOA. If the complainant's unfair dismissal in the trade dispute, is based on the protected statuses or actions under the EOA, then in that context the IRA could be considered as being within the definition of ‘ relevant law’ in this claim for discrimination by victimisation claim under Section 6 of the EOA.

16 In the trade dispute, the Industrial Court in coming to its decision to award damages to the complainant stated 16 –

“ The Court's Decision'

The statements in the Union's evidence and arguments and in the witness statement of the worker were in the main no different to the Authority's evidence and arguments which had been filed.

The Authority relied on Clause 13(H) of the employment contract to terminate the services of the Worker….

The Authority in invoking clause 13(H) of the employment contract to terminate the Worker's service violated the contract.”

17 The Industrial Court later continued 17 –

“ The Court finds that the Worker was dismissed in circumstances that were harsh and oppressive and contrary to principles and practice of good industrial relations pursuant to section 10(d) of the Industrial Relations Act.”

18 It is therefore evident that the trade dispute at the Industrial Court was predicated on the interpretation of the complainant's then employment contract with the respondent. The finding that the dismissal was harsh, oppressive, and contrary to good industrial relations practices did not rest on any findings of discrimination as defined by the EOA but instead on violation of the employment contract that was entered into between the parties.

19 Therefore, I find that the IRA, in the context of these proceedings, was not engaged as ‘ relevant law’ in relation to section 6 of the EOA. As a corollary to this finding, I uphold the preliminary submission of the respondent that the Notice of Complaint and Affidavit in support do...