Takechand Jaisarie v Trinidad and Tobago Defence Force
| Jurisdiction | Trinidad & Tobago |
| Judge | Donna Prowell-Raphael,Lenore Harris |
| Judgment Date | 16 September 2022 |
| Docket Number | E.O.T. No. 0016 of 2017 |
| Court | Equal Opportunity Tribunal (Trinidad and Tobago) |
HH Donna Prowell-Raphael, CEOT.
Lay-assessor: Lenore Harris.
E.O.T. No. 0016 of 2017
EQUAL OPPORTUNITY TRIBUNAL
Mr. Kevin Ratiram for the Complainant.
Mr Zin-Mark King instructed by Mr. Brenston Francois for the Respondent.
| The Tribunal | 4 |
| The Proceedings | 4 |
| Complaint | 4 |
| Defence | 5 |
| Reply | 5 |
| Pre-trial Orders and Directions | 6 |
| Evidence | 6 |
| Issues | 6 |
| Analysis of Evidence | 7 |
| The Complainant's First Re-enlistment | 8 |
| The 2010 EOC Complaint | 9 |
| The Visit of Retired Rear Admiral Kelshall | 9 |
| The Complainant's Second Re-enlistment | 18 |
| The Complainant's Third Re-Enlistment Application | 19 |
| The Application Process | 22 |
| The Comparators | 23 |
| Law | 24 |
| Preliminary Issue | 24 |
| Victimisation | 24 |
| Burden of Proof | 25 |
| Comparable, Analogous, or Broadly Similar | 29 |
| Differences Material to the Difference in Treatment | 30 |
| Explanation/Justification | 32 |
| Legitimate Expectation | 34 |
| Costs | 35 |
| Disposition | 36 |
The Equal Opportunity Tribunal (‘the Tribunal’) is a superior court of record that was established by section 41(1) 1 the Equal Opportunity Act Chap 22:03 (‘EOA’) 2 to determine specified complaints of unlawful discrimination 3, victimisation 4 and offensive language 5.
The Tribunal has the exclusive jurisdiction to determine complaints of unlawful discrimination against private individuals and or entities as well as against the State and has commensurate powers to make its procedures effective and to grant relief 6.
The central complaint in these proceedings is that the respondent discriminated against the complainant because of his race when it did not grant a third re-enlistment application to the Permanent Staff of the Trinidad and Tobago Defence Force (Coast Guard) Reserves after his retirement.
The complainant in his Complaint (‘Complaint’) filed on May 16, 2018, prays the following reliefs–
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(i) A Declaration that the Complainant was discriminated against by the agents/ servants of the Respondent, in refusing or deliberately omitting to
renew his contract, and subjecting him to detriment contrary to the Act due to his race. -
(ii) A further Declaration that the Complainant was discriminated against by the agents/ servants of the Respondent, in that the Complainant was treated less favourably than the said agents/servants treated other persons similarly circumstanced and did so by reason of his race.
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(iii) An Order that the Complainant be awarded a contract, as Fleet Chief Petty Officer, Equipment Maintenance Officer, effective the 6th day of January 2015.
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(iv) That the proper salaries and value of benefits, inclusive of backpay, of the contract for the post of Fleet Chief Petty Officer, Equipment Maintenance Officer, be paid to the Complainant.
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(v) Compensation/damages for the violation of the Complainant's constitutionally protected right to be treated equally regardless of race.
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(vi) Compensation/damages for the violation of the Complaint's right under the Act to not be victimised for the reason(s) specified above.
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(vii) Interest.
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(viii) Cost.
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(ix) Such further and or other reliefs as the nature of the case may require.
The respondent, in its Defence filed on July 31, 2018, denied that the complainant was discriminated against as alleged or at all and that the complainant was entitled to any of the reliefs sought. It posited that —
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(i) There was another officer capable of carrying out the work that was done by the complainant; and
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(ii) The circumstances of the complainant were not the same and or were materially different from those of the alleged comparators.
The complainant filed a Reply on January 25, 2019, that materially joined issue with the respondent on its Defence.
The parties have complied with all pre-trial orders and directions. All interlocutory applications have been determined.
The complainant filed one (1) Witness Statement on his own behalf on May 3, 2019. The complainant was cross-examined by Mr. King, Counsel for the respondent, on his Witness Statement.
The respondent filed two (2) Witness Statements –
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(i) The Witness Statement of the retired Lieutenant Commander Dion Brathwaite filed on May 3, 2019. He was cross-examined by Mr. Ratiram, Counsel for the complainant, on it; and
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(ii) The Witness Statement of retired Fleet Chief Petty Officer Malcolm Forbes also filed on May 3, 2019, and he was cross-examined by Mr Ratiram on it.
Pursuant to directions of the Tribunal, Closing Submissions were filed by the respondent on the March 1, 2021, and by the complainant on the April 12, 2021.
The parties agreed the following issues for determination—
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(i) Whether the alleged comparators are similarly circumstanced as the complainant;
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(ii) Whether the complainant was treated less favourably than the comparators; and
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(iii) If the complainant was treated less favourably than the comparators, whether this was due to his race.
The respondent raised the following additional issue in his submissions as a preliminary issue –
“…, whether the Respondent was the proper party for the Complainant to bring these proceedings against, and whether the Respondent had the requisite authority to award the Complainant the employment contract.”
The Trinidad and Tobago Coast Guard is an arm of the respondent. The complainant served in the Coast Guard from October 2, 1978, until May 27, 2008, when he retired.
The complainant's CV discloses a mix of academic certification, technical or vocational training and or certification, together with work experience in the respondent. While the complainant was enlisted in the Coast Guard, he progressed through successive ranks retiring at the rank of Fleet Chief Petty Officer. Within these ranks, he served in several positions and locations, during which he received training and gained experience across a range of disciplines. He testified as having assisted with the creation of the E999 system, the installation of the Coastal Surveillance Radar System throughout Trinidad and Tobago and the training of military personnel to operate and maintain the first coastal radar system, and the establishment of the command control and operation centre for these radars 7.
Almost one third of the complainant's career was served in the area of radar equipment and coastal surveillance. In 1995 the complainant began working on the first coastal radar system in the country at the Joint Operations Command Centre (‘JOCC’), now the National Coastal Surveillance Radar Centre (‘NCSRC’). He received training in coastal radars in Israel in 2004 and continued working with coastal surveillance radars until his retirement from the Coast Guard in 2008.
After his retirement in 2008, the complainant received two (2) re-enlistments at the NCSRC in 2010 and 2013 respectively. The complainant states that on November 4, 2014, and December 2, 2014, he submitted two (2) letters seeking a third re-enlistment in the Reserves. The complainant did not receive a response from the respondent to these letters.
The complainant is admittedly of East Indian descent. His case has two (2) dimensions—
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(i) He testified about an incident in July 2013 revolving around the visit of retired Rear Admiral Richard Kelshall, that culminated in the complainant being transferred to the Training Department located at Staubles Bay. His then Officer in Charge (now retired) was Lieutenant Commander Dion Braithwaite. The complainant alleges that there was some element of race in the manner of
his transfer that may have had some connection to the failure of his application for a third re-enlistment; and -
(ii) He identified three (3) officers (‘the comparators’) who are purportedly of African descent, who he alleges were similarly circumstanced and who received re-enlistment after their retirement. Consequently, he claims to have been discriminated against based on his race. To maintain the anonymity of the comparators, who did not testify and have no personal interest in this matter, they would be referred to as ‘comparator I’, ‘comparator II’, and ‘comparator III’.
By letter dated June 14, 2010, (‘the complainant's first re-enlistment application’) the complainant wrote to the Commanding Officer of the Coast Guard and sought his first re-enlistment in the respondent. He highlighted and relied primarily on his experience in coastal surveillance radar systems.
Then Acting Commander (Coast Guard), Hayden Pritchard by letter dated November 23, 2010, wrote to the Chief of Defence Staff to retain the employment of the complainant. By letter dated April 5, 2010 he also wrote as well to the Permanent Secretary, Ministry of National Security, recommending that the complainant be retained to function at NCSRC “… in the general maintenance of radar equipment and other electronic equipment in the Coast Guard”. There is some issue between the parties as to whether the year of writing of this letter is in fact 2010 or 2011. From the evidence tendered, if this letter was written on April 5, 2010 it would predate the date of the complainant's first re-enlistment application of June 14, 2010. In addition, this letter dated April 5, 2010, refers to a letter of March 22, 2011. Having regard to the timeline, and the content of the letter, it is more likely than not that the year of writing of this letter is 2011 and not 2010. The complainant seems to have accepted at paragraph 7 of his Witness Statement that “2010” was an error.
In August 2011, congruent with the recommendation of then Acting Commander...
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