KERWIN SIMMONS - Equal Opportunity Commission · Professor Emeritus John G La Guerre, Chairman Dr. Eastlyn K Mc. Kenzie, Vice-Chairman Dr. Indira Rampersad, Commissioner Dr. Beverly

REPORT OF THE EQUAL OPPORTUNITY COMMISSION OF TRINIDAD AND

TOBAGO

In the matter of the Equal Opportunity Act Chap 22:03 [Act No 69 of

2000 as amended] (‘the Act’)

And

In the matter of the jurisdiction of the Equal Opportunity Commission (‘the Commission’) which was established by that Act and is empowered by that Act to among other things receive, investigate,

and as far as possible conciliate allegations of discrimination.

And

In the matter of the investigation of complaint of discrimination

lodged with the Commission by Mr. KERWIN SIMMONS

EOC Complaint 0124/2012

Between

KERWIN SIMMONS

Complainant

AND

TRINIDAD AND TOBAGO WATER AND SEWERAGE AUTHORITY

Respondent

REPORT AND RECOMMENDATIONS OF THE COMMISSION COMPRISING:

Professor Emeritus John G La Guerre, Chairman

Dr. Eastlyn K Mc. Kenzie, Vice-Chairman

Dr. Indira Rampersad, Commissioner

Dr. Beverly A Beckles, Commissioner

Mr. Gérard A Besson, Commissioner

Report of the Equal Opportunity Commission of Trinidad and Tobago EOC Complaint No 0124/2012 lodged by Kerwin Simmons

Against Trinidad and Tobago Water and Sewerage Authority

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Introduction

1. This is a report pursuant to an investigation conducted by the Equal Opportunity Commission

(hereinafter referred to as „the Commission‟). The Commission was created by the Equal

Opportunity Act Chap 22:031 („the Act”). Per section 27(1)(d), one of its functions is to

receive, investigate and, as far as possible, conciliate allegations of discrimination. Per

section 4(a) the Act applies to discrimination in relation to the following four broad

categories: employment, education, the provision of goods and services and the provision of

accommodation; but that discrimination must be -

(i) discrimination on the ground of status as defined in section 3; or

(ii) discrimination by victimisation as defined in section 6;

By virtue of section 30(1), a person who alleges that some other person has discriminated

against him (in contravention of section 5 of the Act) or has contravened sections 6 or 7 in

relation to him, may lodge a written complaint with the Commission setting out the details

of the alleged act of discrimination. By virtue of section 32 of the Act, the Commission is

mandated to investigate each complaint of discrimination lodged with it.

2. The Complainant, Mr. Kerwin Simmons, lodged a complaint with the Commission dated 30th

October, 2012. He has made a number of allegations against his employer, the Water and

Sewerage Authority („WASA‟ or the „Respondent‟), of discrimination in relation to his

employment, contrary to section 9 of the Act2, due to:

(i) WASA‟s failure to properly investigate allegations of impropriety he (Mr. Simmons)

made with respect to the appointment of another member of staff to a senior position

within the organisation;

(ii) WASA‟s refusal or omission to afford him access to opportunities for promotion and/or

any other benefit associated with his employment;

(iii) WASA‟s act of giving preferential treatment to employees of a particular race.

3. The Complainant submitted a number of documents in support of his complaint. The

Commission, pursuant to its powers under section 333 of the Act, requested that the

1 Act No 69 of 2000 as amended by Act No 5 of 2001. 2 Section 9 reads as follows:

An employer shall not discriminate against a person employed by him— (a) in the terms or conditions of employment that the employer affords the person; (b) in the way the employer affords the person access to opportunities for promotion, transfer or training

or to any other benefit, facility or service associated with employment, or by refusing or deliberately omitting to afford the person access to them; or

(c) by dismissing the person or subjecting the person to any other detriment.

3 Section 33 reads: The Commission may by notice in writing –

(a) require any person to furnish such information as may be described in the notice;



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Respondent provide certain information via Notice dated 9th

April, 2013, to which the

Respondent requested an extension of time to respond dated 17th

April, 2013. The

Respondent, by way of letter dated 14th

May, 2013, replied to the Complainant‟s allegations.

By Supplemental Notice dated 29th

July, 2013, the Commission requested further information

from the Respondent, which was provided by the Respondent by letter dated 23rd

August,

2013. The information and documentation which the Respondent was asked to provide in the

Notices of 9th

April, 2013 and 29th

July, 2013 may be found at Appendix I attached hereto. A

list of all the statements, documents and reports received from the parties may be found at

Appendix II attached hereto.

4. Upon consideration of the information and documents submitted by the Complainant and the

Respondent, the Commission found further to section 35(1)4 of the Act that the subject

matter of the complaint could have been resolved by conciliation, and, pursuant to section

35(2) issued notices to the parties to attend a Conciliation Session which was held on 27th

September, 2013. Unfortunately the matter was not resolved, thus, further to section 39(1)5 of

the Act, the Commission has prepared this report. The Commission proposes to send a copy

of this report to the parties, publish this report and make it available for inspection by the

public.

(b) specify the time in which the required information is to be furnished; and (c) require the person to attend at such time and place specified in the notice and to give oral evidence about and

produce all documents in his possession or control relating to, any matter specified in the notice”.

4 Section 35 reads as follows: “(1) Where the Commission finds that the subject matter of the complaint may be resolved by conciliation, it

shall make all reasonable endeavours to resolve the matter in accordance with subsection (2) (2) The Commission may by notice require the following person to attend conciliation:

(a) the complainant (b) the person who is alleged to have committed the act of discrimination which is the subject matter

of the complaint (c) any other person who-

(i) is likely to be able to provide information relevant to the proceedings of the conciliation; or

(ii) whose presence at the proceedings is likely to assist in the settlement of the matter and the Commission may in said notice require any person so invited to produce such documents at the conciliation as are specified in the Notice

5 Section 39(1) reads:

(1) Where the Commission is of the opinion that the subject matter of the complaint cannot be resolved by conciliation or it has attempted to resolve the matter by conciliation but has not been successful in that attempt, the Commission shall- (a) prepare a report relating to the investigation with its recommendations (b) send a copy of the report to the parties to the complaint (c) publish the report; and (d) make the report available for inspection by the public.



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Background

5. The Complainant, an employee of WASA, alleged discrimination in the terms and conditions

of his employment and also discrimination arising out of the Respondent‟s decision taken to

refuse him opportunities for advancement, promotion and benefits in the employment

relationship, all contrary to section 9 of the Act.

6. The Complainant alleged that in 2006, whilst he was acting as a Network and

Telecommunications Administrator with the Respondent, he was informed that his acting

appointment would be terminated due to the fact that another employee of the Respondent,

Mr. Simon Bahaw, had contested his qualifications and overall suitability for the acting

position. The Complainant subsequently admitted that whilst he did not possess the requisite

specific qualifications for the position of Network and Telecommunications Administrator,

he did however possess qualifications that were of a similar nature. Consequently, the

Complainant reverted to his substantive position of Technical Officer but remained in the

Network and Telecommunications Department where Mr. Bahaw, his junior, was appointed

as the Acting Manager, Network and Telecommunications.

7. The Complainant in turn queried the validity of Mr. Bahaw‟s qualifications but was

unsuccessful in his attempts to have the Respondent investigate Mr. Bahaw‟s academic and

professional qualifications.

8. The Complainant alleged that he was treated less-favourably, due to the fact that a junior

member of staff was promoted ahead of him. He further alleged that this unfavourable

treatment was meted out to him as a result of his race, more particularly, the fact that he is of

Afro-Trinidadian descent, whilst Mr. Bahaw (his comparator) is of East Indian descent.

The Complainant’s Allegations

9. The Complainant alleged that sometime in 2006, at a meeting held between himself and Ms

Annamay Haynes, former General Manager Information Systems at WASA, he was

informed that his acting appointment as Network and Telecommunications Administrator

was going to be terminated due to the fact that his academic qualifications and suitability to

perform in the said role had been called into question by another WASA employee, Mr.

Simon Bahaw.

10. The Complainant contended that whilst he did not possess the qualification for the position of

Network and Telecommunications Administrator, which required that the position holder

have a BSc Degree in Computer Science, Computers and Telecommunication or Electrical



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and Computer Engineering (or an equivalent), he did in fact hold a Higher National Diploma

in Management Information Systems and a Postgraduate Diploma in Strategic Business

Information Systems. Despite this he was reverted to his substantive position of Technical

Officer on July 1, 2006.

11. The Complainant further alleged that subsequent to the 2006 meeting with Ms Haynes, Mr

Bahaw, who was his junior and of East Indian descent, was placed in the position of Acting

Manager, Network and Telecommunications, WASA, and as such was tasked with the

supervisory duties associated with the Network and Telecommunications Department.

12. Mr Simmons contended that he in turn questioned Mr Bahaw‟s qualifications, specifically

his BSc Degree in Information Technology from Canterbury University. The Complainant

maintained that Canterbury University is not an accredited tertiary level educational

institution and that moreover, the British Department for Innovation Universities and Skills

had noted that degrees from Canterbury University may not be acceptable and may even be

restricted or illegal in some jurisdictions.

13. Mr Simmons alleged that not only did WASA fail and/or refuse to investigate his allegation

that Mr Simon Bahaw, Acting Manager, Network and Telecommunications did not possess

the necessary qualification that would have enabled him to be rightfully promoted to the

position he occupied, but that additionally, when he (the Complainant) questioned Mr

Bahaw‟s appointment, the General Manager, Deputy Manager and certain human resources

personnel threatened to transfer him to another department. He was in fact transferred to the

Transport Division in October 2009. Further, he alleges that in November 2006, the then

Deputy General Manager of Information Technology informed him that in the event that an

employee‟s qualifications was called into question, that would be a matter for the Human

Resources Department.

14. The Complainant also alleged that since he raised a concern as to the validity of Mr Bahaw‟s

qualifications he has been continuously victimised and discriminated against by senior

officials of WASA.

The Respondent’s Submissions

15. The Respondent indicated that due to the fact that Mr Simmons did not possess the requisite

qualification for the position of Network and Telecommunications Administrator, which

required a BSc degree in Computer Science, Computers and Telecommunications or

Electrical and Computer Engineering, management made the decision to appoint Mr Bahaw



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to the managerial position due to the fact that he produced evidence of having completed a

BSc degree in Computer Science at Canterbury University.

16. By Statement of Recognition from the Accreditation Council of Trinidad and Tobago, dated

25th

March, 2010, however, the Respondent learnt that Canterbury University is not

recognised as an accredited university.

17. By letter dated 23rd

August, 2013, which was in response to the Commission‟s Supplemental

Notice dated 29th

July, 2013, the Respondent acknowledged that in light of this Statement of

Recognition, Mr Bahaw did not possess the requisite qualification for the position of Acting

Manager, Network and Telecommunications at the time of his appointment. The Respondent

continued by noting that Mr Bahaw‟s appointment was based on a combination of Managers‟

assessments, required job specific skills, qualification or training and tenure in the position.

The Respondent further stated that Mr Bahaw had, however, since completed a Master of

Business Administration Degree from the Australian Institute of Business in August 2013.

18. Additionally, by said letter, the Respondent also indicated that there was no written policy

governing action to be taken in the event that employees had submitted unaccredited

certification in support of applications for promotion. The Respondent went on to state that

in the event that such was to occur, the matter would be referred to the Human Resources

Department which would conduct the necessary investigations, and any necessary

disciplinary action (including but not limited to reviewing any promotion and/or

appointment) would be considered in line with the existing Collective Agreement.

19. The Respondent has maintained that the decision to transfer Mr Simmons out of the

Information Technology Department was not as a result of racial discrimination but was due

to a loss of confidence in the Complainant.

Analysis of the law

20. It is for the Complainant to prove, on a balance of probabilities, a contravention of the Act.

Per section 56 of the Act, in order for the Complainant to ground a claim of discrimination:

6 Section 5 reads as follows:

For the purposes of this Act, a person (“the discriminator”) discriminates against another person (“the aggrieved person”) on the grounds of status if, by reason of— (a) the status of the aggrieved person; (b) a characteristic that appertains generally to persons of the status of the aggrieved person; or (c) a characteristic that is generally imputed to persons of the status of the aggrieved person, the discriminator treats the aggrieved person, in circumstances that are the same or are not materially different, less favourably than the discriminator treats another person of a different status.



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1) He must establish persons with whom he is similarly circumstanced, that is, persons

who are in the same or not materially different circumstances;

2) Then he must show that he was treated differently and less-favourably;

3) Finally, he must show that there is no valid reason for this, and in particular, that the

reason for this is “on the grounds of status”.

The Comparators – persons similarly circumstanced

21. In Mohanlal Bhagwandeen –v- The Attorney General of Trinidad & Tobago [2004] UKPC

21, Lord Carswell explained at paragraph 18:

A claimant who alleges inequality of treatment or its synonym discrimination must

ordinarily establish that he has been or would be treated differently from some other

similarly circumstanced person or persons, described by Lord Hutton in Shamoon v

Chief Constable of the Royal Ulster Constabulary [2003] 2 All ER 26 at paragraph

71, as actual or hypothetical comparators. The phrase which is common to the anti-

discrimination provisions in the legislation of the United Kingdom is that the

comparison must be such that the relevant circumstances in the one case are the same,

or not materially different, in the other.

22. The United Kingdom courts have interpreted provisions similar to section 5 of the Act to

mean a comparison of “like with like” (per Shamoon v Chief Constable of the Royal Ulster

Constabulary; Dhatt v McDonalds Hamburgers Ltd. [1991] ICR 228. The above

notwithstanding, the Complainant is not expected to identify comparators who are clones in

every respect except race, but the circumstances of the comparators must be the same in all

relevant respects (per Madden v Preferred Technical Group CHA Ltd. and Anor. [2005]

IRLR 46).

23. The Complainant at hand has identified one (1) comparator, that is, Mr Simon Bahaw, who

was subsequently placed in the Acting Manager, Network and Telecommunications position

after he (the Complainant) was terminated as Network and Telecommunications

Administrator. It should be noted that the Complainant must show that the relevant

circumstances as existing between himself and those person(s) he cites as comparators were

the same or not materially different. Thus, the Complainant has asserted that it can be

advanced that both he and his comparator share similar circumstances, in that, they both did

not possess the requisite qualifications for the position, yet, whilst he (the Complainant) was

terminated from acting as the Network Administrator once his qualifications were called into

question, the same action was not taken once queries were raised with respect to his

comparator‟s qualifications.



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Differential and Less favourable treatment

24. In establishing less favourable treatment, it is sufficient for the Complainant to show that he

was deprived of a choice which was valued by him on reasonable grounds.

25. The case of R v Birmingham City Council ex parte Equal Opportunity Commission [1989]

All ER 769 (HL), concerned a complaint filed on behalf of the parents of certain girls,

against the City Council. The Council made 600 spaces available at voluntary aided grammar

schools for eleven year olds in eight selective single sex schools; however, selection

procedures resulted in 390 places being allocated to boys and 210 to girls. The Equal

Opportunity Commission sought a declaration that this amounted to a breach of the Sex

Discrimination Act. In coming to its decision Their Lordships were required to construe the

meaning of “less favourable treatment” as found at section 1(1)(a) of the Sex Discrimination

Act, 1975 (UK).7 The majority of the House held that the Council's provision of more places

for boys than girls in selective secondary education treated girls „less favourably‟ than boys

within the meaning of s. 1(1)(a) of the Sex Discrimination Act. Lord Geoff stated:

“In order to establish that there was less favourable treatment of girls by reason of

their having been denied the same opportunities as boys, it was not necessary for the

Commission to show that selective education is „better‟ than non-selective education.

It is enough that, by denying the girls the same opportunity as the boys, the Council

was depriving them of a choice which was valued by them, or at least by their parents,

and which (even though others may take a different view) is a choice obviously

valued, on reasonable grounds, by many others.”

26. In the matter at hand, it can be argued that the difference in treatment once the nature of the

individuals‟ qualifications was revealed may amount to differential and less favourable

treatment in that the Complainant was immediately removed from his position once it was

revealed that he did not possess the requisite qualifications, however, the Respondent did not

act in like manner with his comparator as revealed by the fact that up to three (3) years after

determining that Mr Bahaw‟s qualifications were unaccredited, he still had not been removed

from the position.

7 Section 1(1) (a) Sex Discrimination Act of the UK reads

A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this act if – (a) on the ground of her sex he treats her less favourably than he treats or would treat a man.



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Reason for differential treatment

27. Lord Nichols, in the judgment of the House of Lords, in Shamoon v Chief Constable of

Royal Ulster Constabulary [2003] 2 All E.R. 26, went on to explain that in analysing an

allegation of discrimination, in some cases more focus should be placed on the explanation

for the reason for the treatment rather than on choice of comparators, or a discussion of less

favourable treatment. At paragraphs 11 and 12:

11. This analysis seems to me to point to the conclusion that employment tribunals may

sometimes be able to avoid arid and confusing disputes about the identification of the

appropriate comparator by concentrating primarily on why the claimant was treated as

she was. Was it on the proscribed ground which is the foundation of the application? That

will call for an examination of all the facts of the case. Or was it for some other reason? If

the latter, the application fails. If the former, there will usually be no difficulty in

deciding whether the treatment, afforded to the claimant on the proscribed ground, was

less favourable than was or would have been afforded to others.

12. The most convenient and appropriate way to tackle the issues arising on any

discrimination application must always depend upon the nature of the issues and all the

circumstances of the case. There will be cases where it is convenient to decide the less

favourable treatment issue first. But, for the reason set out above, when formulating their

decisions, employment tribunals may find it helpful to consider whether they should

postpone determining the less favourable treatment issue until after they have decided

why the treatment was afforded to the claimant. Adopting this course would have

simplified the issues, and assisted in their resolution, in the present case.”

28. On considering the facts of the instant case, the Commission is of the opinion that this is a

matter where emphasis ought to be placed on examining the reasons for the treatment meted

out to the Complainant.

29. The test of „causation‟ used in section 5 of the Act is expressed as ‘on the ground of’ and

“by reason of”.8 In considering the issue of causation, courts in Australia and in England

initially used the „but-for‟ test where the question asked is whether „but for‟ the particular

attribute (sex, race etc.) the person would have been subjected to the treatment or conduct,

8 Section 5 of the Act reads:

For the purposes of this Act, a person (“the discriminator”) discriminates against another person (“the aggrieved person”) on the grounds of status if, by reason of – (a) the status of the aggrieved person; (b) a characteristic that appertains generally to persons of the status of the aggrieved person; or (c) a characteristic that is generally imputed to persons of the status of the aggrieved person, the discriminator treats the aggrieved person, in circumstances that are the same or are not materially different, less favourably than the discriminator treats another person of a different status.



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but now preference is given to the „true basis‟ test where the question asked is why was the

aggrieved person treated less favourably? Was it “because of”, “by reason of”, that person‟s

particular attribute (sex, race etc.)?

30. The ‘but for’ test. This is perhaps best illustrated by the approaches of the House of Lords in

James v. Eastleigh Borough Council and the High Court of Australia in IW v City of Perth.

31. James v. Eastleigh Borough Council [1990] ICR 554, concerned a claim by a 61-year old

man, who said that he was treated less favourably than his wife who was of a similar age,

whereby he was required to pay an entrance fee to a swimming pool because he was not of

retirement age but she was: the retirement age for men was 65 and that for women was 61.

Lord Bridge of Harwich, at page 568a, identified the question and the answer as being:

„Would the plaintiff, a man of 61, have received the same treatment as his wife but for his

sex?‟ An affirmative answer is inescapable.”

32. Lord Goff said, at page 576:

“I incline to the opinion that, if it were necessary to identify the requisite intention of the

defendant, that intention is simply an intention to perform the relevant act of less

favourable treatment. Whether or not the treatment is less favourable in the relevant

sense, that is, on the ground of sex, may derive either from the application of a gender-

based criterion to the complainant, or from selection by the defendant of the complainant

because of his or her sex; but, in either event, it is not saved from constituting unlawful

discrimination by the fact that the defendant acted from a benign motive. However in the

majority of cases, I doubt if it is necessary to focus upon the intention or motive of the

defendant in this way. This is because, as I see it, cases of direct discrimination under

section 1(1)(a) can be considered by asking the simple question: would the complainant

have received the same treatment from the defendant but for his or her sex? This simple

test possesses the double virtue that, on one hand, it embraces both the case where the

treatment derives from the application of a gender-based criterion, and the case where it

derives from the selection of the complainant because of his or her sex; and on the other

hand it avoids, in most cases at least, complicated questions relating to concepts such as

intention, motive, reason or purpose, and the danger of confusion arising from the misuse

of those elusive terms.”

33. In IW v City of Perth (1997) 191 CLR 1, both Toohey and Gummow JJ saw some utility in

the „but for‟ test where the alleged discriminator is not an individual but a collection of

individuals or a corporate body. In that case, the City Council of Perth, by a vote of 13

against and 12 for, rejected an application for planning approval for a drop-in centre for

persons suffering with HIV. The majority (Brennan CJ, Dawson, Guadron, McHugh and

Gummow JJ) rejected IW‟s submission that the Council had discriminated against him on the



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ground of his impairment and dismissed the appeal. Toohey and Kirby JJ dissented. Toohey J

said at p. 31 that as long as the discriminatory factors were one ground for the decision, even

if not the principal ground, the decision would contravene the legislation. His Honour added

at p. 32 that while the „but for test‟ has been rejected as a definitive test for causation, it may

provide some guidance in circumstances where, as in this case, a corporate body is the

decision maker.

“In the present case each Councillor in the majority determined the outcome by the vote

he or she cast. If one or more of these Councillors voted on an impermissible ground,

whether or not that was “the dominant or substantial reason” (s 5), that vote determined

the outcome because the result would have been different „but for‟ the vote of that

Councillor”.

34. The ‘true basis’ test. This is perhaps best illustrated by the approaches of the House of Lords

in Nagarajan v London Regional Transport Board and Chief Constable of West Yorkshire

Police v Khan and the High Court of Australia in Purvis v State of New South Wales.

35. In Nagarajan v London Regional Transport Board [1999] IRLR 572, Lord Nichols in

handing down the judgment of the House of Lords, explained that in cases of discrimination,

the better approach would be to focus on the reasons for the differential treatment. This was a

case of an allegation of discrimination based on race; His Lordship said that the crucial

question to be answered was: was the reason for the less favorable treatment on the grounds

of race or was it for some other reason?

“Thus, in every case it is necessary to enquire why the complainant received less

favourable treatment. This is the crucial question. Was it on grounds of race? Or was it

for some other reason, for instance, because the complainant was not so well qualified for

the job? Save in obvious cases, answering the crucial question will call for some

consideration of the mental processes of the alleged discriminator. Treatment, favourable

or unfavourable, is a consequence which follows from a decision. Direct evidence of a

decision to discriminate on racial grounds will seldom be forthcoming. Usually the

grounds of the decision will have to be deduced, or inferred, from the surrounding

circumstances.”

36. Lord Nichols reaffirmed this approach in the subsequent judgment of the House of Lords in

Chief Constable of West Yorkshire Police v Khan [2001] 4 AER 834. Here an officer

brought proceedings to challenge his non-promotion and alleged that he was treated less

favourably because of his race. He sought an employment recommendation but this was

denied on account of the pending proceedings. He brought additional proceedings claiming



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that he was being victimised contrary to section 2(1)9 of the UK Race Relations Act. In

construing the phrase „by reason that‟ as used in the section, Lord Nichols said at para. 29:

“Contrary to views sometimes stated, the third ingredient ('by reason that') does not raise

a question of causation as that expression is usually understood. Causation is a slippery

word, but normally it is used to describe a legal exercise. From the many events leading

up to the crucial happening, the court selects one or more of them which the law regards

as causative of the happening. Sometimes the court may look for the 'operative' cause, or

the 'effective' cause. Sometimes it may apply a 'but for' approach. For the reasons I

sought to explain in Nagarajan's case [1999] 4 All ER 65 at 70–72, a causation exercise

of this type is not required either by s 1(1)(a) or s 2. The phrases 'on racial grounds' and

'by reason that' denote a different exercise: why did the alleged discriminator act as he

did? What, consciously or unconsciously, was his reason? Unlike causation, this is a

subjective test. Causation is a legal conclusion. The reason why a person acted as he did

is a question of fact.”

37. In Purvis v State of New South Wales (2003) 217 CLR 92, a student with brain damage was

excluded from a high school because of aggressive behaviour including hitting and kicking.

The majority (Gleeson CJ, Gummow, Hayne, Heydon and Callinan JJ) decided the appeal in

favour of the State of New South Wales on the basis of the differential treatment or

comparator element of discrimination (less favourable treatment than the treatment the

perpetrator gave or would have given to a person without that attribute). Although

interpreting the words ‘because of’ rather than ‘on the ground of’ the majority of the High

Court explained that the accepted test for causation in the context of anti-discrimination

legislation is to ask why the aggrieved person was treated as they were, the focus is on the

„true basis‟ (per Gleeson CJ at 102), „genuine basis‟ (Gleeson CJ at 102), or the „real reason‟

(McHugh & Kirby JJ at 144) for treatment. In a joint judgement with McHugh J, Kirby J re-

visited passages in IW v City of Perth at p 143:

“It is true that statements of Toohey J and Gummow J in IW v City of Perth might appear

to support a “but for” test in discrimination cases. Kirby J, after referring to the “reasons

for the conduct of the alleged discriminator”, said that the “but for” test applied by the

9 Section 2(1) of that Act provides for discrimination by victimization similar to section 6 of our Act. It reads:

'A person (“the discriminator”) discriminates against another person (“the person victimised”) in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has— (a) brought proceedings against the discriminator or any other person under this Act; or (b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act; or (c) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person; or (d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.'

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House of Lords in James and by this Court in Banovic and Waters was “the correct test”.

In IW v City of Perth, however, the references to the “but for” test were expressed in

relation to a decision of a corporate body that was made by its Councillors casting votes.

The weight and course of authority no longer accepts that the “but for” test is the

accepted test of causation in the context of anti-discrimination legislation. That is because

that test focuses on the consequences for the Complainant and not upon the mental state

of the alleged discriminator.”

38. The majority in Purvis (Gummow, Hayne and Heydon JJ) did not refer to the „but for‟ test.

Their Honours adopted the „true basis‟ test and emphasized that the motive or intention of the

alleged perpetrator may be relevant. At page 163:

For present purposes, it is enough to say that we doubt that distinctions between motive,

purpose or effect will greatly assist the resolution of any problem about whether

treatment occurred or was proposed “because of” disability. Rather, the central question

will always be – why the aggrieved person was treated less favourably, was it “because

of”, “by reason of”, that person‟s disability? Motive, purpose, effect may all bear on that

question. But it would be a mistake to treat those words as substitutes for the statutory

expression “because of”.

Their Lordships said that the question a Tribunal should ask when addressing the causation

element of direct discrimination is whether the person‟s sex, race and such like (including the

extended definitions of those grounds) is at least one of the „real‟, „genuine‟ or „true‟ reasons

for the treatment. For that to be the case, that reason must have been the reason which,

whether alone or in combination with other reasons, was the true basis for the treatment.

39. As such, the question to be answered with respect to the Complainant‟s allegations is what

was the real reason for the Complainant being treated as he was? Was it for the reason

advanced by the Complainant or for other reasons?

40. Whilst the Complainant has argued that he was discriminated against on the basis of his race,

he has not provided what could reasonably be deemed direct evidence of discrimination

based on his race.

41. However as the court in Madarassy v Nomura International plc [2007] ICR 867 noted:

“There is probably no other area of civil law in which the burden of proof plays a larger

part than in discrimination cases... Most cases turn on the accumulation of multiple

findings of primary fact, from which the court or tribunal is invited to draw an inference

of a discriminatory explanation of those facts.”



Page 14 of 18

42. Thus, in Bennett v Everitt (1988) EOC 77, 261, Einfeld J, noted that:

“In the absence of a clear statement of bias or expression of a discriminatory intention,

there may be no direct evidence to support an allegation of discrimination and a

complainant may have to attempt to rely upon inferences from the surrounding

circumstances – often expressed in terms such as „there could be no other reason for the

decision other than my race‟.”

43. Additionally, it must be noted that courts worldwide have accepted the fact that there is not

always a need to prove that a respondent intended to discriminate, so that racial

discrimination can occur unconsciously. However, what is clear is that there must be some

measure of causal connection between the act being complained about and the race of the

complainant. Moreover, in cases involving employment, complainants may face particular

difficulties since one must bear in mind as well that discrimination in the sense of making a

distinction between applicants for the purpose of recruiting and/or promoting workers would

inevitably take into consideration certain features that are personal to the individual

candidates, so that in making a distinction between candidates, employers may invariably be

influenced by various preconceptions, prejudices, and stereotypes that may be linked to

certain characteristics including one‟s race.

44. Lastly, as suggested by a specialist in the area of discrimination10

:

“Employment complaints are notoriously difficult and the burden of proof on a

complainant is „virtually insuperable‟ because the alleged racism „quickly becomes

interwoven with bona fide considerations of merit, including formal qualifications,

experience, workplace practices and relations with one‟s peers‟.”

45. Thus, in the matter at hand, whilst it has been noted by the Respondent that any perceived

adverse decisions taken with respect to the Complainant were not motivated by issues of race

but were in fact due to their loss of confidence in the Complainant‟s abilities to function in

the roles he was placed in, it must also be noted that said loss of confidence was not

mentioned at the point in time of his termination as Network Administrator, but was only

raised as an issue at a later date.

10

Margaret Thornton, ‘Revisiting Race’ in The Race Discrimination Act 1975: A Review (Canberra: AGPS, 1995) at

81-99



Page 15 of 18

Conclusion and Recommendations

46. The investigation into the complaint as lodged by Mr Simmons indicates that the

Complainant has established the first two (2) requirements needed to ground a claim of

discrimination, those being, the identification of a comparator and establishing that there was

differential and less favourable treatment. As concerns the final requirement, that is,

establishing that the reason for his differential treatment was based upon a „status‟ as

identified by the Act, the Complainant has sought to allege that he was discriminated against

on the basis of race. It must be noted, however, upon an analysis of the documentation

provided by both sides, there is a lack of direct evidence establishing discrimination based

upon his race.

47. In attempting to determine the reasons for the differential treatment, that is, the true basis for

the treatment, one has to note that the Respondent has denied Mr Simmons‟ claim of racial

discrimination and has instead countered by asserting that Mr Simmons was transferred to

the Transport Division as a consequence of: his refusal to follow lawful instruction; a loss of

confidence in his ability to discharge his duties in a responsible and effective manner; and a

feeling that his (Mr Simmons‟) continued presence in the Management Information Systems

Department would be a potential security risk.

48. The fact remains that his comparator was of a different race to him, and was in fact treated

more favourably than him with respect to opportunities for accessing promotions.

Additionally, the Respondent‟s actions, even upon learning (in 2010) of Mr Bahaw‟s lack of

suitable qualification (due to his unaccredited degree), of maintaining him in the position of

Acting Manager, Network and Telecommunications, is troubling. Bearing this in mind,

coupled with the statements of Lord Nichols in Nagarajan (paragraph 44 above) that

“...treatment, favourable or unfavourable, is a consequence which follows from a decision.

Direct evidence of a decision to discriminate on racial grounds will seldom be forthcoming”,

one cannot incontrovertibly assert that there was no racial motivation behind the less

favourable treatment. Owing to this actuality; the existence of certain other facts which are

in dispute between the parties; and the failure of the parties to resolve this matter through

conciliation, the Commission will refer this matter to the Equal Opportunity Tribunal for

resolution.

49. Per section 41(4) of the Act, the Equal Opportunity Tribunal has jurisdiction-

(a) To hear and determine complaints referred to it by the Commission;

(b) To require persons to attend before it for the purpose of giving evidence and

producing documents; and

(c) To make such declarations, orders and awards of compensation as it thinks fit.



Page 16 of 18

50. In light of the above, in conjunction with the Complainant‟s desire to have this matter

resolved, and pursuant to s 39 of the Act, the Commission shall:

a. send a copy of this report to the parties to the complaint;

b. publish the report;

c. make the report available for inspection by members of the public;

d. determine from the parties whether resolution has been otherwise achieved;

e. should the matter remain unresolved, inquire of the Complainant whether he

wants to go before the Tribunal

f. if the Complainant consents, initiate proceedings before the Tribunal on his

behalf.

Dated this 17th

day of April, 2014



Page 17 of 18

APPENDIX I: INFORMATION REQUESTED FROM RESPONDENT

By Notice dated 9th

April, 2013, the Respondent was asked to provide the following:

Please inform on what steps have been taken to investigate this matter and what the result

has been.

In particular, has any assistance been sought from the Accreditation Council of Trinidad

and Tobago and/or from the Ministry of Foreign Affairs and/or from the British High

Commission to Port-of-Spain as to the status of Canterbury University? If not please

explain why not.

Please include copies of all relevant correspondence and documents.

By Supplemental Notice dated 29th

July, 2013, the Respondent was asked to provide the

following information:

Please confirm that given that Mr Bahaw‟s degree is unaccredited-

He did not hold the requisite qualifications for the post that he is currently

in at the time he was appointed into said post; and

He still does not hold the requisite qualifications for that post

If your response to the above questions is that he holds the qualifications, please provide

copies of same.

Please explain WASA‟s policy with regards to dealing with employees who submit

unaccredited certification, particularly when such academic qualifications were required

for the position that employee holds at WASA.



Page 18 of 18

APPENDIX II: LIST OF DOCUMENTS

Documents submitted by the Complainant

Complaint lodged with the Equal Opportunity Commission (the Commission), dated 30th

October, 2012.

Memo to Complainant, dated 23rd

August 2012, concerning the Complainant‟s

outstanding Grievance – Overlooked for Promotion.

Copy of newspaper article (Trinidad Guardian, 12th

October 2012), “Worker with

unaccredited degree promoted”.

Memo from Complainant to Ken Mahabir, Director Human Capital Development,

WASA, dated 17th

August 2012.

Emails from the Complainant to Mr Kazim Ishmael dated 11th

April 2012 and 12th

April

2012.

Memo from Complainant to Leroy Baptiste dated 3rd

May 2012.

Memo from Complainant to Ken Mahabir dated 16th

April 2013.

Documents submitted by the Respondent

Statement on Recognition from the Accreditation Council of Trinidad and Tobago with

respect to the status of Canterbury University.

Letter from CTS College of Business and Computer Science Ltd, dated 21st August 2013,

concerning Mr Bahaw‟s completion of MBA programme.