Post on 10-Jul-2020
Page 1 of 33
REPUBLIC OF TRINIDAD AND TOBAGO
IN THE COURT OF APPEAL
Civil Appeal No. 11 of 2008
H.C.A. No. 1234 of 2004
IN THE MATTER OF THE CONSTITUTION OF
THE REPUBLIC OF TRINIDAD AND TOBAGO
(“THE CONSTITUTION”) ENACTED AS THE SCHEDULE
TO THE CONSTITUTION OF THE REPUBLIC OF
TRINIDAD AND TOBAGO ACT, CHAPTER 1:01
BETWEEN
1. MICHAEL BOXHILL
2. ROY DELANCY
3. ANTHONY PHILLIPS
4. EDWARD WILLIAMS
5. ANTHONY MC DONALD
6. PHILIP ANDREWS
Appellants
AND
THE PORT AUTHORITY OF TRINIDAD AND TOBAGO
Respondent
PANEL: A. MENDONÇA, J.A.
P. JAMADAR, J.A.
N. BEREAUX, J.A.
APPEARANCES: R. Maharaj SC and V. Maharaj for the appellants
E. Prescott SC and S. Alexander for the respondent
DATE DELIVERED: 28 February 2013
I agree with the judgment of Bereaux, J.A. and have nothing to add.
A. Mendonça
Justice of Appeal
Page 2 of 33
I too agree with the judgment of Bereaux, J.A. and have nothing to add.
P. Jamadar
Justice of Appeal
JUDGMENT
Delivered by Bereaux, J.A.
[1] This is an appeal from the decision of Aboud J in which he dismissed the
appellants’ notice of motion. The appellants are employees of the respondent,
which is the Port Authority of Trinidad and Tobago. In this appeal they allege
that the respondent has breached their right to equality of treatment by a public
authority. This right is guaranteed to them by section 4(d) of the Constitution of
Trinidad and Tobago. There were other breaches alleged by the appellants which
were also dismissed by the trial judge but these have not been pursued on appeal.
[2] The essence of the appellants’ claim is that they were denied promotion to
certain positions within the respondent’s organisation. They alleged that the
respondent in failing to take steps to promote them to the relevant positions (Daily
Paid Permanent Worker or Port Follower) acted arbitrarily and treated them
unequally.
[3] The appellants contend that the conduct of the respondent in failing to
promote them amounts to mala fides and shows a lack of good faith in its actions
towards them. They stated that its conduct was intended to hurt them, constituted
“deliberate and intentional exercise of power not in accordance with the law,
which resulted in the erosion of the appellants’ rights” and amounted to
“irresponsible and reckless action” in that the respondent did not care whether
their rights were eroded or not.
Page 3 of 33
[4] The respondent raised two preliminary issues at the trial which are still
live by virtue of its cross appeal :
(i) that the relief sought by the appellants arose in private law as opposed to
public law
(ii) that there was an effective alternative remedy available to the appellants
under the Industrial Relations Act, Chap 88:01.
These issues were raised by the respondent as part of its submission that the
action was an abuse of process. On the first preliminary issue, two subsidiary
questions arise -
(a) whether the respondent was a public authority
(b) even if it is, whether the acts complained of were public acts, sufficient to
justify an application under section 14 of the Constitution.
The respondent contended that -
(1) the respondent was not part of the executive arm of the state, or
alternatively, the powers which the appellants have sought to
impugn, cannot be construed as acts of the state and were not acts
in the exercise of the executive or prerogative powers;
(2) the appellants were not seeking to protect a public right
[5] As to the second preliminary issue, the respondent contended that the
appellants, as workers and members of a recognised majority union, the Seamen
and Waterfront Workers Trade Union, (“the Union”) were entitled to seek redress
for any dispute with the respondent over terms and conditions, under the
provisions of the Industrial Relations Act Chapter 88:01.
[6] The judge held that the respondent was a public authority. He also held
there was a public law ingredient involved in questions concerning the promotion
of workers. On the second preliminary issue he found that there was no alternative
procedure open to the appellants because they could not as workers, individually
pursue proceedings in the Industrial Court in respect of their non promotion, more
so since their trade union, through which the appellants could pursue their
grievances, had chosen not to initiate action in the Industrial Court on their behalf.
Page 4 of 33
As to the substantive issues of breach of sections 4(b) and 4(d), he found, inter
alia, no breach of these provisions and dismissed the motion.
[7] The appellants filed fifteen grounds of appeal in respect of the dismissal of
the substantive motion. The respondent cross appealed against the dismissal of
both preliminary objections. At the date of hearing of the appeal, we were
informed that all the appellants had been variously promoted to the permanent
establishment in 2007 and 2008. This was subsequently confirmed by letter from
the appellants’ attorneys. The promotions, would at best, affect only the quantum
of damages to be awarded.
Summary of decision
[8] The appeal and cross appeals must be dismissed. I find as follows :
(i) The respondent is a public authority for the purposes of section 4 and 5 of
the Constitution. The judge was correct to find that it was.
(ii) The fact that the act of a public authority may have been committed in the
course of a contract or some other private law capacity does not
necessarily preclude a litigant from bringing a successful constitutional
claim. Distinctions between public law and private law as those terms
may be used in judicial review may not always apply in proceedings under
section 14 of the Constitution. Much will turn on the nature of the act
complained of, the nature of the allegations and the facts and
circumstances of their occurrence.
(iii) The right to pursue a trade dispute before the Industrial Court in respect of
a breach of a worker’s terms and conditions is an effective alternative
remedy available to the worker. The fact that it is to be pursued through a
representative union in no way diminishes its effectiveness. The
appellants were entitled to bring their constitutional motion alleging a
breach of section 4 (d), provided they could demonstrate that their case
contained a feature which rendered it appropriate to do so. A refusal of
the Union on spurious grounds to prosecute their claim, would certainly
Page 5 of 33
constitute such a basis. Indeed, even if there are good reasons for a union’s
refusal to pursue a claim before the Industrial Court, this may not preclude
a constitutional claim if the applicant can prove a breach of a right under
section 4 of the Constitution. The fact of a breach of a right as well as the
refusal of the Union to pursue a claim in the Industrial Court however
justified, would constitute a special feature or exceptional circumstances
(per Jaroo v. Attorney General of Trinidad and Tobago [2002] 2 WLR
705 and AG v. Ramanoop [2005] 4 LRC 301 at 310). The appellants, in
this case have however brought no proper evidence of the union’s refusal
or of its reasons for doing so. However, since the respondent consulted
with the Union and the Union agreed with the promotions which resulted
in the by-passing of the appellants, it is inferential that the Union would
not pursue the respondents’ claims before the Industrial Court. It was a
sufficient feature to enable the prosecution of their constitutional motion
in this case subject to the appellants proving a breach of their rights.
(iv) A worker who alleges a breach of section (4) of the Constitution, must, in
the face of an existing alternative remedy in the Industrial Court provide
cogent evidence of the refusal of the Union to pursue his complaint before
that court and its reasons for refusing.
(v) But, given the Union’s participation in the promotion process, the
appellants had a heavy burden of proving inequality and unequal treatment
under section 4(d) of the Constitution, absent any allegation of collusion,
by the Union in the acts of discrimination by the employer. Without any
such complaints the appellants’ case did not get off the ground.
(vi) Once the promotions made after the first negotiations were found to have
been properly made, the appellants could not thereafter be similarly
circumstanced with workers who were again promoted in the second
negotiations.
(vii) In any event Aboud J was right that there was no breach of section 4(d).
Background
Page 6 of 33
[9] The following summary of the facts is taken from each party’s evidence.
The respondent is a body corporate established by the Port Authority Act Chap
51:01 (“the Act”) for the purpose of operating port services at the port of Port of
Spain, Trinidad and the port of Scarborough, Tobago as well as the purpose of
operating the Government shipping service between the islands of Trinidad and
Tobago.
[10] It is quite obvious from its functions that the respondent performs public
services and that those functions are public functions. Under the provisions of
section 8 of the Act, the respondent is charged with several functions including,
the development of harbours in Trinidad and Tobago and the operating of port
services and the government shipping service between Trinidad and Tobago.
[11] The development of harbours and the operation of port services is defined
to include -
(a) the provision and maintenance of facilities for the entry and berthing of
ships, the landing and embarkation of passengers, the loading, unloading,
storage and warehousing of cargo
(b) the provision and maintenance of equipment for hoisting, lifting and
transportation of cargo
(c) the erection, equipment and maintenance of quays, wharves, jetties, locks
and piers
(d) the provision of docking facilities, slipways and machine shops
(e) the provision of lights and beacons subject to the approval of the Harbour
Master, towage services, fire-fighting services, watering services,
bunkering services, rescuing services, dredging services, salvage services,
repair services and such other services as are ordinarily required by ships
coming into port in the course of their voyages. The five to nine
commissioners appointed to serve on the Port Authority are appointed by
the Cabinet of Trinidad and Tobago per section 3(2) of the Act. Their
remuneration is determined by the Cabinet. Its budget must be laid on the
table of each house of Parliament as must its statement of accounts which
Page 7 of 33
is to be transmitted to the President after the end of each financial year.
Dues, charges and fees may be charged by the respondent in accordance
with regulations made under section 75.
[12] In addition to its register of permanent employees, the respondent employs
a system of rolls to ensure that there is a reliable workforce at the port of Port of
Spain, to satisfy any demand it may have for additional labour. The four types of
rolls established by the respondent are, in descending order of priority: the Port
Followers Roll, the Temporary Roll, the Retrenchee Roll and the Seasonal Roll.
[13] The Port Followers Roll comprises a list of persons eligible to accept work
offered by the respondent periodically, when there is a need by the respondent for
extra labour. The Temporary Roll comprises a list of persons engaged by the
respondent solely on a temporary basis, including the appellants. The Retrenchee
Roll comprises the list of persons who were retrenched by the respondent in the
period 1989 to 1993. The Seasonal Roll comprises a list of names of persons who
are eligible for employment by the respondent on a seasonal basis such as during
the Christmas season or at other times during the year.
[14] Only the workers who are on the Port Register of Permanent Workers are
guaranteed work by the respondent. The workers on the respective rolls are
assigned work if the need arises and subject to their availability and skill to do the
required task. When the need for additional labour arises, the names of workers
on the Port Followers Roll will first be called upon to supplement the daily labour
force. Once the workers on that roll have all accepted (or refused) and have been
assigned work by the respondent, the workers on the other rolls, in descending
order of priority, would be called upon and assigned work.
[15] The appellants’ contract of employment is contained in a registered
collective agreement negotiated between the respondent and the union. The
Union is certified as the recognized majority Union pursuant to the Industrial
Relations Act Chapter 88:01 in respect of all the respondent’s non-administrative
Page 8 of 33
workers. The collective agreement recognises and governs permanent and
temporary workers alike. Permanent workers are classified as workers on the
Register of Permanent Employees and temporary workers are classified as
workers on the rolls. At all material times the appellants have been members of
the union.
[16] From 1976, the Union (on behalf of the workers, including the appellants)
and the respondent have negotiated and registered several collective agreements
for hourly and monthly paid workers. A collective agreement made between the
Union and the respondent and meant to govern the period 1990-1993 was
executed in 1995. Another collective agreement, which governs the period 1999-
2002, was executed in April 2002. As a result of these negotiations some workers
on the temporary, retrenchee, and seasonal rolls were reclassified or promoted to
the Port Followers Roll or to the Register of Permanent Employees.
[17] The appellants were first employed, between the years 1978 to 1980.
They are all equipment operators having commenced their employment as
temporary longshoremen. They were not promoted to the roll of Port Followers
after the first negotiations but they allege that workers who were similarly
circumstanced, were. The respondent contended however, that it promoted the
workers in consultation with the Union during the negotiation process. It also
claimed that the appellants were not similarly circumstanced with the workers
who were promoted. At the end of the second negotiations, after the motion was
filed, the appellants were promoted to the Port Followers Roll.
[18] However, the appellants alleged that other similarly circumstanced
workers were promoted from the Port Followers Roll to the Register of Permanent
Workers. They contended that the daily paid temporary workers perform duties
which were not materially different from those performed by the daily paid
permanent workers or workers on the Port Followers Roll but that the daily paid
temporary workers do not receive the same financial benefits as the daily paid
permanent workers or Port Followers Roll workers.
Page 9 of 33
[19] Finally, the appellants claim that they have been discriminated in respect
of training programmes in that port followers who had less service than they were
given more favourable treatment.
[20] The appellants gave particulars of the claims of different treatment in
respect of each of them, in which they spell out the names of other persons who
were treated more favourably than they, in terms of promotion and on the job
training. These include workers who were voluntarily separated, or who were
retrenched or dismissed but then re-employed and given ranking senior to the
appellants. They allege that daily paid temporary workers with less service than
they, were promoted to the Port Followers Roll and from the Port Followers Roll
to the Daily Paid Permanent Workers Roll.
[21] Each appellant gave some specifics of the allegation of different and
unequal treatment in respect of on the job training. Particulars of persons who
were given such preferential treatment are set out. In most cases the names of
those persons are repeated in all of the particulars. Boxhill, Phillips, Williams and
Mc Donald complained of having class 5 and 7 certificates to operate certain
equipment but being passed over for training and operation of these pieces of
equipment. Andrews made a similar complaint except that he has a class 5
certificate only. Williams also complained that he has been discriminated against
because of his age in that he was refused training on certain equipment because he
was too old to receive such training. He allege that older persons and (as well as
junior persons) were given such training.
[22] In response, Mr. Ifill, on behalf of the respondent, said it was incorrect to
say that the appellants worked continuously from the dates when they received
their first temporary assignments. By the very nature of their employment they
were employed intermittently on a temporary basis. Whether they were employed
depended entirely on the availability of work, their level of skill and competence
and their own availability to accept the tasks that may be assigned by the
respondent. The appellants were at liberty, to pursue their independent means
Page 10 of 33
of income and to supplement their personal incomes, given the temporary nature
of their employment. The available payment records of the appellants’
employment history showed that between 1986 - 1993 they did not make
themselves available for work.
[23] This allegation was refuted by the respondents. They alleged that that
period (1986-1993), was a period of recession at the Trinidad and Tobago
economy during which there was no work available at the port for them, as
opposed to them being unavailable. They also alleged that the respondent did not
regard their absence from work during that period as a break in service. Rather,
they were treated as workers who did not break their service and were entitled to
vacation leave with pay. The judge accepted the appellants’ contention.
[24] Mr. Ifill deposed that the respondent and the Union pursuant to good
industrial relations practice, entered into negotiations in 1992 (the first
negotiations) and 2003 (the second negotiations) to determine which worker on
the rolls will be reclassified or promoted to the Port Followers Roll or to the
Register of Permanent Workers based on the need for additional labour at those
times. Those workers who were promoted or reclassified were chosen by the
respondent together with the union, through this negotiating and consulting
machinery. The respondent could not promote or transfer the appellants without
consultation and agreement with the Union and without reference to the demand
for additional labour at the Port of Spain port.
[25] He said that the criteria developed by both the respondent and the Union
for the transfer or promotion of workers from one roll to the other are as follows -
(a) by reference to the size of the workforce needed on a particular roll
(b) the qualifications of the particular worker to perform the work of
equipment operator
(c) the availability and willingness of the worker to perform work.
The administrative system and procedures employed by the respondent have been
devised over the years in negotiations with the Union and are in compliance with
Page 11 of 33
the several collective agreements negotiated and registered by the respondent and
the union. This system guarantees fair and equal treatment to the respondent’s
labour force and guarantees that its workers including appellants are treated fairly
and consistent with good industrial relations practices.
[26] At the time of the first negotiations, all of the appellants were found by
both the Union and the respondent to be unqualified for promotion or
reclassification for the following reasons -
(a) they did not have the requisite experience or qualification to be accepted
as equipment operator,
(b) their high level of absenteeism at the respondent since their first date of
employment and
(c) they were not available for selection at the time.
All the workers who were either unavailable for work or who did not have the
requisite qualifications were, like the appellants, not promoted or transferred to
the Port Followers Roll. Moreover, no other worker was reclassified or promoted
without consultation with the Union or without representations having been made
on their behalf by the union.
[27] Effective 1986, the respondent required licensing certification for
employees to operate the respondent’s equipment. This was part of a safety
system which the respondent introduced to minimize the incidents of industrial
accidents. The licencing certification required was a minimum of Class IV
driver’s permit. While other employees had this certification and were duly
accepted on the roll as equipment operators in 1993, the appellants did not have
this qualification at the date when promotions and reclassifications were being
effected by the respondent (1992-1993).
[28] Mr. Ifill added that in any event, the respondent has since promoted or
reclassified the appellants to the Port Followers Roll since the second promotion
or transferring exercise with the union.
Page 12 of 33
[29] Mr. Ifill stated that the workers identified by the appellants as having
bypassed them were not similarly circumstanced to any of them. At the dates of
their promotion those workers were among the names recommended for
promotion by the union, they each possessed a driver permit of at least a class IV
had a far superior attendance record than the first appellant and was available for
work at that time. The appellants possessed only a driver’s permit of class III, had
poor attendance records and were not recommended for promotion by the union.
[30] Indeed several workers whose names preceded the appellants on the
temporary roll were also not promoted for the very same reasons. The names of
those persons, who had more years of service than the appellants and were not
promoted to the Port Followers Roll, still appear on the Temporary Roll.
[31] He added that it is also untrue that the appellants were discriminated
against in the job training programmes. The first appellant received on the job
training from 2000 to date on Container Lifts, Mobile Crane operations, tractor
trucks, Manitowoc M 250 Mobile Crane and he also underwent hearing and eye
tests provided by the respondent.
[32] The workers Brian Alexander and Cecil Dell mentioned in the particulars
were not similarly circumstanced to the appellants. At the date of their respective
appointments to the Port Followers Roll, unlike the appellants, they had the
necessary qualifications of class 3 to 5 in the case of Brain Alexander and 1 to 7
in the case of Cecil Dell.
[33] Over the period 1999 to the present, the second appellant was given a
general medical examination by the respondent as well as training on the SISU
and Fantuzzi Reach Stackers and Full Container Handling training.
[34] Over the period 1988 to the present the third appellant received training
for the Sisu and Fantuzzi Reach Stackers, Tractor Truck operations, Haulmajor
training, Ship to Shore Liebherr Crane empty container handling, container lift
Page 13 of 33
and reach stackers and full container handling.
[35] Over the period 1997 to the present the fourth, fifth and sixth appellants
underwent training for tractor truck handling, sisu fantuzzi reach stackers, empty
container handler and container lifts and full container handling.
[36] In any event as early as 17th
October 2002 the respondent had responded
to the first appellant’s request for promotion and provided its reasons for not
accepting the appellants to the Port Followers roll. There was no response to that
letter by the Union prior to the filing of this action herein.
[37] In answer, the appellants conceded that at the time of the promotions in
1992 they, did not have the minimum class IV driver’s permit. (A fact they did
not initially disclose) They alleged however that they did subsequently obtain the
class IV driver’s permit but still were not promoted “even though other similarly
circumstanced workers like us have been promoted since 1993”. They added that
they made complaints to both the respondent and the Union which were not
addressed and that the Union took no action on their behalf, in the Industrial
Court. They also contended that the respondent in any event has not answered all
the evidence they put forward to show that they had been discriminated against in
respect of the training programs
Findings of the judge
[38] Aboud J held as follows :
(i) That the respondent was a public authority amendable to public law relief
under the Constitution. He applied the decision of the European Court of
Justice in Foster v British Gas PLC [1991] 1 QB 405 that the concept of
a public body must be understood very broadly and would include, “a
body, whatever its legal form which has been made responsible pursuant
to a measure adopted by the state, for providing a public service under the
Page 14 of 33
control of the state and has for that purpose special powers beyond ….
those which result from the normal rules applicable between individuals
…”
(ii) That the respondent carried out a “public service” function because it is
empowered inter alia to develop harbours, operate port services and
shipping between Trinidad and Tobago, the provision and maintenance of
facilities of entry and berthing of ships, the erection of quays, wharfs and
jetties. These are functions to better serve the needs of the public. It is
“controlled” by the Executive because, inter alia its commissioners are
appointed by the President on the advice of the Cabinet and it subject to
governmental control - to wit: it must have Cabinet approval to borrow, its
budget is met by the Government. It also exercised special powers by
virtue of its right solely to manage and operate port services at the Port of
Spain port and had power to impose dues, charges and as well as powers
of levy and arrest in respect of arriving ships.
(iii) The appellants had no remedy in the Industrial Court against the
respondent. While they may have a remedy against their Union in the
civil court if the Union were negligent or biased against them and they
may be entitled to a declaration and to damages only. A distinct class of
aggrieved worker is excluded from the precincts of that court and deprived
of the wider and more generous powers of the Industrial Court. The
appellants allege a breach of their constitutional rights and there is no
procedure alternative to the motion.
(iv) In relation to the promotions that occurred after the first negotiations, the
appellants were not similarly circumstanced to the workers who were
promoted to the roll of port followers. The most significant difference
was that they did not possess the requisite drivers’ licence. Further, they
did not have the support of the union. The advocacy of the Union must
count as a difference between the workers in a practical sense. While the
respondent made the ultimate choice it could only do so on the basis of
Page 15 of 33
discernment. Part of its discernment involved the union’s recommendation
of some workers and not others. The workers not recommended for
promotion cannot be in the same position as those who were, and this is
independent from the involvement of any constitutional principle. It is a
real difference. To promote a worker other than one recommended by the
Union means that a worker who has Union support will be left behind,
which can trigger a trade dispute with the recognised union. The number
of workers who had less years’ service was not, relative to the number of
promotions, great and the difference in terms of time was mostly one year
or less.
(v) In relation to the second negotiations, those workers who were promoted
from the Port Followers Roll to the Register of Permanent Workers were
not similarly circumstanced to the appellants. In the first place, those
workers were already on the Port Followers Roll and the appellants were
not. To amount to a fair comparison the appellants ought to have
produced evidence of workers on the temporary rolls who by-passed the
Port Followers Roll and entered the Register of Permanent Workers. To
say that simply on the basis of tenure they should have been promoted
over workers on the Port Followers Roll is to invite controversy with the
workers who are being by-passed. The representations of the Union will
again amount to a practical difference between them, and so too their
attendance record during the recession.
(vi) In relation to the 19 promotions made from the Port Followers Roll to the
Register of Permanent Workers in 2005, insufficient data was provided to
make any useful comparison. The promoted workers were on the Port
Followers Roll longer than the appellants, who had been on that roll for
only a year. Again, previous comments would apply, because other
workers on that roll would likely be aggrieved if they were by-passed by
recently appointed port followers, such as the appellants.
Page 16 of 33
Summary of the arguments
[39] As to the first preliminary question it was essential to the appellants’ case
for them to show that the respondent is an arm of the State and that its action was
state action which attracted the strictures of sections 4 and 5 of the Constitution.
The appellants thus alleged that -
(a) the respondent is part of the executive arm of the State and
(b) it is a public authority exercising coercive powers for and on behalf of the
executive arm of the State
(c) it performs governmental functions which include the development of
harbours and the operation of port services in Trinidad and Tobago.
[40] The appellants pointed to the functions and powers of the Port Authority
set out in sections 8 and 9 of the Act. They asserted that by section 15 of the Act,
the President (effectively the Cabinet) gives to the respondent, special or general
directions of the policy to be followed in the exercise of the powers conferred on
the respondent. The respondent falls under the portfolio of the Minister of
Finance. By section 64 of the Act, the government must meet the deficits arising
out of the service provided by the respondent and by part XI of the Act, the
respondent is given the power to make regulations for fixing the rates of dues and
other charges in connection with its functions. It is also given the power to make
regulations for the carrying out of its aims and objectives. Further, the respondent
enjoys monopoly status.
[41] The respondent contended, inter alia, that -
[i] The Union is entitled to negotiate with the respondent on behalf of the
appellants with respect to the terms and conditions of employment of the
appellants or raise as a trade dispute with the Minister of Labour under
the Act, any dispute with regard to the terms and conditions of the
employment of the appellants, including any alleged failure of the
respondent to promote or reclassify or transfer the appellants.
Page 17 of 33
[ii] Pursuant to the collective agreement, the respondent established a register
for registered permanent employees and rolls to satisfy the demand for
additional labour that may be available at the respondent.
[iii] The system devised and agreed between the respondent and the Union and
provided for by the collective agreements to ensure there is a reliable
workforce at the port of Port of Spain also emerged from a long
established custom and practice developed since the 1970’s and is
described hereunder.
[iv] The respondent is not a part of the executive arm of the State. It is a body
corporate established by the Act for the purposes of operating port
services at the port of Port of Spain, Trinidad and the port of Scarborough,
Tobago and (inter alia) of operating the government shipping service
between the islands of Trinidad and Tobago. Pursuant to the provisions of
the Act, the respondent is authorised to hire its own staff.
[v] The respondent regularly employs workers at several levels for the
operation of port services. They are either employed by entering into
contracts in writing or orally as in the case of the appellants. The
respondent is not engaged in any public function in the employment of the
appellants.
[42] As to the second preliminary issue, the respondent contended that except
for senior managers and its estate constable force, the respondent’s entire labour
force is represented by the Union. The Union is certified as the recognised
majority union pursuant to the Industrial Relations Act Chapter 88:01 in respect
of workers employed by the respondent who are comprised in a distinct
bargaining unit of hourly and monthly paid workers. The appellants are hourly
rated workers of the respondent and are members of or are represented by the
union.
Conclusions
Page 18 of 33
[43] We agree entirely with the approach of the Aboud J and with his
conclusion that the respondent is a public authority for the purposes of section 4
and 5 of the Constitution. The case law is clear that a public authority performing
state functions can infringe any of the provisions of sections 4 and 5 rights. The
decision of the Privy Council in Maharaj v. AG (No. 2) [1979] AC 385, 396 is
good authority for that proposition. Speaking on the right of the aggrieved citizen
to apply for redress under section 6 of the predecessor 1962 Constitution (which
corresponds to section 14 of the 1976 Constitution) he said :
“Section 6(1), (section 14 of the 1976 Constitution) … is not
expressed to be subject to s 3 (section 6 of the 1976 Constitution).
It is general in its terms. So it applies to any interference with a
right or freedom recognised and declared by s 1 (Section 4 of the
1976 Constitution) except insofar as that interference would have
been lawful under the law in force in Trinidad and Tobago on
31st August 1962. If it would not have been lawful under that
previously existing law, s 6 creates a new right on the part of the
victim of the interference to claim a remedy for it described as
‘redress’. This remedy of ‘redress’ co-exists with any other
remedy to which the victim may have been entitled under the
previously existing law.
To revert then to the legal nature of the rights and freedoms
described in paras (a) to (k) of s 1, (section 4 of the 1976
Constitution) and, in particular, to the question, against whom is
the protection of the individual in the exercise and enjoyment of
those rights and freedoms granted? In his dissenting judgment
Phillips JA said :
‘The combined effect of these sections [sc 1, 2 and 3], (sections
4, 5 and 6 of the 1976 Constitution) in my judgment, gives rise to
the necessary implication that the primary objective of Chapter 1
of the Constitution is to prohibit the contravention by the State of
Page 19 of 33
any of the fundamental rights or freedoms declared and
recognised by s 1’ (section 4)
Read in the light of the recognition that each of the highly
diversified rights and freedoms of the individual described in s 1
(section 4) already existed, it is in their Lordships’ view clear
that the protection afforded was against contravention of those
rights or freedoms by the state or by some other public authority
endowed by law with coercive powers. The chapter is concerned
with public law, not private law. One man’s freedom is another
man’s restriction; and as regards infringement by one private
individual or rights of another private individual, s 1 (section 4)
implicitly acknowledges that the existing law of torts provided a
sufficient accommodation between their conflicting rights and
freedoms to satisfy the requirements of the new Constitution as
respects those rights and freedoms that are specifically referred
to.
Some of the rights and freedoms described in s 1 (section 4) are
of such a nature that, for contraventions of them committed by
anyone acting on behalf of the state or some public authority,
there was already at the time of the Constitution an existing
remedy, whether by statute, by prerogative writ or by an action
for tort at common law. But for others, of which ‘(c) the right of
the individual to respect for his private and family life’ and ‘(e)
the right to join political parties and express political views’ may
be taken as examples, all that can be said of them is that at the
time of the Constitution there was no enacted law restricting the
exercise by the individual of the described right or freedom. The
right or freedom existed de facto. Had it been abrogated or
abridged de facto by an executive act of the state there might not
necessarily have been a legal remedy available to the individual
at a time before the Constitution came into effect, as, for
instance, if a government servant’s right to join political parties
Page 20 of 33
had been curtailed by a departmental instruction. Nevertheless
de facto rights and freedoms not protected against abrogation or
infringement by any legal remedy before the Constitution came
into effect are, since that date, given protection which is
enforceable de jure under s 6(1) (section 14(1) of the 1976
Constitution) : cf. Oliver v. Buttigieg [1967] 1 A.C. 115”
[44] Lord Diplock’s dictum traverses all of the issues now under consideration.
The fact that there were already legal remedies (in some cases) in existence at the
time of passage of the 1962 predecessor Constitution, ultimately led to his dictum
in Harrikissoon v. The Attorney General (1979) 31 WIR 348 which eventually
addressed the question of misuse of the section 14 “redress” provision, when the
proper course was the pursuit of a private law remedy.
[45] But as to the question of infringement of the provisions section 1 and 2 of
the old Constitution (sections 4 and 5 of the 1976 Constitution) Lord Diplock
was clear that such rights can be infringed “by the State or some other public
authority endowed by law with coercive powers”. Later, in Thornhill v. AG
1981 AC 61 at 74, he went on to widen the definition of public authority to
include police officers, as follows :
“Contraventions by the police of any of the human rights or
fundamental freedoms of the individual that are recognised by
Chapter I of the Constitution thus fall squarely within what has
since been held by the Judicial Committee in Maharaj v.
Attorney General of Trinidad and Tobago (No. 2) [1979] A.C.
385, 396, to be the ambit of the protection afforded by section 6,
(section 14) viz. contraventions “by the state or by some other
public authority endowed by law with coercive powers.” In this
context “public authority” must be understood as embracing
local as well as central authorities and including any individual
officer who exercises executive functions of a public nature.
Indeed, the very nature of the executive functions which it is the
Page 21 of 33
duty of police officers to perform is likely in practice to involve
the commonest risk of contravention of individual’s rights under
section 1 (a) (section 4) and (b), through overzealousness in
carrying out those duties.”
[46] Since that decision, given over thirty years ago what constitutes executive
functions has changed significantly. The fact is that a privately incorporated
company, despite the manner of its incorporation, can be a public authority if its
functions are governmental in nature. Lord Nicholls of Birkenhead in the case of
Aston Cautlow and others v. Well Bank and another [2004] 1 AC 546 at 554
captured the modern approach when he said :
“In a modern developed state governmental functions extend far
beyond maintenance of law and order and defence of the realm.
Further, the manner in which wide-ranging governmental
functions are discharged varies considerably. In the interest of
efficiency and economy, and for other reasons, functions of a
governmental nature are frequently discharged by non-
governmental bodies. Sometimes this will be a consequence of
privatisation, sometimes not. One obvious example is the
running of prisons by commercial organisations. Another is the
discharge of regulatory functions by organisations in the private
sector, for instance, the Law Society”
[47] At paragraph 27 of his judgment Aboud J applied the test as set out by the
European Court of Justice in Foster v. British Gas Pic [1991] 1 QB 405 (and
applied by the House of Lords in the same case which was referred back to it by
the ECJ - see [1991] 2 AC 306). We consider that test to be appropriate and that
the judge was right in its application to the functions and powers of the
respondent, and in his conclusion; Thus, in considering whether the relevant body
is a public authority (for the purposes of sections 4 and 5 of the Constitution) the
question will be whether :
(i) The authority, is a body, whatever its legal form, which has been made
Page 22 of 33
responsible by the State for providing a public service
(ii) That public service is under the control of the State
(iii) For that purpose, it has been provided with special powers beyond those
which result from the normal rules applicable in relations between
individuals.
[48] In my judgment such bodies will not escape provisions of section 4 and 5
if in fact they perform functions which are in essence governmental and if, in
doing so, they infringe the rights and freedoms of citizens. Mr. Prescott submitted
that there was no exercise of coercive powers by the employer in this case. In my
judgment, the definition of public authority as set out in Foster does not require
the functions or powers exercised to be coercive. More importantly section 4(d)
also does not speak of coercive powers. It speaks simply of “any functions”.
[49] These criteria are clearly met by the respondent in this case. The functions
set out in sections 8 and 9 are clearly “public service” functions. By section 15
of the Act it is subject to the special or general policy directions of the Cabinet of
Trinidad and Tobago. By section 64 of the Act, the central government must
meet any deficit in the annual operations of the respondent. These clearly meet the
“control” criteria. By part XI of the Act the respondent is given “special
powers” to make regulations for fixing rates and other charges in connection with
its functions and for the carrying out of its aims and objectives.
[50] Such special powers are also evidenced by the provisions of section 35 (1)
and (2) by the respondent being given exemption from customs duty in respect of
any plant, machinery, appliances, equipment and materials “of every kind
whatsoever” imported into Trinidad and Tobago by the respondent for the
purpose of carrying out its functions. By section 35(2) the respondent’s income is
wholly exempt from income tax.
The Public Law/Private Law dichotomy
Page 23 of 33
[51] Not all wrongful acts of a public authority will necessarily attract
constitutional relief. That said, it does not always follow that to attract
constitutional relief the act must be a public act in the purest sense. For the
purpose of establishing a constitutional breach by a public authority, it will not
always be necessary to establish that the acts complained of were of a public
nature in the sense that that term is used in judicial review. Conversely, the fact
that the act complained of may have been committed in the course of a contract
will not defeat a constitutional claim by reason of that fact only. The fact that it
may be in breach of contract does not necessarily pre-empt a constitutional
challenge. For example, the failure by a public authority to pay for goods and
services provided under a contract will found no constitutional claim if the
complaint is strictly about non payment. But if the contractor alleges non
payment is part of a pattern of discrimination in which other contractors with
outstanding invoices are favoured with payments while he is not, such an
allegation may found an additional claim under the Constitution. Similarly a
decision by a public authority not to advertise in a particular newspaper or on a
specific radio station, while on its face a question of freedom of contract, may
well found a basis of complaint under section 4(d) (and section 4b) if it is alleged
and proven that the decision may be motivated by considerations which are
political, racial, gender related or religious or some other colourable basis.
Equally, allegations that the workers were promoted ahead of the appellants
because of political or familial concerns can also found a successful basis of
complaint under sections 4(b) and 4(d). These examples are not exhaustive. Any
act of discrimination will attract the sanction of the Constitution. No pattern of
discrimination is required. A single act will suffice. The provisions of sections 4
and 5 themselves provide the basis of the complaint. They found the claim itself.
That is a sufficient basis upon which a claimant may proceed. The fact that the
act for which there is complaint arises out of a contract will be no relevance to the
viability of the constitutional claim in those circumstances.
[52] The private law nature of the act therefore will not be the sole basis by
which the notice of motion will be judged. The decision will turn on the facts and
Page 24 of 33
circumstances of the case; that is to say, the nature of the allegations and the
nature of the act complained of and the evidence led in support of the motion.
Alternative remedy
[53] In Jaroo (supra) the Privy Council held that where a parallel remedy
existed, the right to apply for redress under section 14(1) of the Constitution was
to be exercised only in exceptional cases. It was held that an originating motion
under section 14(1) was appropriate in cases where the facts were undisputed and
only questions of law were in issue. It was wholly unsuitable in cases depending
for their decision on the resolution of disputes of fact which are right to be
determined by the procedures available in the ordinary courts under common law.
See the dictum of Lord Hope of Craighead at paragraphs 37 and 38. There, he
addressed Lord Diplock’s much quoted passage that “the mere allegation that a
human right of fundamental freedom… is likely to be contravened is not itself
sufficient to ……. the applicant to invoke the jurisdiction of the court … if it is
apparent that the allegation is frivolous or vexatious or an abuse of process … as
being made solely for the purpose of avoiding in the normal way for the
appropriate judicial remedy …”
[54] Counsel for Jaroo had submitted that it was the making of a “mere
allegation” of a contravention of a right which was being criticised by Lord
Diplock and provided a claimant could establish that there had been a breach of a
constitutional right, the choice of remedy was a matter for the individual. Lord
Hope in rejecting the argument stated :
“The appropriateness or otherwise of the use of the procedure
afforded by section 14(1) must be capable of being tested at the
outset when the person applies by way of originating motion to
the High Court. All the court has before it at that stage is the
allegation. The answer to the question whether or not the
allegation can be established lies in the future. The point to
Page 25 of 33
which Lord Diplock drew attention was that the value of the
important and valuable safeguard that is provided by section
14(1) would be diminished if it were to be allowed to be used as a
general substitute for the normal procedures in cases where
those procedures are available. His warning of the need for
vigilance would be deprived of much of its value if a decision as
to whether resort to an originating motion was appropriate could
not be made until the applicant has been afforded an opportunity
to establish whether or not his human rights or fundamental
freedoms had been breached.
Their Lordships respectfully agree with the Court of Appeal that,
before he resorts to this procedure, the applicant must consider
the true nature of the right allegedly contravened. He must also
consider whether, having regard to all the circumstances of the
case, some other procedure either under the common law or
pursuant to statue might not more conveniently be invoked. If
another such procedure is available, resort to the procedure by
way of originating motion will be inappropriate and it will be an
abuse of the process to resort to it. If, as in this case, it becomes
clear after the motion has been filed that the use of the procedure
is no longer appropriate, steps should be taken without delay to
withdraw the motion from the High Court as its continued use in
such circumstances will also be an abuse.”
[55] Jaroo was clarified in Ramanoop (supra) a case in which the Privy
Council found that while the applicant for constitutional relief did have an
alternative remedy, the allegations of constitutional breaches were such that the
applicants’ motion was a bona fide invocation of the section 14(1) provision.
[56] The Privy Council noted that an originating motion was a summary
procedure and save for the simplest of cases, ill-suited to decide substantial
Page 26 of 33
factual disputes. Having noted Lord Diplock’s concerns in Harrikissoon that the
mere allegation of a breach of sections 4 and 5 did not entitle an applicant to
invoke section 14, if it is apparent it was made solely for the purpose of avoiding
necessity of applying in the normal way for the appropriate judicial remedy Lord
Nichols of Birkenhead at page 310 said :
“In other words, where there is a parallel remedy constitutional
relief should not be sought unless the circumstances of which
complaint is made include some feature which makes it
appropriate to take that course. As a general rule there must be
some feature which, at least arguably, indicates that the means of
legal redress otherwise available would not be adequate. To seek
constitutional relief in the absence of such a feature would be a
misuse, or abuse, of the court’s process. A typical, but by no
means exclusive, example of a special feature would be a case
where there has been an arbitrary use of state power.
That said, their Lordships hasten to add that the need for the
courts to be vigilant in preventing abuse of constitutional
proceedings is not intended to deter citizens from seeking
constitutional redress where, acting in good faith, they believe
the circumstances of their case contain a feature which renders it
appropriate for them to seek such redress rather then rely simply
on alternative remedies available to them. Frivolous, vexatious
or contrived invocations of the facility of constitutional redress
are to be repelled. But ‘bona fide resort to rights under the
Constitution ought not to be discouraged’: see Ahnee v DPP
[1999] 2 LRC 676 at 687 per Lord Steyn and see Observer
Publications Ltd. v Matthew [2001] UKPC 11, [2001] 4 LRC 288
at 305 per Lord Cooke of Thorndon.
[57] I agree with Aboud J that the appellants were entitled to bring their
constitutional motion. (albeit not for the reasons he gave) The appellants do not
Page 27 of 33
contest the existence of the alternative remedy. They say in effect that the union,
through which they must go to pursue it, has refused to represent them before the
Industrial Court. They are thus forced to come to the High Court seeking redress
under section 14(2) of the Constitution.
[58] The right to pursue a trade dispute before the Industrial Court in respect of
a breach of a worker’s terms and conditions is an important remedy available to
the worker. It is part of the worker’s right to the protection of the law under
section 4(b) of the Constitution (see Alleyne & Ors. v. The AG Civil Appeal No.
52 of 2003). It is an effective alternative remedy by which a worker can vindicate
his rights before a court specially equipped to address issues peculiar to its
jurisdiction. The fact that such a right can only be pursued through the Union in
no way diminishes its effectiveness. A worker who is aggrieved by his non
promotion should ordinarily pursue his grievance through his Union in the
Industrial Court.
[59] But where his constitutional rights have in fact been infringed he is
entitled to come to the High Court for redress under section 14 if he can show that
his case contains a feature which renders it appropriate to do so. A refusal by his
representative Union could amount to such a feature.
[60] Indeed, even if there are good reasons for a Union’s refusal to pursue a
complaint before the Industrial Court, this may not preclude a constitutional
action, if an applicant can prove a breach of his right. The fact of such a breach
and the refusal of the Union to pursue a complaint, however justified, may
constitute exceptional circumstances or a special feature (per Jaroo/Ramanoop)
sufficient to justify an originating motion under section 14 of the Constitution.
But it will be important for the worker to prove the fact of the refusal and to set
out any reasons given by the Union for refusing. A worker who alleges a breach
of section 4(d) of the Constitution, given the existence of alternative remedy
before the Industrial Court (through his union), must provide cogent evidence of
the refusal of his Union to pursue his complaint before that court and of its
Page 28 of 33
reasons for refusing to do so. Ultimately it will be for the Court to decide whether
on the face of the motion the matter should proceed as a constitutional claim.
[61] A union may justifiably refuse to pursue a trade dispute if it considers that
the worker has no proper case to prosecute. In such circumstances, the worker
either has no other recourse (especially if the decision is right) or he may sue the
Union civilly if he considers that it was negligent in its representation. But he
may also bring an originating motion under section 14(1) of the Constitution if he
can prove that the employer has infringed his rights under section 4. In the
ordinary course however, where the union is correct that the case has no merit, the
worker has no other recourse and must accept the decision. Unless there is
collusion with the employer (which in effect constitutes bad faith by the Union in
its representation of the worker) there is no injustice. A legitimate refusal to
proceed by a representative union is simply another aspect of due process. But it
will be for the Court to determine whether that union was correct or not.
Moreover even if it is correct, the Court may decide that the motion may proceed
if on the face of it if there appears to be merit in the assertion that the worker’s
rights were infringed.
[62] The appellants undoubtedly have a right to institute constitutional
proceedings if in fact their rights have been infringed. Lord Nicholls in
Ramanoop cautioned against the alternative remedy policy being used to stifle
the pursuit of legitimate claims under the Constitution. It was thus necessary for
the appellants, to prove on a balance of probability that the Union refused to
prosecute their claim before the Industrial Court as a means of showing why the
alternative remedy was not pursued. In this case other than the bald statement
that the Union (which is not a party to this proceeding) has refused to pursue their
case, nothing has been provided by the appellants, by way of detail, of the facts
and circumstances of the refusal and the reasons given by the union.
[63] I do not consider that the appellants have brought proper evidence of the
fact of the union’s refusal. Neither have they begun to suggest the reasons for the
Page 29 of 33
refusal. But given that the respondent contends (which is not disputed) that it
consulted with the Union when making the promotions, there is a proper basis for
inferring that the Union did refuse to pursue any claim by the appellants before
the Industrial Court. No doubt it did so because it had participated fully in the
consultation exercise and had agreed with the promotions. It is indeed unlikely
that the Union would have agreed to promotions but still pursue a claim on behalf
of the very workers it agreed to bye-pass. On the facts of this case the refusal
constituted a special feature which justified the pursuit of an originating motion
under section 14 and the exploration of the issues raised in it.
[64] The appellants however had a difficult burden of proving discrimination
by the respondent under section 4(d) of the Constitution in circumstances in
which their representative Union has consulted with their employer and agreed
with the employer to reject them as candidates for promotion; unless of course
they allege collusion between the Union and the employer such that the Union
participated in the acts of discrimination perpetrated by the employer.
The claim itself
[65] I turn then to the claims of the appellants of breach of section 4(d) of the
Constitution. Having thoroughly examined the facts of this case, I am satisfied
that there has been no breach of section 4(d) of the Constitution.
[66] A person who alleges that his right under section 4(d) has been infringed
by a public authority must establish that he has been treated differently from some
other similarly circumstanced person or persons. Mendonça JA in Graham v.
Police Service Commission and the AG of Trinidad and Tobago, Civil Appeal
No. 143 of 2006 noted at paragraph 58, that “this does not mean that the
comparison must reveal no differences between them. What it does mean is that
the comparison must be such that the relevant circumstances in one case are the
same or not materially different in the other” (citing Bhagwandeen v. The AG
[2004] UKPC 21).
Page 30 of 33
[67] In this case Aboud J found that the appellants were not similarly
circumstanced with any of the persons they purported to use as comparators. He
did not then have to consider the other legal principles applicable to a section 4(d)
breach, nor did he proceed to do so.
[68] I consider that the judge was right in his decision. The appellants had a
heavy burden of proving unequal treatment. The employer consulted with their
representative union before making promotions in which the appellants were by-
passed. I cannot conceive of any action being successful in these circumstances
given the absence of an allegation of collusion by the Union in the acts of
discrimination of the employer, such as to amount to bad faith in its representation
of the appellants. Nothing of the sort has been alleged. This alone is a sufficient
basis on which to dismiss this motion.
[69] Mr. Maharaj submitted that, irrespective of the necessity to consult with
the union, the respondent bore the ultimate decision making responsibility in
promoting the appellants. The respondent did not have to agree with the Union if
that meant treating the appellants unfairly.
[70] The submission on its face is entirely correct. But the obverse of that
submission demonstrates the difficulty in which the respondent would find itself
were it to refuse to act on the recommendations of the union. To reject the
Union’s recommendations would no doubt be met with the submission that the
workers who were recommended by the union, were treated unfairly by the
respondent or, that they were discriminated against by the respondent. Not to
mention that the respondent also would be met with a full blown trade dispute, as
Aboud J rightly noted.
[71] But more significantly, there is nothing in the evidence to suggest that the
recommendations of the Union were biased or unfair, such as to require the
respondent rightly to reject them.
Page 31 of 33
[72] Moreover, it is not every act of discrimination which offends section 4(d).
We discriminate everyday in our choices, of people we wish to associate with.
Such choices will be informed by our socialisation. Not all of them may be
constitutionally unpalatable. Discrimination on justifiable grounds does not
infringe section 4(d). It is those choices which are based on some colourable
ground or criterion which offend section 4(d). Acting on the recommendations of
the Union in negotiations which are regular and proper will not, prima facie,
offend section 4(d) more so, when such consultation is mandated by statute, in
this case, the Industrial Relations Act Chap 88:01.
[73] Mr. Maharaj submitted that the respondent should have disclosed what the
recommendations were in respect of the appellants. If the respondent wished to
rely on those recommendations as a defence to a constitutional claim, then, the
onus was on the respondent to say why the appellants were not recommended and
to say what criteria were applied. This was also part of the candour required of
state agencies in public law applications.
[74] The submission is without merit. This was nothing more than an attempt
to shift the burden of proof away from the appellants, who themselves have not
always been candid with the Court. The evidence was not even peculiarly within
the respondents’ knowledge. That information was available to the appellants
from the Union. The appellants as members of the Union, were entitled to be
informed by the Union of the reasons why it did not recommend them for
promotion.
[75] The appellants have not given any evidence of whether they sought this
information from the Union. No proper evidence that they sought such
information (by letter for example) was provided. They have not even provided
cogent evidence of the fact of the Union’s refusal to pursue their claim in the
Industrial Court.
[76] Their lack of candour is demonstrated by their failure to disclose in their
Page 32 of 33
initial affidavits that they lacked the necessary class IV driving permits at the time
of the first negotiations which rendered them ineligible for promotion. Their
ineligibility was only conceded in answer to Mr. Ifill who revealed their
ineligibility in his affidavit in reply to their initial assertions.
[77] Further, I agree with the reasons of Aboud J which I have summarised at
paragraph 38 above. I would add that once the promotions which were made after
the first negotiations were found to have been properly made (as we have) the
appellants could not thereafter be said to be similarly circumstanced with workers,
who having been promoted ahead of them after the first negotiations, were further
promoted after the second negotiations or otherwise.
[78] The appellants attempted to surmount that hurdle by pointing to the fact
that they had either more years of service, or the same years of service, as those
promoted from the Followers Roll to the Register of Permanent Employees and
that there was no material difference in the work done by the various workers on
each Roll. Whatever their contention however, they cannot escape the fact that
those workers having been validly promoted to the Port Followers Roll, were no
longer in a similar position to the appellants.
[79] This argument was also prayed in aid of the appellants’ argument in
respect of the nineteen promotions made from the Port Followers Roll to the
permanent establishment in 2005. Aboud J found that the workers who were
promoted to the permanent establishment were on the Port Followers Roll longer
than the appellants and were not proper comparators. The appellants contended
that the promoted workers were junior to them in terms of years of service.
Additionally, they contended that the respondent did not respond to this evidence
and in any event did not rely on dissimilarity of circumstances as a defence to
their allegations. It was not therefore a relevant consideration for the judge.
[80] In my judgment the fact that the respondent did not answer the allegation
of seniority or rely on the dissimilarity of circumstances in respect of the 2005
Page 33 of 33
promotions did not disentitle the judge from making the finding that he did. That
consideration was totally pertinent to the question he had to address i.e. whether
the appellants were true comparators. It was a matter which was in evidence and
which he was entitled to consider. As to the judge’s finding that there was
insufficient data provided in respect of the 2005 promotions to make any useful
comparison, the appellants contended that since their evidence was never
responded to or challenged, it was undisputed. I agree but the appellants still
cannot surmount the obstacle that the promoted workers were ahead of them by
virtue of their earlier promotion to the Port Followers Roll.
[81] Finally, as to the question of discrimination in respect of on-the-job
training I do not consider that any case of discrimination or different treatment
has been made out. Even if the respondent did not answer all the evidence of the
appellants, it provided sufficient information to show that the appellants
themselves were given on the job training from time to time. It cannot be
expected that equality of treatment of employees will be measured with
mathematical exactitude.
[82] I am satisfied that on the totality of the evidence the respondent has in no
way discriminated against the appellants, or treated them unfairly for the purposes
of section 4(d) of the Constitution. Aboud J was right to dismiss the motion on
the merits.
[83] In the result both appeal and cross appeals are dismissed. I make no order
as to costs.
Nolan P.G. Bereaux
Justice of Appeal