The Port Authority of Trinidad and Tobago v Daban
| Jurisdiction | UK Non-devolved |
| Judge | Lord Sales |
| Judgment Date | 20 May 2019 |
| Neutral Citation | [2019] UKPC 22 |
| Court | Privy Council |
| Docket Number | Privy Council Appeal No 0056 of 2017 |
| Date | 20 May 2019 |
[2019] UKPC 22
Lord Kerr
Lord Wilson
Lady Black
Lady Arden
Lord Sales
Privy Council Appeal No 0056 of 2017
Easter Term
Privy Council
From the Court of Appeal of the Republic of Trinidad and Tobago
Appellant
Tom Poole
(Instructed by BDB Pitmans LLP)
Respondent
Elton A Prescott SC
Christopher Sieuchand
(Instructed by Charles Russell Speechlys LLP)
Heard on 3 April 2019
This appeal concerns the application of section 4(d) of the Constitution of the Republic of Trinidad and Tobago in an employment context. It concerns a claim brought by Mr Dukaran Dhaban (“Mr Dhaban”), who is now deceased. The appeal is brought by his executor.
Section 4 of the Constitution provides in relevant part as follows:
“there have existed and shall continue to exist, without discrimination by reason of race, origin, colour, religion or sex, the following fundamental human rights and freedoms, namely …
(d) the right of the individual to equality of treatment from any public authority in the exercise of any functions.”
It is common ground that the respondent Port Authority is a public authority which is subject to the obligation of equality of treatment set out in section 4(d).
The Port Authority has developed a system of employment involving different grades of worker. The principal distinction is between permanent workers and temporary workers. Permanent workers are guaranteed work for five days a week, are paid double time for weekend working and have an entitlement to a pension. Temporary workers are engaged on an ad hoc basis day by day depending on whether there is work available for them. They do not have an entitlement to a pension.
There are also sub-categories within the temporary workers class. For present purposes it is sufficient to mention two of these. Temporary workers employed on the Port Followers' Roll (“port followers”) have priority over temporary workers employed on the Daily Paid Temporary Roll (“daily paid temporary workers”) so far as concerns being given available work. Port followers are offered available work first, according to the order in which they appear on the Port Followers' Roll, and daily paid temporary workers are only offered work if there is any left after all the port followers have been offered the available work.
In 1960 Mr Dhaban commenced employment with the Port Authority as a temporary worker (longshoreman). He was then promoted to the position of registered worker, which has permanent worker status.
However, in 1964 Mr Dhaban was convicted of wounding with intent and was sentenced to a term of imprisonment of five years. As a result, he lost his job with the Port Authority.
Mr Dhaban completed his sentence and was released on 14 April 1969. The prison welfare officer wrote a letter to the Port Authority recommending that he be re-employed by the Port Authority. Mr Dhaban presented himself for work, but the Port Authority declined to employ him at this time. He found work elsewhere.
However, Mr Dhaban persevered in seeking employment with the Port Authority and on 20 April 1980 the Port Authority employed him again, this time as a daily paid temporary worker rather than restoring him as a permanent worker. In 2004 he retired from his employment with the Port Authority, having been declared medically unfit.
For the purposes of Mr Dhaban's equality claim under section 4(d) of the Constitution and this appeal, Mr Dhaban and his executor have relied on one Francis Hypolite as the relevant comparator. Mr Hypolite commenced employment with the Port Authority in 1976 as a temporary worker. In 1986 he was convicted of unlawful killing and sentenced to a term of imprisonment of seven years. He was released from prison on 12 October 1990. As with Mr Dhaban, the prison welfare officer wrote to the Port Authority requesting that Mr Hypolite be re-employed. The Port Authority acceded to this request and re-employed Mr Hypolite with effect from 7 November 1990 as a temporary worker (port follower).
In August 2004 Mr Dhaban commenced proceedings by a notice of motion issued pursuant to section 14 of the Constitution, alleging (so far as is relevant for the purposes of this appeal) that the treatment he had received from the Port Authority in failing to re-employ him as a permanent worker in 1980 had been in breach of his right to equal treatment under section 4(d) of the Constitution, when compared with the treatment accorded to Mr Hypolite in 1990. The particular allegation made by Mr Dhaban was that Mr Hypolite had been re-employed in 1990 with the same employment grade that he had had before he went to prison (ie as a temporary worker) and that he, Mr Dhaban, should therefore have been re-employed in 1980 with the same employment grade that he had had before he went to prison (ie as a permanent worker).
The Port Authority contended that the claim was an abuse of process, on the grounds that it related purely to its functions in private law, as an employer, and that there existed a suitable alternative remedy. The Port Authority also maintained that Mr Dhaban and Mr Hypolite were not suitable comparators; that even if they were suitable comparators in some respect they had not been subjected to different treatment (in that both had been re-employed as temporary workers); and that such difference as there had been in their treatment had been justified.
At first instance, Tiwary-Reddy J upheld Mr Dhaban's claim. She ruled that there was no abuse of process, because there was a sufficient constitutional dimension to the claim for Mr Dhaban to be entitled to rely upon his right to equal treatment under section 4(d) of the Constitution and there was no suitable alternative remedy available to him. The judge made a declaration that Mr Dhaban was denied the right to equality of treatment by the Port Authority as guaranteed to him by section 4(d) as a result of its failure to re-employ him as a permanent worker from 1980.
In the course of her judgment, Tiwary-Reddy J also made the observation (para 39) that the Port Authority treated Mr Dhaban unequally in delaying his re-employment (that is to say, from his release from prison in 1969 until 1980). It was implicit in this observation that this was as compared with the Port Authority's decision to re-employ Mr Hypolite very shortly after his release from prison in 1990. The Board refers to this as the delay issue. No doubt this observation by the judge reflected points made in argument before her. However, in his notice of motion Mr Dhaban had made no claim of unequal treatment by reason of the period of delay between his release from prison and his re-employment; nor was any such distinct complaint spelled out in Mr Dhaban's affidavit filed in support of his pleaded case. In the event, the declaration made by the judge did not refer to any breach of the equality right in section 4(d) by reason of the delay issue.
The Port Authority appealed to the Court of Appeal against the declaration made by the judge. Mr Dhaban did not cross-appeal and so again failed to raise the delay issue in the proceedings. Properly speaking it was not an issue before the Court of Appeal.
The Court of Appeal allowed the Port Authority's appeal. Like the judge, the Court of Appeal held that Mr Dhaban's claim involved no abuse of process. On the basis of the guidance given in Boxhill v The Port Authority of Trinidad and Tobago Civil Appeal No 11 of 2008 there was a sufficient constitutional dimension to Mr Dhaban's claim to justify his invocation of section 4(d) of the Constitution and there was no suitable alternative remedy available to him (the latter point is now common ground). At para 34 it held that Mr Dhaban and Mr Hypolite were relevant comparators:
“Insofar as the judge below found that [Mr Dhaban] and Mr Hypolite were similarly circumstanced upon their release from prison and at the time of their applications to the [Port Authority] for re-employment we agree. The point of comparison arose when Mr Hypolite presented himself for re-employment and was taken on by the [Port Authority] as a temporary worker.”
However, the court held that, viewed as comparators in that way, Mr Dhaban and Mr Hypolite had not received different treatment at the hands of the Port Authority since both had been re-employed as temporary workers: paras 41–42. Although there was in a certain sense a difference in the effect of the treatment they received — in that Mr Hypolite was, by virtue of his re-employment as a temporary worker, re-engaged in the same grade of employment as he had had before he went to prison, whereas in being re-employed as a temporary worker Mr Dhaban was re-engaged in a different grade than he had had...
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