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    1

    EQUAL OPPORTUNTY ACT, 2000

    EOC/0019/2009

    DEVANT MAHARAJ COMPLAINANT

    and

    THE MINISTRY OF COMMUNITY DEVELOPMENT RESPONDENT

    NOTIFICATION OF DECISION OF THE COMMISSIONS FINDINGS

    INTRODUCTION

    1. The Equal Opportunity Act 2000 (the Act) provides for the prohibition andelimination of discriminatory behaviour. Part IV of the Act created an Equal

    Opportunity Commission (the EOC) with the responsibility of receiving and

    investigating complaints of discrimination pursuant to S. 27 of the Act.

    2. The complainant is a cultural activists of East Indian descent and a known opposeto the Peoples National Movement the party which formed the government for

    the period of this complaint 2003 -2007. The respondent is the Ministry of

    Community Development (before May 2010 this Ministry was referred to as

    Ministry of Community Development, Culture and Gender Affairs) who was at all

    material times responsible for the disbursement scholarships to nationals of

    Trinidad and Tobago. The complaint is that the Ministry in disbursing over fifty

    millions dollars (50,000,000.00) in scholarship grants failed to advertise the

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    existence of the fund thus denying the complainant the opportunity to apply for a

    scholarship.

    THE COMPLAINT

    3. By letter dated 3rd December 2009 the Complainant Mr Devant Maharajsubmitted a complaint to the Equal Opportunity Commission (EOC) alleging

    discrimination against the Ministry of Community Development, Culture and

    Gender Affairs (as it was then known and hereafter referred to as the Ministry).

    These allegations concerned what he referred to as the secret scholarships being

    awarded by the Ministry during the years 2003-2007. He complained that he was

    denied the opportunity of applying for a scholarship by the Ministry contrary to S.

    5 and 17 of the Act during this period.

    4. The Complainant alleged that the Ministry, during the period in question, failed to publicly advertise the availability of its educational scholarships as well as the

    criteria used to award such grants. It was further alleged that the award of the

    grants was done without any apparent transparency and that the scholarships were

    not granted based on merit or necessity but rather were given to persons who had

    some sort of political connection to the ruling administration, i.e. the Peoples

    National Movement (PNM).

    5. The Complainant submitted a bundle of documents obtained from thesubsequently requested several documents from the Ministry under the authority

    of the Freedom of Information Act 1999 (FOIA) regarding those persons who

    were awarded grants by the Ministry during the years in question. He claimed that

    based on the information he received he observed a pattern of discrimination by

    the Ministry relating to the granting of financial assistance to persons seeking to

    gain further education.

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    6. The Complainant indicated that, even though he wanted to further his educationhe was never allowed an equal opportunity to apply for Ministry funding and as

    such he requested that the Commission review the Ministrys Financial Assistance

    Programme to determine if there was any evidence of discrimination.

    7. His complaint is that he has been treated unequally with regard to the Ministrys provision of goods, facilities and services, pursuant to s.17 of the Equal

    Opportunity Act 2000, without any proper justification.

    STATUTORY FRAMEWORK

    8. The material provisions of the Act are as follows:-5. For the purposes of this Act, a person (the discriminator) discriminatesagainst another person (the aggrieved person) on the grounds of status if, byreason of

    (a) the status of the aggrieved person;

    (b) a characteristic that appertains generally to persons of the status of theaggrieved person; or

    (c) a characteristic that is generally imputed to persons of the status of theaggrieved person,

    the discriminator treats the aggrieved person, in circumstances that are the sameor are not materially different, less favourably than the discriminator treatsanother person of a different status.

    Discrimination re: provision of goods and services

    17. (1) Any person concerned with the provision (whether or not for payment)of goods, facilities and services to the public or a section of the public shall notdiscriminate against a person who seeks to obtain those goods, facilities andservices

    (a) by refusing to supply the goods, provide the facilities or perform the services;

    (b) in the terms on which he supplies the goods, provides the facilities or performsthe services; or

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    (c) in the manner in which he supplies the goods, provides the facilities orperforms the services.

    17. (2) The following are examples of the facilities and services mentioned insubsection (1):

    (a) access to and use of any place which members of the public or a section of thepublic are permitted to enter;

    (b) accommodation in a hotel, guest house or other similar establishment;

    (c) facilities by way of banking or insurance or for grants, loans, credit or finance;

    (d) facilities for entertainment, recreation or refreshment;

    (e) facilities for transport or travel;

    (f) the services of any profession or trade, or any statutory authority or municipalauthority.

    (3) Nothing in this section applies to the provision of services the nature of whichis such that they can only be provided to members of one sex.

    9. The best guidance for how Commissions such as the EOC should function is thatgiven by Neill L.J. in Kingv. Great Britain-ChinaCentre [1992] I.C.R. 516,

    528529. After reviewing the relevant authorities, he said: From these several

    authorities it is possible, I think, to extract the following principles and

    guidance.

    (1)It is for the applicant who complains of racial discrimination tomake out his or her case. Thus if the applicant does not

    prove the case on the balance of probabilities he or she will

    fail.

    (2)It is important to bear in mind that it is unusual to find directevidence of racial discrimination. Few employers will be

    prepared to admit such discrimination even to themselves. In

    some cases the discrimination will not be ill-intentioned but

    merely based on an assumption that he or she would not have

    fitted in.

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    (3)The outcome of the case will therefore usually depend on whatinferences it is proper to draw from the primary facts found by

    the tribunal. These inferences can include, in appropriatecases, any inferences that it is just and equitable to draw in

    accordance with section 65(2)(b) of the Act of 1976 from an

    evasive or equivocal reply to a questionnaire.

    (4)Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly

    not on racial grounds, a finding of discrimination and a

    finding of a difference in race will often point to the possibility

    of racial discrimination. In such circumstances the tribunal

    will look to the employer for an explanation. If no explanation

    is then put forward or if the tribunal considers the explanation

    to be inadequate or unsatisfactory it will be legitimate for the

    tribunal to infer that the discrimination was on racial grounds.

    This is not a matter of law but, as May L.J. put it in North West

    Thames Regional Health Authority v. Noone [1988] I.C.R.

    813 , 822, almost common sense.

    (5) It is unnecessary and unhelpful to introduce the concept of ashifting evidential burden of proof. At the conclusion of all

    the evidence the tribunal should make findings as to the

    primary facts and draw such inferences as they consider proper

    from those facts. They should then reach a conclusion on the

    balance of probabilities, bearing in mind the difficulties

    which face a person who complains of unlawful discrimination

    and the fact that it is for the complainant to prove his or her

    case.

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    EVIDENCE SUBMITTED BY THE COMPLAINANT

    10.The Complainant submitted a list of scholarship awardees which he obtained fromthe Ministry of Community Development pursuant to a request made under the

    Freedom of Information Act 2000. This list is exhibited at Appendix A. It shows

    that approximately 925 awards of scholarships were made totalling

    $50,863,950.38 TT Dollars during the period 2003 to 2007 as follows:-

    646 persons received funding 1 time

    203 persons received funding 2 times

    59 persons received funding 3 times

    10 persons received funding 4 times

    1 person received funding 5 times

    11.The Commission reviewed the complaint as lodged by the Complainant togetherwith the supporting evidence and decided that an arguable case existed which

    warranted an investigation into the allegations made by the Complainant. This

    decision was based on the fact that the supporting evidence as supplied by the

    complainant purported to show that approximately nine hundred (900) persons

    were granted scholarships without the existence of the scholarships ever being

    publicly advertised. This the Commission found to be remarkable.

    INVESTIGATION CONDUCTED BY THE COMMISSION

    12.Pursuant to the information supplied by the complainant in this matter thecommission decided that an investigation should be conducted in relation to theallegation of discrimination made by the complainant. Set out below is a table

    showing chronologically how this investigation progressed. It outlines the

    information requested by the Commission and the information actually provided

    by the Respondent.

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    TABLE SHOWING CHRONOLOGICAL PROGRESSION OF MATTER

    Date Action Taken Purpose of Contact Comments

    April 23, 2010 Notice requesting information wassent to Ministry of Culture,Community and Gender Affairsattention the Permanent SecretaryMrs. Angela Jack for responsewithin 28 days

    See Appendix B Part 1 forinformation sought.

    The Ministry ofCommunityDevelopment,Culture and GenderAffairs was thenamed respondent inthis complaint andfor all intents and purposes wereresponsible for

    disbursingscholarships

    No Informationprovided within timeperiod

    May 28, 2010 Second notice for response withinadditional 28 days

    Same as above

    June 14 2010 Letter from respondent providinginformation

    Some of the requestedinformation wasprovidedSee Appendix B Part

    II for information not provided and therelevant response by

    the respondentAugust 27th 2010 Notice requesting additional

    information from the Respondentwithin 14 days. See Appendix CPart I for information sought

    The Ministry ofCommunityDevelopment wascontacted to providethe relevantinformation as theMinistry ofCommunityDevelopment,Culture and GenderAffairs was now re-named to Ministry of

    CommunityDevelopment

    Some of the requestedinformation was provided by letterdated 1st October2010. See AppendixC Part II forinformation not provided and therelevant response bythe respondent

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    Information provided by the Ministry in letter dated June 14th

    13.In this response the Ministry denied the allegations made by the Complainant thatthey failed to publicly advertise the availability of its educational grants and

    sought to explain the inception of the Community Development Scholarship

    Programme (the CSDP) and the process used to advertise and select grantees.

    According to the Ministry, a Technical Team was established within the Ministry

    to determine how to satisfy a spate of requests from various Community Based

    Organisations (CBOs) and Non-Governmental Organisations (NGOs) so that the

    youth of the community could be exposed to training and development in both

    traditional and non-traditional areas. No information was provided on the

    composition of this team and the terms of reference of the members.

    14.The Ministry also indicated that this Technical Team recommended that theMinistry establish a programme of scholarships that would focus on building

    human capabilities within the communities and which programme would not be

    tied to or restricted by the traditional criteria.

    27 h October 2010

    1stNovember 2010

    2nd November 2010

    14th 17th February

    2011

    Investigators of the Commissionvisited the Ministry of CommunityDevelopment to inspect the records being supplied to the Commissionand to obtain further informationsuch as payment vouchers and

    actual evidence of payments.

    This visit wasnecessary at theMinistry Head Officefor properverification ofinformation

    The informationobtained from thesesite visits are set outbelow.

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    15.The Ministry indicated that based on the recommendations of this TechnicalTeam, Cabinet agreed by Minute No 421 of March 14, 2002, inter alia:

    b. To the establishment of a Community Development ScholarshipsProgramme (CSDP) under which bursaries would be awarded to young

    persons to undertake programmes of training and/or study in the

    traditional and non-traditional areas.

    c. That the Ministry of Community Development and Gender Affairs, inconsultation with CBOs an NGOs identify the criteria for the award of the

    bursaries; and

    d. That the Scholarship Selection Committee be established within theMinistry of Community Development and Gender Affairs to make the

    appropriate selections and make recommendations to the Minister for the

    award of the bursaries.

    16.The Ministry indicated that based on this Cabinet decision, a ScholarshipSelection Committee was established comprising of the Honourable Eulalie James

    Minister of State in the then Ministry of Community Development and Gender

    Affairs, Ms. Rosalind Khanhai-Trotman Retired Public Officer, Ministry of

    Education and Mrs. Maureen Manchouk President, NIHERST.

    17.When questioned on the issue of method of publication of notices advertising thegrants, the Ministry indicated that copies of the relevant brochures were sent to all

    Community Development Administrative District Offices. However when

    requested to provide evidence of this fact the Ministry was unable to do. The

    Ministry was unable to provide any information proving that the (CSDP) were

    actually advertised and publicised so that members of the public such as the

    Complainant could have accessed that scholarship fund and that forms were

    available from District Offices.

    18.The Ministry indicated that the following was the criteria used to allocatefunding:-

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    a. Applicants must be Trinidad and Tobago citizens;b. Programme of training must be of relevance to the country;c.

    Applicants and/or their households must provide evidence offinancial need in respect of the proposed programme of training;

    d. Only applications in respect of programmes of training at the postsecondary level were considered for assistance;

    e. New students were required to seek acceptance at approvedinstitutions in Trinidad and Tobago which offer the proposed

    programme of training;

    f. Preference was given to programmes of training being offered bylocal and regional training institutions;

    g. Preference was given to undergraduate as opposed to post-graduateprogrammes of training;

    h. Applications for non-traditional areas of training were alsoconsidered;

    i. Applicants had to provide evidence of ability to cover costs inexcess of the level of assistance recommended by the Selection

    Committee;

    j. Programmes of training must be at approved institutions;k. Applicants were not to be in receipt of awards/ financial assistance

    which covered the assistance being sought;

    l. Applicants had to demonstrate the ability and the required level ofcommitment to successfully pursue the chosen programme of

    training until completion;

    19.The Ministry also provided information in the form of a brochure entitledGuidelines for the Award of Financial Assistance [Studies] Programme.

    Included in this undated brochure were guidelines to be used in deciding on

    assistance to persons. It was stated as follows:-

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    e. Eligibility The programme being pursued must be relevant to the needsof the communities of the country.

    f.

    Value Awards will be approved: To a maximum of twenty-fivethousand dollars (TT$25,000.00) per annum for local programmes, to a

    maximum of two thousand, five hundred pounds (2,500.00) per annum

    for programmes in the United Kingdom, to a maximum of five thousand

    United States dollars (US$5,000.00) per annum for programmes in other

    countries. Awards above those specified may be considered, but only in

    exceptional cases.

    g. Terms Beneficiaries may be required to enter into an agreement with theGovernment of the Republic of Trinidad and Tobago to serve within their

    respective communities or the country for a designated period of time.

    h. Applicants must submit a recommendation from, or an assessment by a Non- Governmental Organisation (NGO) or Community Based

    Organisation (CBO).

    i. Each applicant must submit a covering letter detailing the reason/s whyhe/she should be considered for financial assistance.

    20.The Ministry also stated that after an application is received it is reviewed by theCabinet appointed Awards Committee. The Committee then makes

    recommendations to the Minister. The Ministry was also requested to provide

    copies of any agreements signed with persons receiving funding. In its response

    the Ministry stated Given the low level of financial assistance (unlike the levels

    applicable to scholarships and bursaries) the matter of an Agreement was not

    pursued between 2003 and 2007.

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    Response dated October 1st

    2010

    21.The Ministry when asked to provide a justification as to why the amountsawarded exceeded the amounts stipulated in the brochure. They indicated that insome cases circumstances are very extenuating and based on the merit of the

    information contained in the documents The Ministry was also asked to

    provide copies of all payment vouchers. To date the vouchers were not provided

    to this Commission. The Ministry was also asked to provide copies of the minutes

    of the meeting of the Scholarship/Awards Committee. It was indicated by the

    Ministry that such information was not available.

    VISIT TO THE MINISTRY

    22.The investigators of the Equal Opportunity Commission visited the RespondentMinistry on several occasions in an attempt to review the records of

    disbursements made to grantees for the period 2003-2007. The Commission

    requested that the vote books of the Ministry for that time be made available.

    However, the Commission was informed that these books could not be located at

    the Ministry of Community Development and were at the Ministry of Social

    Development. The explanation given was that everything had been handled at the

    Social Development ministry.

    23.On inspection of one of the vote books the initial disbursement when it wasallocated to the Ministry of Community Development in 2004 started at

    $28,864,000 TT Dollars and was increased to $35,000,000TT dollars in the fiscal

    year of 2005. In many instances of examining the payment vouchers versus the

    vote books that the investigators were allowed to see, there were financial

    discrepancies in the incremental amounts stated by the Ministry and the actual

    voucher payments as viewed by the investigators.

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    24.It should also be noted by the Commission that even though the scholarships fundwas passed in parliament by the former regime (Peoples National Movement) in

    2001 it was not until 2003 that funding allocations were made to the Ministry of

    Social Development to commence disbursement. In 2004, the responsibility ofthese grants fell within the purview of the Ministry of Community

    Development. As mentioned above, the initial funding amount totalled

    $28,864,000.00. An examination of the allocations as accounted for in

    Parliament by the then Minister Mrs. Joan Eulie Williams disclosed the following

    in tabulated format.

    25.It should be noted that in many instances none of the figures match up to what theCommission was provided with from the Ministry. The Ministry figures do not

    correspond to the figures disclosed in Parliament by the then Minister. For the

    period 2002 there was no allocation. In 2003, the Ministry of Social Development

    was responsible for the first disbursement. In 2004, the allocation in vote book

    was $28,864,000.00. The headings are as follows:

    Taken from Head: 55

    Current Transfers and Subsides: 04

    Sub: 005 Non Profit Intuitions

    Years

    Ministry

    Figures

    Allocation

    disclosed

    in Parliament Used

    Vote

    Book

    Allocation

    2002 Nil

    2003 $1,033,324.29 $1,500,000.00 $1,190,805.00 Info no available

    2004 $5,224,286.75 $5,000,000.00 $4,932,322.48 $28,864,000.00

    2005 $10,629,858.46 $5,518,000.00 $5,516,512.10 $35,000,000.00

    2006 $5,925,992.32 $18,364,000.00 $18,363,806.13 Info not available

    2007 $15,715,000.00 $15,261,182.00 Info not available

    2008

    Totals $22,833,461.82 $ 46,097,000.00 $45,264,627.71

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    27 Non profit Institutions

    Further inconsistencies include the non correlation between voucher

    amounts and the figures provided for by the Ministry. Cited examples

    include:

    a. Knolly Charles: Amount received on voucher #271 dated 1/12/05

    $84,000.00TT

    Information to the Commission $13,395.00TT

    b. Natasha Simon: Amount received on voucher #270 of 1/12/05

    $80,000.00TT

    Information to the Commission $10,115.00TT

    26.On inspection of the vote books it was observed by the investigators that theallocated fund was used to pay every imaginable expense from the scholarships

    grants to the following: community wardens, salaries, catering services, gardening

    services, rental of retained properties, rental of sound equipment, rental of stages,

    printing fees, publication fees and communication fees (TSTT etc).

    ANALYSIS OF DATA SUPPLIED BY THE MINISTRY

    APPENDIX D MASTER LIST

    27.The Ministry by letter dated 14th June 2010 provided a list of persons receivingscholarships. The Commission then produced a tabulated list as shown in

    Appendix D. This list covers the period 2003 2007. This list shows that 755

    persons obtained funding amounting to approximately $34,896,201.51 TT

    Dollars. Appendix D sets out the various amounts spent on scholarships per year.

    The following can be seen.

    2003 1,033,324.29

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    2004 5,224,286.75

    2005 10,598,358.46

    2006 5,925,992.32

    2007 12,114,239.69

    APPENDIX E - LOCAL PROGRAMMES vs FOREIGN

    PROGRAMMES

    28.Provides information on the local and regional universities compared to foreignuniversities in relation to funds spent. The following was found:-

    Local and Regional Universities - 3,538,095.79 191 persons

    Foreign - 31,358,105.72 451 persons

    Local amounted to approximately 10% of all studies

    APPENDIX F - UNDERGRADUATE vs POSTGRADUATE

    29.Provides information on the funding provided for undergraduate compared to postgraduate programmes

    Undergraduate Programmes $30,299,794.71 - 87%

    Post Graduate Programmes $ 4,596,406.80 - 13%

    APPENDIX G - LOCAL AND FOREIGN ABOVE AND BELOW

    $31,000 TTDS

    30.Provides information funding provided for programmes below $31,000 TT(5000.00 USD) and programmes above 31,000.00 TTD

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    Total for Foreign Programmes under $31,000 TTD $1,913,833.31 85

    persons 6%

    Total for Foreign Programmes above $31,000 TTD $29, 472,212.91 360

    persons -94%

    Total for Local Programmes under 25,000 TTD $ 1,653,015.00 151

    persons 47%

    Total for Local Programmes above 25,000 TTD $ 1,857,140.29 39 persons

    53%

    ANALYSIS OF INFORMATION OBTAINED.

    31.Several anomalies were seen to exist in the evidence submitted by the Ministry(refer to paragraphs 38-45 for full list of anomalies). The main discrepancy being

    the huge disparity between figures as submitted by the complainant which was

    obtained under the Freedom of Information Act and those which were submitted

    by the Ministry to the Commission upon request? The total funding paid out by

    the Ministry for the period 2003 to 2007 on the complainants list is

    $50,863,950.38 while the list of awardees received by the Commission obtained

    funding amounting to $34, 896,201.51. In this regard there seems to have been a

    reduction of over $15 million dollars in the list provided by the Ministry to the

    Commission. The Commission has prepared tables exhibited at Appendix H K

    as follows :-

    APPENDIX H COMPARISON OF INFORMATION PROVIDED BY

    COMPLAINANT AND RESPONDENT CONSISTENT INFORMATION

    32.This table shows that of the complainants and respondents list 539 persons areon both lists all. It also shows that the amounts as received by each awardees are

    the same on both lists. These awards amounted to $ 30,300,689.89 TTDS.

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    APPENDIX I COMPARISON OF INFORMATION PROVIDED BY

    COMPLAINANT AND RESPONDENT INCONSISTENT

    INFORMATION

    33.This table shows 47 persons in which the amount stated as received by them inthe Complainants list differs from that in the Respondents list. These differences

    in some cases are huge. The commission thus far has been unable to verify the

    correct figures since we have yet to receive the actual vouchers as was requested.

    APPENDIX J COMPARISON OF INFORMATION PROVIDED BY

    COMPLAINANT AND RESPONDENT INFORMATION MISSING

    FROM COMPLAINANTS LIST

    34.This table shows that when compared 62 names are on the Respondents list whichare not on the list provided to Commission

    APPENDIX K COMPARISON OF INFORMATION PROVIDED BY

    COMPLAINANT AND RESPONDENT INFORMATION MISSING

    FROM COMMISSIONS LIST

    35.This table shows that when compared 472 names are on the complainants list butare not on the list provided to the commission.

    APPENDIX L A COMPARISON OF PERSONS FOR WHOM THERE

    NO APPLICATION FORMS FOUND AND THOSE WHERE

    APPLICATION FORMS WERE FOUND.

    36.The Commission found that of the total number of persons receiving scholarshipsthe following information was obtained.

    No Application forms - 47%

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    Application forms with address included 49%

    Application forms with no address included 4%

    APPENDIX M - DISTRIBUTION OF FINANCIAL ASSISTANCE BYELECTORAL DISTRICT (based on existing application forms)

    37.The Commission found that when it reviewed the addresses of persons whereapplication forms were found persons applying for scholarships came from 26

    constituencies. The top five (5) constituencies are as follows:-

    San Fernando 16.9%

    Port of Spain North/ St. Anns West 11.4%

    Diego Martin West 11.0%

    Arima 8.6%

    Laventille East/Morvant 5.9%

    APPENDIX N DISTRIBUTION OF FINANCIAL ASSISTANCE BY

    ETHNICITY

    38.This table shows the amount of persons belonging to the same ethnicity as thecomplainant and who received funding. It shows that 7% of persons receiving

    funding were of East Indian descent whilst 93% were of non- indo Trinidadian

    origin. Whilst names may not always identify precisely ethnicity, reliance was

    placed on the methodology employed by the team in the La Guerre and Ryan

    report on Ethnicity and Employment Practices in Trinidad and Tobago 1992.

    MINISTRY BREACHES

    39.No record of Selection Committee meetings - The Commission was informedthat there are no copies of minutes of any meeting of the Selection Committee or

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    any information regarding what would have taken place during the evaluation of

    applications.

    40.Review of applications forms - From the period 2002-2005, there appears tohave been no standardized application form utilized by applicants. Based on a

    review of the applications of persons requesting grants for the year 2002-2007,

    several claims of financial need and subsequent awards of financial assistance

    were identified as suspicious. This was for the following reasons: The applicants

    examined reveal several instances where applicants were granted financial

    assistance based on recommendations made from Government Ministers or

    Members of Parliament. Records also indicate that the vast majority of applicants

    who were granted financial assistance by the Ministry lived in constituencies

    ruled by the PNM Constituencies. See Appendix M. Set out in Appendix O are

    examples of the above mentioned cases:-

    41.Criteria for award of financial assistance not adhered to - Awards grantedover maximum amount as stated - The Guidelines for The Award of

    Assistance under The Community Development Financial Assistance [Studies]

    Programme (Guidelines) provided by the Ministry to the Commission states that

    awards would be approved to a maximum of twenty-five thousand dollars

    (TT$25,000.00) per annum for local programmes, to a maximum of two

    thousand, five hundred pounds (2,500.00) per annum for programmes in the

    United Kingdom, to a maximum of five thousand United States dollars

    (US$5,000.00) per annum for programmes in other countries. Awards above

    those specified may be considered, but only in exceptional cases.However, on

    analysis the amounts granted to recipients of the CSDP provided by the Ministry

    shows that over 400 recipients for the period 2003-2007 received more than the

    amount specified in the Guidelines. The figures therefore raise the question of

    what constituted the exceptional circumstances referred to in the Guidelines that

    would have influenced the Ministry to award sums over the maximum amounts

    quoted.

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    An NGO or CBO must confirm the applicants involvement. However, none of

    the copies of applications reviewed by the Commission contain any such

    recommendations. Furthermore, there was no evidence presented to suggest that

    any NGOs or CBOs were involved in any aspect of the CSDP.

    46.Awards based on Financial Need The criteria as set out by the Ministrystated that applicants must provide evidence of financial need. However the

    information obtained showed that there were instances where applicants were

    awarded grants not based on financial need but based on recommendations from

    then Ministers of Government and even from the Prime Minister himself. This

    was especially during the period in question. The following are such instances. It

    is also interesting to note that the following names were not provided to the

    Commission by the Ministry, instead these were names found by the investigators

    upon their visit to the Ministry. Examples include:

    a. In 2004 Adanna Joseph received $25,600.00 to pursue a BA in

    Public Relations Cooperative Education Route Programme at

    Mount Saint Vincent University. She is the daughter of Brigadier

    Peter Joseph. A note attached to the Interview sheet of the Ministry

    stated the following Does not qualify under needy. However

    some assistance is recommended. Additionally, attached to his

    application form was a note from the then Prime Minister Patrick

    Manning on the Prime Ministers official stationary with the words

    Hon. Joan Yuille Williams. Please assist. The note also included

    what purports to be Mr. Mannings signature and the date

    04.10.24.

    b. Kariym McHoney was awarded $50,400.00 in 2005 and

    $63,200.00 in 2006. The remarks/recommendations column of the

    Interview sheet stated the following Family is not really

    financially stressed; Father is Commissioner of Prisons, mother

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    teacher. Does NOT qualify under needy. However, some

    assistance is recommended

    47.No Advertisement of Financial Assistance Studies Programme - No evidencewas provided to substantiate the Ministrys assertion that the awards were

    sufficiently advertised and made available for all nationals during the period in

    question. For instance, the Ministry maintained that it sent Guidelines to eight

    Community Development Administrative District Offices but have been unable to

    locate any correspondence that would have been sent to provide information to

    those at the District Offices responsible for distributing said brochures. It would

    have been a suitable best practice for the Ministry to publish or advertise the

    existence of the scholarship as is the norm for scholarship programmes.

    48.Additionally based on the review of the documents completed, none of theapplicants requesting funding mentioned seeing a brochure or an advertisement

    relating to the availability of grants at the Ministry. On the contrary, as

    previously stated, several of the applicants seemed to have been referred either by

    a Member of Parliament or a Government Minister. The remaining applicants

    appear to have been trying to gain financial assistance without actually being

    aware whether such assistance was available.

    49.Having regard to all of the information the Commission has been provided withThe Commission is of the view that the entire process of awarding financial

    assistance was not conducted fairly, legitimately and/or with the intention of

    allowing all eligible persons an equal opportunity to access the financial

    assistance for education from public funds.

    APPLICABLE LAW

    50.The Complainant in this matter brings his claim of discrimination to the EqualOpportunity Commission (EOC) pursuant to the Equal Opportunity Act (EOA)

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    2000. This act allows persons to lodge complaints of discrimination based on

    certain prohibited grounds of discrimination. The prohibited grounds of

    discrimination include, race, ethnicity, sex, religious belief, marital status and

    geographical origin.

    51.A claim for discrimination can be brought under certain recognised categoriessuch as, employment education, provision of goods and services and

    accommodation. The applicant in this case complains that he was discriminated

    against by the state and more specifically the Minister and the Ministry of

    Community Development. His complaint centres on the provision of scholarships

    to certain individuals whilst he was denied the opportunity to obtain such a

    scholarship. He alleges that the failure of the Ministry to award him a scholarship

    would have prejudiced his career opportunities. Additionally a financial strain

    would have been placed on him to spend his money to become competitive with

    other individuals who were granted scholarships.

    52.The complainant brings his claim pursuant to S. 5 and 17 of the EqualOpportunity Act 2000 (EOA) on the grounds of his race and ethnicity. This

    complaint on the facts can be categorised under the provision of goods and

    services.

    53.In establishing discrimination a complainant must show that they were treated lessfavourably than someone of a different status and that this difference in treatment

    was because of the complainants relevant status at the time. S. 5 of the EOA

    provides

    S.5 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

    j. the status of the aggrieved person;

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    k. a characteristic that appertains generally to persons of the statusof the aggrieved person; or

    l. a characteristic that is generally imputed to persons of the statusof 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.

    S. 5 EOA

    54.The test of causation used in S.5 in the EOA is expressed as on the ground ofand by reason of for discrimination complaints. In the Australian case ofCraig

    Williamson Pty Ltd v Barrowcliff[1915] VLR 450 at 452 per Hodges J. it was

    stated that it is a general rule of statutory construction that where the legislature

    uses the same words, or essentially the same words, in different provisions, the

    intention is that those words should have the same meaning.

    55.There are at least two ways in which courts and tribunals in Australia with whoseanti discrimination legislation Trinidads own Act is closely mirrored have

    interpreted the phrase on the ground of in relation to complaints of

    discrimination. The first is the but for test or objective approach and the second

    is the true basis or real reason test or subjective approach. One of the differences

    between the two tests is that the but for test is an objective or strict liability test

    where the motives or intentions of the alleged perpetrator are not relevant:

    Bernardi G, Direct Discrimination in the Disability Discrimination Act, The

    Australian Law Journal, vol 76, p 512 at 514. When applying the true basis

    test, the decision maker may have regard to the perpetrators motives and

    intentions:Purvis v State of New South Wales (2003) 217 CLR 92 at 163.

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    56.The but for test. When applying this test the decision maker asks whether butfor the particular attribute (sex, race, disability etc) the person would have been

    subjected to the treatment or conduct. A simple illustration of this test is provided

    by the case ofHaines v Leves (1987) 8 NSWLR 442. In that case the Court ofAppeal held that a complaint of sex discrimination by a female student at a single

    sex school was substantiated because she was not given access to the same

    subjects as a male student attending a nearby single sex school. The Court said

    that but for the sex of the female student she would not have been treated less

    favourably than the male student was treated. The lack of any intention or motive

    to discriminate was held not to be relevant.

    57.In IW v City of Perth (1997) 191 CLR 1, both Toohey and Gummow JJ sawsome 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

    High Court was considering the disability discrimination provisions of theEqual

    Opportunity Act1984 (WA) .The City of Perth Council rejected an application

    for planning approval for a drop in centre for people with HIV. Of the 25

    members of council who voted, 13 voted against the application and 12 voted in

    favour, so that a change in one of the negative votes would have changed the

    outcome. Of the 13 councillors who opposed the drop-in centre, five were found

    to have voted on the basis of the AIDS factor. The majority (Brennan CJ,

    Dawson, Gaudron, McHugh and Gummow JJ) rejected IWs submission that the

    Council had discriminated against him on the 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 Honor

    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 makerIn 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

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    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.

    58.Kirby J went further saying at p 64, that the but for test was the correct test. InSivananthan v Commissioner of Police, New South Wales Police Service [2001]

    NSWADT 44, the Tribunal when considering a complaint of victimisation,

    adopted the but for test for causation set out by Kirby J. At [43], the Tribunal

    made the following observation: Kirby J considered this broad issue of causation

    inIW v City of Perth (1997) 191 CLR 1 at 62-64 when discussing the terms of the

    West Australian Equal Opportunity Act1984. We adopt his language: it is

    sufficient if the unlawful reason, that is the fact that the complainant had

    lodged complaints of race discrimination, had a real causative effect in the

    sense that but for its presence the act complained of would not have occurred

    [Emphasis added.]

    59.The true basis test. Two years after the Tribunal handed down its decision inSivananthan, the High Court had another opportunity to consider the test of

    causation in relation to complaints of discrimination. In Purvis v State of New

    South Wales (2003) 217 CLR 92 (Purvis), a student with brain damage was

    excluded from a high school because of aggressive behavior 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 that treatment.

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    60.In a joint judgement with McHugh J, Kirby J re-visited passages inIW v City ofPerth (1997) 191 CLR 1 referring to the but for test at p 143. It is true that

    statements of Toohey J and Gummow J in IW v City of Perth might appear tosupport 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 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.

    61.The majority inPurvis (Gummow, Hayne and Heydon JJ) did not refer to the butfor test. Their Honours adopted the true basis test and emphasised that the

    motive or intention of the alleged perpetrator may be relevant. 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 was the aggrieved person treated as he or she was?

    If the aggrieved person was treated less favourably was it because of, by

    reason of, that persons 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 (at p 163).

    62.In Purvis it was stated the question a Tribunal should ask when addressing thecausation element of direct discrimination is whether the persons sex, race,

    disability, etc (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,

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    that reason must have been a reason which, either alone or in combination with

    other reasons, was the true basis for the treatment.

    63.In the UK case of Chief of West Yorkshire Police v Khan [2000] I.C.R 1169which involved a claim at an employment Tribunal of unlawful racial

    discrimination by the chief constable. On the issue of whether motive is required

    in proving discrimination. It was stated in Khan that Section 1(1) (a) of the Race

    Relations Act of 1976 requires the discrimination to have been on racial

    grounds.Section 2(1) of the Act of 1976 requires the victimization must be by

    reason that

    64.The equivalent provision to section 1 of the said UKRace Relations Act of 1976is section 1 of the UK Sex Discrimination Act 1975. That section requires the

    discrimination to be on the ground of her sex (section 1(1) (a). Section 4 of

    the Sex Discrimination Act 1975, which is the equivalent ofsection 2 of the Act

    of 1976, and requires the victimization to be by reason that the person

    victimized has done the protected act.

    65.Our legislation contains provisions that are similar to that of both the UK RaceRelations Act 1976 and the Sex Discimination Act 1975. Section 5 of the EOA

    2000 provides 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. Section 6 of the Act requires victimization must be by

    reason that. Therefore in relation to discrimination our S.5 requires the

    aggrieved person to prove that by reason of the relevant status he was treated less

    favourably. The issue then is to what extent is the aggrieved persons required to

    prove the cause of the discrimination under the EOA.

    66.An analysis of the UK authorities may assist in this regard. In Reg. v. Birmingham City Council, Ex parte Equal Opportunities Commission [1989]

    A.C. 1155 and James v. Eastleigh Borough Council [1990] I.C.R. 554the House

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    of Lords confirmed earlier authorities which had held that it was not correct to

    construe the phrase on the ground of her sex as referring to the alleged

    discriminator's reason for taking the action of which complaint is made. The

    question is objective and not subjective. As Lord Goff of Chieveley said in theBirmingham City Council case, at p. 1194: There is discrimination under the

    statute if there is less favourable treatment on the ground of sex, in other words if

    the relevant girl or girls would have received the same treatment as the boys but

    for their sex. The intention or motive of the defendant to discriminate, though it

    may be relevant so far as remedies are concerned is not a necessary condition

    of liability; it is perfectly possible to envisage cases where the defendant had no

    such motive, and yet did in fact discriminate on the ground of sex.

    67.InJames v. Eastleigh Borough Council [1990] I.C.R. 554, which turned on thefact that the retirement age for men was 65 and that for women was 61, with the

    consequence that a 61-year-old man was treated less favourably than his wife who

    was of the same age, Lord Bridge of Harwich, at p. 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.

    68.In the same case Lord Goff said, at p. 576: I incline to the opinion that, if it werenecessary 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, i.e. 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

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    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 the 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 fromthe 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.

    69.In Nagarajan v. London Regional Transport [1999] I.C.R. 877. This caseinvolved the Act of 1976 and section 2(1) of the Act. The House of Lords held,

    that a finding of direct discrimination on racial grounds under section 1(1) (a) of

    the Act of 1976 did not require that the discriminator was consciously motivated

    in treating the complainant less favourably. It was sufficient if it could properly be

    inferred from the evidence that, regardless of the discriminator's motive or

    intention, a significant cause of his decision to treat that complainant less

    favourably was that person's race.

    70.This was because no proper distinction could be drawn between the terms onracial grounds in section 1(1) (a) and by reason that in section 2(1) of the Act

    of 1976. The discriminator need not have realized that he had in fact been

    motivated by his knowledge of the complainant having previously sought to

    enforce her rights under the Act.

    71.In his speech, Lord Nicholls first of all considered the position under section 1(1)(a) under the Act of 1976 and then turned to section 2. He said, at p. 886a-d: On

    racial grounds' in section 1(1) (a) and by reason that in section 2(1) are

    interchangeable expressions in this context. The key question under section 2 is

    the same as under section 1(1) (a): why did the complainant receive less

    favourable treatment? The considerations mentioned above regarding direct

    discrimination under section 1(1)(a) are correspondingly appropriate under

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    section 2. If the answer to this question is that the discriminator treated the

    person victimized less favourably by reason of his having done one of the acts

    listed in section 2(1) (protected acts), the case falls within the section. It does

    so, even if the discriminator did not consciously realize that, for example, hewas prejudiced because the job applicant had previously brought claims against

    him under the Act.

    72.On the facts the question then becomes whether the reason the less favourabletreatment towards the Complainant was because of his race. The above

    mentioned authorities seem to toggle between a subjective approach or objective

    approach. The former searches for a justification for the treatment, while the latter

    applies a strict liability test. InHCA No. S 2065/2004 between Sanatan Dharma

    Maha Sabha et al vs. The Attorney General of Trinidad and Tobago (Trinity

    Cross matter).Jamadar J sitting in the High Court stated In my opinion it is

    unrealistic to have an entirely objective test. I would therefore frame the test as

    subjective objectivity in order to capture the idea that it is not either one or the

    other but a synthesis of both.

    73.Applying firstly the but for test, the information obtained by the commissionreflects that approximately 7% (about 47 persons) receiving scholarship grants

    were of East Indian descent. This inherent trait would therefore have placed the

    Complainant at a disadvantage ab initio. Therefore it seems highly probable on

    the evidence before the Commission that but for his ethnicity he would not have

    been so disadvantaged and would have had a greater chance of obtaining a

    scholarship had he been of a different ethnicity.

    74.Secondly in applying the subjective approach, the Ministry was asked to provide aresponse to the allegations that they discriminated against the complainant. In

    their response they simply indicated that the scholarships were advertised, but no

    evidence could be found of such advertisements. It could therefore be reasoned

    that the Ministrys inability to inform the complainant and others about the

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    scholarship fund resulted in a direct exclusion of the complainant from ever

    knowing and being able to apply for a scholarship. On the facts the Ministry

    provided no justifiable reason as to why the complainant was excluded from

    applying for a scholarship.

    PROVISION OF GOODS AND SERVICES

    75.S. 17 EOA makes it unlawful for a person concerned with the provision of goods,facilities and services to the public to discriminate against a person in the way in

    which the goods are distributed. This section makes it clear that the provision

    could be for payment or non payment. S. 57 provide that this Act binds the State;

    therefore by extension the reference to person would include the State. The

    Complainant alleges that he was discriminated against because of his race and

    ethnicity in not being awarded a scholarship.

    76.In determining the meaning of service the Australian case ofAB v Registrar ofBD & M 2001 FCA 1740 is useful. Heerey J stated service involves an act of

    helpful activity or the supplying of any... activities, required or demanded

    (Macquarie Dictionary) or the action of serving, helping, or benefiting, conduct

    tending to the welfare or advantage of another. Altering the Birth Register was

    an activity.... The carrying out of that activity would have conferred a benefit on

    the applicant. The Registrar, because of the terms of the BDM Act declined the

    request to carry out that activity. This was the refusal of a service. An activity

    carried out by a government official can none the less be one which confers a

    benefit on an individual.

    77.On appeal in this matter Black CJ agreed with Heerey Js findings. Heconcluded that applying a purposive interpretation of the word service, the

    alteration of a persons sex on their birth registration comes within the meaning of

    that term. Therefore in determining whether there has been a violation of the Act,

    it is necessary to consider the intention, purpose and effect of the relevant section.

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    The issue then becomes what is the true purpose of S. 17. In an analysis of the

    EOA 2000 it can be seen that the Act was created to work alongside the

    Constitution of Trinidad and Tobago in order to prevent instances of

    discrimination. This Act therefore requires that actions of individuals inclusive ofthe state are based on the principles of equity and fairness. S. 5 places a general

    prohibition on discrimination relating to all four categories inclusive of the

    provision of goods and services.

    78.In Palgo Holding Pty Ltd v Gowans (2005) 221CLR 249 Kirby J summarisedthe principle as follows: - Purposive interpretation: the first principle holds

    that a purposive and not a literal approach is the method of statutory

    construction that now prevails. A search for the grammatical meaning still

    constitutes the starting point. But if the grammatical meaning of a provision

    does not give effect to the purpose of the legislation, the grammatical meaning

    cannot prevail. It must give way to the construction which will promote the

    purpose or object of the Act. Lord Diplock in an extra judicial statement in IRC

    v Ayreshire Employers Mutual Insurance Association Ltd 1949 1 All ER

    stated that if the courts can identify the target of parliamentary legislation their

    proper function is to see that it is hit not merely to record that it has been missed.

    Brennan CJ and Mc High J in IW v City of Perth (1996) 191 CLR 1 outlined

    the appropriate approach to statutory construction; they stated that beneficial

    and remedial legislation is to be given a liberal construction. It is to be given a

    fair, large and liberal interpretation rather than one which is literal or technical.

    They were of the view that Equal Opportunity Acts are remedial and beneficial in

    nature.

    79.From the above analysis it is arguable that the Ministry was indeed providing aservice. Receiving a scholarship can amount to a benefit capable of granting an

    advantage to the beneficiary.

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    THE COMPARATOR

    80.The Complainant indicated that his comparator Mrs. Laurel Lezama was similarlycircumstanced to him; he alleged however because of her ethnicity she was

    awarded a scholarship whilst he was not. To prove discrimination it must be

    shown that the state in providing a grant to citizens treated the complainant less

    favourably than they did someone of a different status.

    81.The Complainant in this case provided evidence of a comparator. In choosing acomparator the comparison must be like with like. The term relevant

    circumstances was discussed in the case of Shamoon v Chief Constable of the

    RUC [2003] ICR 337 here a superintendent relieved inspector Joan Shamoon of

    her appraisal duties. She brought a claim of sex discrimination using as

    comparators two male inspectors who had not been relieved of their appraisal

    duties. Her difficulty was that no complaints had been made against these

    inspectors and she had not proved that she had been treated less favourably than a

    male inspector would have been, had he received complaints, and the HL

    dismissed her claim. In choosing a comparator the relevant circumstances must be

    materially the same in each case for the comparison.

    82.In Amnesty international v Miss B Ahmed [2009] ICR 1450 (EAT) theemployment appeal Tribunal stated In our judgement the hypothetical

    comparator here is any similarly or identically qualified applicant as the Claimant,

    with the same level of experience who was of non-Sudanese ethnicity. Skin color

    is irrelevant in our view as is current nationality, given the facts that we found.

    The relevant circumstances in our judgement call for a straightforward

    comparison with a hypothetical comparator, so that the difference between the

    claimant and the comparator is only the difference of ethnic origin. We find that

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    this is the hypothetical comparator that best fits the facts of the case. Further, any

    other more sophisticated form of hypothetical comparator raises difficulties.

    83.In Civil Appeal No. 143 OF 2006 the Public Service Commission vs DenisGraham the Commission in 1997 decided to promote thirteen officers to the rank

    of Superintendent, Graham was one of the officers considered for promotion.

    Counsel for Graham submitted all the officers including Graham were then equal

    in rank, i.e. Assistant Superintendent, and all the officers including Graham were

    recommended for promotion. The only difference that arose on the evidence was

    that Graham at one time had criminal charges brought against him. Mendonca JA

    stated The question therefore is whether that is a relevant circumstance so that

    the other officers were not appropriate comparators. On the evidence in this

    case it is certainly arguable that the fact that Graham was at one time

    subject to criminal charges is not a relevant circumstance as to differentiate

    him from the other officers. It is therefore arguable that the other officers were

    appropriate comparators.

    84.In proving discrimination against the Ministry, it was alleged by the complainantthat the Ministry discriminated against him on the basis of their omission to

    advertise the Ministrys provision of scholarships to individuals. On investigation

    of this allegation the Commission found that the Ministry did not publish or

    advertise the fact that scholarships were being provided to individuals. In

    comparison the Commission has noted instances where scholarship by the

    Ministry was published. The Commission upon reviewing application forms

    obtained from the Ministry found that most persons who applied for

    scholarships did so with the recommendation of a government minister or other

    politician or known supporter of the Government at that time. An inference can

    therefore be made that persons who obtained scholarships did so on the basis of

    their affiliations and or relations with the governing party at the time.

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    85.The Constitutionof Trinidad and Tobago places a duty on the State to treat allcitizens in an equal manner and not to discriminate against anyone. The EOA

    2000 also places a duty on the State not to discriminate against persons based on

    certain prohibited grounds. On the facts therefore what is important and pertinentto this matter is the entitlement of all persons to participate in the process of

    obtaining a scholarship and which included all persons having an equal

    opportunity or chance to obtain a scholarship. Therefore no person should be

    placed at a disadvantage. Inherent in placing all persons on an equal footing in

    relation to the distribution of resources is that fact that all persons so entitled

    should have known of the fact the scholarships were being distributed.

    86.The Commission have found no evidence to support the statements of theMinistry that the existences of scholarships were advertised. Therefore it would

    seem that the Complainant and others who did not have knowledge of this

    existence were indeed placed at a disadvantage and would not have had an equal

    chance of obtaining a scholarship as compared to someone who knew of the

    existence of the scholarships. The Commission also observed that for those who

    did apply for scholarships attached to the application forms were usually letters of

    recommendation from a politician belonging to the ruling party at that time.

    87.In ensuring that all interested persons were on an equal footing it was necessaryfor all persons to have known about the scholarship fund and thus being able to

    apply for a scholarship. Each citizen of Trinidad and Tobago are and should have

    been eligible to be considered for a scholarship.

    88.In the distribution of state resources a special duty is placed on the state to ensurethat resources are being distributed equitably. The preamble to the Constitution

    states where as the people of Trinidad and Tobago .... respect the principles

    of social justice and therefore believe that the operation of the economic

    system should result in the material resources of the community being so

    distributed as to subsume the common good. This must be read in conjunction

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    with S. 4(d) which provides for the right to equality of treatment from any public

    authority, this would include the distribution of state resources.

    JURISDICTION OF THE EQUAL OPPORTUNITY COMMISSION

    89.The Equal Opportunity Act 2000 which had been passed by a simple majority ofboth Houses of Parliament, extended that protection by prohibiting discrimination

    by any person on grounds of, inter alia, sex, race, or disability in relation to

    employment, education or the provision of goods and services. Part VI of the Act

    set up an Equal Opportunity Commission with the power to refer complaints, with

    the consent of the complainant, to a new Equal Opportunity Tribunal, set up by

    Part VIII of the Act.

    90.The Act did not vest judicial power in the Commission but rather such powerexists with the Tribunal. The Commission therefore is not equipped with the

    power or jurisdiction to hear, determine or make pronouncements or findings in

    relation to a complaint lodged with the Commission. Instead the jurisdiction of

    the Commission extends so far as only to make a finding of fact that enough

    factual information exists which makes the complainants case an arguable one.

    91.Once established the Commission can recommend that the matter be conciliated.It is noted that the conciliation process itself is voluntary. Furthermore the

    Commission can file a claim with the Tribunal if consent is received from the

    complainant. The commission pursuant the Act does not have the jurisdiction or

    power to make any finding as to discrimination. All matters relating to finding in

    law can only be determined by the Tribunal.

    92.This is in keeping with the principles of separation of powers, since theCommission is effectively an administrative body performing an executive

    function. The purpose of equipping the Commission with investigatory powers

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    was so that information can be obtained to determine factually whether a person is

    acting or has acted in a manner which can result in discrimination. It is then for

    the Tribunal to determine whether discrimination existed and to make a finding as

    such. The Commission therefore was primarily set up as a fact gatherer, and toassist complainants in obtaining information that they themselves would be

    unable to obtain.

    93.In Australia a system of Anti-discrimination legislation was set up to deal withcomplaints of discrimination. The system was one similar to that of the EOA 2000

    in relation to the existence of a Commission to investigate instances of

    discrimination. However the difference in this regard was the Australian

    Commissions actually conducted hearings, made findings as to discrimination

    and awarded damages.

    94.However in the case of Brandy v Human Rights and Equal OpportunityCommission (1995) 183 CLR 245 the High court of Australia ruled that the

    Commission by performing these functions were usurping a judicial function in

    breach of the Australian Constitution. This prompted Parliament to amend the

    legislation, eventually to allow the commission only to conduct investigations and

    facilitate the conciliation process. All powers relating to hearings and awards

    were repealed.

    CONCLUSION

    95.On the evidence submitted it is clear that the Ministry did have establishedapproved criteria as to the requirements to be satisfied for a person to be able to

    obtain a scholarship. From the information supplied by the Ministry it is clear that

    the intention and purpose of the Community Development Scholarships

    Programme (CDSP) was intended for availability to all citizens of Trinidad and

    Tobago. There was no indication by the Ministry that a criterion existed to

    prevent certain individuals from applying.

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    96.On the facts submitted therefore no criteria existed which would legally excludethe complainant. However it seems the act of not advertising the existence of the

    CDSP may have had the effect of excluding the complainant which resulted in theComplainant being treated in a less favourable manner than his comparator.

    97.Additionally on the facts the Ministry proceeded to award scholarships, withoutadvertising to the public at large or without having a standardised application

    form. On an analysis of the information obtained it was found that the Ministry by

    granting scholarships in the format that existed acted in breach of their own

    criteria. In fact even the existence or operation of the Scholarship Selection

    Committee is uncertain, since there were numerous instances mentioned above

    where the Prime Minister at the time or some other government official wrote to

    the Minister recommending a person for financial assistance. The Commission

    was also told that there were no minutes of the said Committee.

    98.It can be reasoned that the effect of the procedure adopted by the Ministry indistributing scholarships under the CDSP had the effect of a disadvantage upon a

    significant proportion of the population who were of East Indian ethnicity

    inclusive of the complainant. This is evidenced by the fact that approximately 7%

    of persons receiving scholarships were of East Indian ethnicity.

    99.The existence of such CDSP therefore had the continuing effects of denying,limiting, restricting or inhibiting the complainant and others like him from being

    able to participate in the processes linked to the award of a scholarship under the

    CDSP and thus access, the advantages, benefits and opportunities available to

    other equally comparable members of society who participate in the processes

    linked to and who were successful in gaining the advantages, benefits and

    opportunities derived from receipt of a scholarship under the CDSP.

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    100. On the basis of all the information obtained the onus was placed on theRespondent to show whether some legitimate, objectively purposeful and

    reasonable justification existed that would offset the discriminatory effects of the

    CDSP. On the facts the Ministry was unable to provide any reason albeit a justifiable one explaining why the complainant was excluded from the group of

    persons receiving scholarships.

    101. The Commission considers that the complainant in this matter did provideenough evidence for an inference of discrimination to be made out against the

    Ministry. The Commission is also of the view that based on the evidence supplied

    the Ministry did not provide a reasonable justification as to why the applicant was

    not granted a scholarship. The Commission also noted that in the circumstances

    the applicant was placed in a disadvantageous position from the start by not

    having knowledge of the existence of a scholarship fund.

    102. Though the Complainant is one person in a class of persons who are ofEast Indian ethnicity the effect of the Ministry not advertising the existence of a

    scholarship fund but allowing persons of other ethnicity did in impose a

    disadvantage upon a significant proportion of the population inclusive of the

    complainant.

    103. Additionally on the issue of time limit pursuant to S. 30(3) of the EqualOpportunity Act 2000 the Commission it is stated may in exceptional

    circumstances accept a complaint made more than six months after the act of

    discrimination. The Commission accepted this complaint as one falling within

    exceptional circumstances. Although the subject matter of the complaint was

    within the period 2003-2007 the Equal Opportunity Commission was only

    appointed in April 2008 and only became operational in January 2010.

    Complainants therefore could not have had their matters investigated until the

    year 2010.

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    104. The Commission has also taken note of the fact the there was undue delayin the appointment of the Commission since the Equal Opportunity Act 2000 was

    proclaimed in 2001. The complainant in this matter did lodge his complaint

    before the Commission was operational and on that basis the Commissionaccepted the Complainants complaint.

    105. In the circumstances the Commission has considered that pursuant to S. 35of the Act the subject matter of the complaint may be resolved by conciliation and

    recommend that this matter be submitted for conciliation.

    106. Additionally it is also recommended that a forensic audit be conducted bythe appropriate authority in relation to the disbursements of funds to persons.

    Dated 19th July 2011

    _______________________________

    Emeritus Professor John La Guerre

    Chairman

    Equal Opportunity Commission

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