EOC: Denying employment on religious grounds is illegal; SMDS: EOC is soliciting Nafisah and has proven bias

“Members of the public are reminded that denying employment to someone on the basis of their religion may constitute discrimination, and is prohibited by the Equal Opportunity Act.

“[…] Persons who have been subjected to discrimination in their employment, on the basis of their religion—or any other status ground—can lodge a complaint with the EOC.”

Equal Opportunity Commission

“We are of the respectful view that the Equal Opportunity Commission has not only invited a complaint from the OJT but is also courting an investigation into the OJT’s complaint with predetermined notions of the applicable law/principles and/or the outcome.

“This is a clear case of bias by predetermination and/or actual and/or apparent bias on the part of the Equal Opportunity Commission.”

Sanatan Dharma Maha Sabha (SDMS)

The following is the text of a release by the Equal Opportunity Commission (EOC) dated 28 May 2018 on the subject of religious discrimination—which closely followed the Lakshmi Girls Hindu College’s refusal to allow OJT teacher Nafisah Nakhid to carry out her duties while wearing a hijab—and a response by attorney Kiel Taklalsingh on behalf of the Sanatan Dharma Maha Sabha (SDMS):

• The EOC board comprises Lynette Seebaran-Suite (chairman), Dr Beverly Ann-Marie Beckles (vice-chairman), Dr Emmanuel Hosein, Eric Colin Dowie and James Chin Chuck.
• The SDMS legal team comprises Seenath Jairam SC, Kiel Taklalsingh, Dinesh Rambally, Karina Singh, Desiree Sankar and Stefan Ramkissoon.

Equal Opportunity Commission’s release:

Religious Discrimination under the Equal Opportunity Act Chapter 22:03

The Equal Opportunity Commission (‘EOC’) has noted reports that were carried in prior and electronic media (including social media) about an incident which occurred at Lakshmi Girls Hindu College with an On The Job Trainee (‘OJT’) who presented wearing a hijab.

Members of the public are reminded that denying employment to someone on the basis of their religion may constitute discrimination, and is prohibited by the Equal Opportunity Act Chapter 22:03 [Act No 69 of 2000 as amended] (‘the Act’ and/or ‘the EOA’). Employment under the EOA includes employment as an apprentice, trainee and even as a contractor.

The Act prohibits discrimination in employment which will include discrimination in recruitment, remuneration, transfers, promotions, and termination, on the basis of a number of personal and inherent characteristics known as ‘status’ grounds.

Currently, there are seven status grounds that are protected. These are: race, ethnicity, religion, sex, marital status, origin and disability.

So, for example, it is prohibited conduct for an employer to use a person’s religion or race or sex in deciding whether or not to hire the person, or what remuneration to pay the person, or whether that person should be transferred or promoted.

Persons who have been subjected to discrimination in their employment, on the basis of their religion—or any other status ground—can lodge a complaint with the EOC. In the calendar year 2016, the EOC received and investigated six complaints of religious discrimination. However, this more than tripled to 20 in 2017.

The EOC is empowered to investigate these complaints and, where possible, to bring the parties together for conciliation. This service is free of charge.

If the complaint cannot be resolved at the level of the EOC, the matter may be referred to the Equal Opportunity Tribunal (‘EOT’), which is a superior court of record and is presided over by a Judge. The EOT is empowered to make orders, declarations and awards of compensation as it deems fit.

Sanatan Dharma Maha Sabha (SDMS) statement:

Our Client has brought to our attention, the captioned Media Release which was apparently addressed “FOR IMMEDIATE RELEASE”. In your Release, you refer to reports carried in print and electronic media (including social media) about an incident which occurred at Lakshmi Girls Hindu College with an On the Job Trainee (‘OJT’) who presented wearing a hijab.

In your said Release, you apparently seek to provide advice to the general public about the Equal Opportunity Act Chapter 22:03 and the role and powers of the Equal Opportunity Commission.

We are quite surprised and were taken aback by the fact that the Equal Opportunity Commission has seen it fit to advertise its services with such haste and with specific reference to addressing religious discrimination. Elementary principles of fairness dictate that the Commission cannot be “investigator, judge, jury and executioner”. Any fair minded and reasonable observer would view your ‘Media Release’ as an invitation to the OJT to lodge a complaint with the Commission, whether you agree with us or not.

However, your Release did not stop there. It went further to cite a specific complaint lodged with the Equal Opportunity Commission in which a female muslim security guard was terminated after she started wearing a hijab. A comprehensive account of the details of this particular complaint is set out in your release.

Again, we are greatly disturbed and extremely concerned that the Equal Opportunity Commission would see it fit to issue such a Release. We have never encountered a situation where the High Court, the Industrial Court, the Tax Appeal Board and/or the Environmental Commission (all superior courts of record) have ever issued a media release speaking about the services it offers in response to issues which are current in the public domain and which it views as being potentially within its remit and/or jurisdiction to hear and/or conciliate and/or determine and/or adjudicate.

This must be a first, but it is, respectfully a step in the wrong direction.

Furthermore, the Release concludes that “Under the Concordat of December 1960, denominational schools are entitled to have the religion of their denomination taught in their schools, and by teachers belonging to that denomination. However, under the Equal Opportunity Act, they may not be entitled to deny employment to any person, or admission to any student, on the basis of that person’s religion, and this includes, not just that person’s religious beliefs but the outward manifestation of those beliefs.”

With this conclusion, the Equal Opportunity Commission is clearly providing advice as to the likely basis and/or likely decisions on a specific issue, having already pointed to (1) a specific instance (of person wearing a hijab) (2) what it considered to be an outward manifestation of a person’s religious belief (wearing of hijab) (3) a specific ruling of the court where discrimination was made out (in the circumstances detailed) and (4) its position on the Concordat.

We are of the respectful view that the Equal Opportunity Commission has not only invited a complaint from the OJT but is also courting an investigation into the OJT’s complaint with predetermined notions of the applicable law/principles and/or the outcome. This is a clear case of bias by predetermination and/or actual and/or apparent bias on the part of the Equal Opportunity Commission.

Remarkably, the Commission is by the said Release, inviting a lis and highlighting its intentions if one is so materialised. This is akin to a pre-action letter issued by the Commission on behalf of a potential party and the situation is on any view irredeemable. The Equal Opportunity Commission is perforce, disqualified from dealing with or entertaining this matter in any form or fashion.

The right of a litigant to an independent and impartial tribunal is “fundamental to his right to a fair trial”: Millar v Dickson [2001] UKPC D4.

Section 4 of our Constitution provides inter alia:

4.It is hereby recognised and declared that in Trinidad and Tobago 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 –

(b) the right of the individual to equality before the law and the protection of the law;

Your actions and/or statements via the released, ‘Media Release’ leads to the inevitable conclusion that the Equal Opportunity Commission has an apparent or actual bias and/or prejudice exists against the SDMS. We wish to state for the record that the apparent or actual bias or prejudice against the SDMS creates appropriate grounds for the disqualification and/or recusal of, not only those directly involved in the dissemination of the ‘Media Release’ but also the entire Commission from participating further and/or the Commission as a whole participating any further.

The SDMS is already on the public record as stating that the entire affair involving the OJT was a plot to destabilise the SDMS Board and/or its top performing College Institution. Part of this plot was to create massive prejudicial publicity against the SDMS and Lakshmi Girls Hindu College at a time when the entire staff and upper student population are preparing for examinations.

Our Client is in no way insinuating that the Equal Opportunity Commission is involved in that plot but it has a distinct and well-grounded fear that the Commission has wittingly or unwittingly fallen trap to the prejudicial publicity which that plot was meant to create. Due process in the instant case requires that any investigation and onward deliberations be free from outside influences and/or pre-determination or prejudices.

Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity, the Equal Opportunity Commission was duty bound to take strong measures to ensure that there was a balanced approach, if it wished to make a media release. The Commission did quite the contrary in our respectful view. The basic law underpinning ‘bias’ is that a person who has formed a pre-determined opinion cannot be impartial.

Conclusion:

The Equal Opportunity Commission has acted and/or engaged in conduct and/or made statements which clearly point to issues of apparent and/or actual bias and/or bias by pre-determination and/or has resulted in prejudice against the SDMS.

It is clear that the impartiality of those persons within the Commission who were involved in the ‘Media Release’ may reasonably be questioned as well as the Commission itself.

In the premises, we hereby ask you to provide us with the following information that our Client may determine how far the apparent and/or actual bias and/or bias by pre-determination and/or any prejudice may have infected the Commission and/or whether it is competent at all to deal with a complaint brought before it in relation to the incident which it noted from reports carried by the media.

Who were the persons involved in taking the decision to issue the ‘Media Release’? Kindly provide a list of all names.

Who drafted the release and/or all those who were responsible for and/or contributed to the content of the said Release?

What were the media clips whether print, electronic and/or social which were considered and led to the decision to issue the Media Release? Provide copies and/or links to same.

Was the Complaint of Giselle Glaude –v- Quality Security Bodyguard Services Ltd the only case which was considered in drafting the Release or were there others? If there were other Complaints considered, please list the names of same.

In the Media Release, the SDMS notes the Equal Opportunity Commission’s availability and willingness to consult on issues of discrimination and provide public education at no cost. The SDMS therefore trusts that the same accommodation can be extended to it in providing the information requested herein.

You may wish to note that at a Post Cabinet Press Conference held on the 24th of May 2018, the Cabinet of the Government of the Republic of Trinidad and Tobago advised the entire Nation that the Attorney General’s Office intends to commence legal proceedings in the form of an Interpretation Summons arising out of the said reports which the Commission has noted and referred to in its Media Release.

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