Rishi Persad Maharaj. FILE PHOTO –
SEXUAL harassment can fall within the provisions of the Equal Opportunity Act and can be considered by the Equal Opportunity Tribunal (EOT) in any complaint before it, the Court of Appeal ruled on Friday.
In a unanimous decision, the court reversed a decision of the EOT which held that it could not consider a complaint of sexual harassment brought by a homosexual ex-worker of the Banquet and Conference Centre Ltd (BCCL) at the Cascadia Hotel, who claimed he was sexually harassed by the company’s head of operations.
Justices of Appeal Alice Yorke-Soo Hon, Nolan Bereaux and Prakash Moosai held the EOT did have the jurisdiction to hear the complaint of the hotel’s former quality manager Rishi Persad-Maharaj and sent his complaint back to the EOT for consideration.
“The tribunal misdirected itself on the law and took into account considerations which were irrelevant or not within its preserve,” Bereaux said in the unanimous decision.
Persad-Maharaj was hired in September 2014 and was made redundant 13 months.
He claimed that before he was terminated, his relationship with the manager was strained as he had to avoid contact after she repeatedly called him names including “sexy”, “baby”, “hot”, and “bae.” She also allegedly slapped his buttocks and pinched his waist.
He filed a trade dispute before the Ministry of Labour after he was fired and the matter was settled with the hotel being ordered to pay $46,000. He also filed a complaint of sexual harassment before the Equal Opportunities Commission (EOC) which investigated and referred it to the EOT.
The tribunal dismissed his claim of discrimination by sexual harassment, struck it out and ordered him to pay costs. It also held that Cascadia Hotel was the wrong party to the complaint as it should have been the Banquet and Conference Center Ltd at the Cascadia Hotel, and it was an abuse because he had settled the trade dispute.
Before the Court of Appeal were the EOC’s appeal of the tribunal’s decision that it lacked jurisdiction to consider the complaints, and Persad-Maharaj’s appeal of the decision to throw it out.
In the ruling, Bereaux said the proper question the tribunal should have asked were if Persad-Maharaj was treated less than favourably by the company’s head of operations than she would have a female employee, and if her conduct subjected him to a detriment.
The main issue for the court to determine was if provisions of sections 4, 5 and 9 of the Equal Opportunity Act were relevant in Persad-Maharaj’s complaint.
Before answering those questions, the judge referred to the discussion at the tribunal relating to Persad-Maharaj’s sexual orientation. He said Persad-Maharaj’s orientation was irrelevant since the complaint involved a female/male.
He said the reasoning that sexual orientation was excluded from the definition of sex, and any question of sexual harassment must refer to heterosexual conduct, “would offend the constitutionally guaranteed rights to equality of treatment and equity” and trespass on TT’s treaty obligations.
“Rather than focusing on the difficulties of treating with a definition of sexual harassment, the question on which the tribunal should have focused was whether the sexual harassment, as that term is well understood to mean, constituted ‘treatment’ which was prohibited by section 5 or a ‘detriment’ which is prohibited by section 9,” Bereaux said.
He said sections 5 and 9 were concerned with “treatment” and it was Persad-Maharaj’s treatment by his superior which had to be considered.
“The tribunal concluded that sexual harassment is excluded from the act because non-heterosexual persons may suffer detriment merely because of their orientation and yet have no protection, because sexual orientation is excluded, while heterosexuals suffering the same injury may benefit from the protection of the act.
“If that is the consequence of the meanings to be ascribed to sections 5 and 9, it is a matter for correction by Parliament. That Parliament in its wisdom chose to exclude sexual orientation/preference, was a matter entirely within its province,” Bereaux maintained.
“The astuteness of that policy is a matter for the wider community and the court of public opinion. It is no concern of this court or of the tribunal,” he said, adding that judges are to interpret the law, and any recommendation for amendments was for the commission.
He also said the EOT asked itself the wrong questions and focused on matters of policy which are the preserve of the Executive and of Parliament.
Bereaux said sexual harassment can negatively affect one’s dignity and psychological well-being in the course of one’s employment.
On the other issues, the court held the tribunal erred by not substituting BCCL in place of Cascadia Hotel. Although it operates out of the Cascadia Hotel, BCCL is a separate entity. Bereaux said the rules allowed the tribunal to make the substitution.
It also held Persad-Maharaj’s harassment claim was not an abuse since the sexual harassment complaint arose during his employment, while the trade dispute dealt with his termination.
Senior Counsel Douglas Mendes and Leah Abdullah represented Persad-Maharaj while Fyard Hosein, SC, Amirah Rahaman and Sean Julien appeared for the EOC. Shankar Bidaisee represented the hotel.