Battiston v Grant

• Jurisdiction: Bermuda
• Judgment Date: 31 May 2016
• Date: 31 May 2016
• Docket Number: Appellate Jurisdiction 2012 No 87
• Court: Supreme Court (Bermuda)

[2016] Bda LR 62

In The Supreme Court of Bermuda

Appellate Jurisdiction 2012 No 87

Between:

Andreas Battiston

Appellant

and

Pernell Grant

Respondent

Mr J Pachai for the 2^nd Appellant

Mr A Doughty for the Respondent

The following cases were referred to in the judgment:

Mon Tresor and Mon Desert Ltd v Ministry of Housing and Lands [2008] UKPC 31

Mutual Holdings (Bermuda) Ltd v Hendricks [2013] UKPC 13

Al-Medenni v Mars [2005] EWCA Civ 1041

Burrows v Salvation Army [2004] Bda LR 40

Taylor v McCain Foods (Canada) [2010] CanLII 6529

Darrell v Board of Inquiry [2013] Bda LR 75

Racial discrimination — Compensation — Appeal — Appeal against Board of Inquiry decision — Whether Appellant participated in discrimination — Natural justice — Fair hearing — Powers of Tribunal — Eiusdem generis

JUDGMENT of Kawaley CJ

Background

1. Between October 10 and 12, 2011, a Board of Inquiry (Paul Harshaw, Chair, Angela Berry and Thaddeus Hollis III) (“the Board”) heard a complaint initiated by the Respondent to the present appeal with the Human Rights Commission in or about June 2008. Judgment was delivered on February 9, 2012 (“the Decision”). The initial Appellants1 to the present appeal were all found liable for discrimination in relation to the Respondent's employment on the grounds of race. The Respondent herein requested a separate hearing on compensation, to the Board's disappointment.

2. On or about March 7, 2012, the Appellants herein filed an Originating Notice of Motion which was amended on or about March 15, 2012 (the “Notice of Appeal”). The covering letter under which the Notice of Appeal was filed expressed the hope that the Registrar would fix a hearing to settle the record, but no further attempt was seemingly made to prosecute the appeal.

3. The Respondent clearly had notice of the appeal because although no appearance was required, he entered an appearance through his attorneys on April 3, 2012. The next step in the appeal was the Respondent's issuing a Summons dated October 9, 2014 (supported by the First Affidavits of Pernell Grant and Matthew Madeiros, respectively) to strike-out the appeal on abuse of process grounds. The Appellants responded by issuing a Summons dated October 23, 2014 seeking to settle the record and related directions for the hearing of the appeal. The following directions were ordered:

• i. on October 30, 2014, after the Respondent challenged the authority of the Appellants to instruct their attorneys, their Summons for Directions was adjourned generally with liberty to restore by letter to the Registrar;

• ii. on November 20, 2014, directions were given for the hearing of the Respondent's strike-out Summons;

• iii. on January 7, 2015, I struck-out the appeal of the 1^st Appellant, Apex Construction Management Limited (“the Company”) which, it was conceded, had been struck-off the register and dissolved. I dismissed the balance of the Respondent's strike-out Summons. Directions were given for the hearing of the 2^nd and 3^rd Appellant's appeal “on the preliminary issue of whether they are liable to the Respondent pursuant to the Human Rights Act, 1981”.

4. Following the hearing of the preliminary issue on March 13, 2015, on April 6, 2015 I delivered a Ruling2 which concluded in material part as follows:

• “26 … without deciding at this stage what the impact of this misdirection is on the disposition of the present appeal, I am bound to find that the Board erred in law by:

  • (a) initially finding that each respondent “had absolutely no intention of training or promoting Bermudians generally, or Black Bermudians in particular” (paragraph 20); and

  • (b) then proceeding to distinguish between the roles of the corporate and natural respondents by finding that the ‘First Respondent, with the knowledge if not the actual participation of the Second and Third Respondents, did engage in a form of discrimination against the Complainant of a type mentioned in section 6(1), paragraphs (c) and (f)…', in circumstances where there was no or no sufficient legal and/or evidential foundation for finding that mere knowledge on the 2^nd Appellant's part of discriminatory acts engaged in by other unidentified agents or employees of the corporate employer was enough to render him liable.

• 31 … I am unable to finally resolve the preliminary issue of “whether they are liable to the Respondent pursuant to the Human Rights Act, 1981”, either in the 2^nd Appellant's favour or against him at this stage, although said issue was resolved by concession in favour of the 3^rd Appellant. The appeal may now be listed for hearing of the remaining grounds of appeal and, in any event, on the question of whether the misdirection in law which the Board made was either:

  • (a) so substantive as to undermine the validity of the decision altogether; or

  • (b) so technical that it affords an insufficient basis for setting aside the decision at all.”

5. At the hearing of the appeal, the main complaints advanced by the Appellant were that:

• i. an appellate court should not make primary findings of wrongdoing on the Appellant's part (.i.e. that he had actively participated in any discriminatory acts);

• ii. the rules of natural justice had been infringed because he had not been given notice of the specific grounds on which he was ultimately found to have been liable; and

• iii. the Board applied the wrong legal test on discrimination.

6. The first two grounds appeared to me to have more conviction to them and oral argument focussed on the second main ground of appeal. The third ground can be dealt with more shortly. To assess the merits of the two main planks of the appeal, it is necessary to consider two aspects of the case presented before the Board. Firstly, it is crucial to determine whether the unambiguous finding that the Company committed the relevant discriminatory acts was implicitly based on a finding that the Appellant participated in the relevant acts. In other words, was there (or ought there to have

been) by necessary implication a primary finding that the Appellant was guilty of more than having “knowledge” of the unlawful conduct? Secondly, was the Appellant deprived of a fair hearing because he had no sufficient opportunity to meet the allegations which were found to have been proved against him?

The Board's decision

7. It was common ground that the Respondent's initial and primary complaint was that he had been discriminated against on the grounds of his place of origin. Paragraph 5 of the Board's judgment states, so far as is material, as follows:

“5. The crux of the Complaint, as drafted, is that the Complainant was : (1) offered employment on terms less favourable than the terms offered to others, and those others consisted of groups of Polish and Canadian contract workers; (2) subject to special conditions of employment, in that he claims he was denied the opportunity to work overtime; and (3) (by his Amended Complaint) suffered reprisals in the nature of ‘staged’ (or false) complaints in order to justify termination of his employment with the First Respondent…”

8. The Appellant “was the Operations Manager (the ‘boss’ for present purposes) of the First [Appellant]” (paragraph 4). The following substantive findings of discrimination were thereafter recorded:

• i. “20 … The evidence is clear and we find as a fact, that the Respondents had absolutely no intention of training or promoting Bermudians generally, or black Bermudians in particular. We are under no doubt at all that the Respondents wanted ‘black faces in the hole’, that is, black workers on the construction site in order to support their claims for work permits for contract workers, such as the Polish and Canadian workers mentioned above. The evidence of all witnesses for the Complainant, no matter how unsatisfactory those witnesses might have been, was clear on this point. Indeed, no credible evidence of any form of training for Bermudian labourers was led by the respondents”;

• ii. “30. Our finding is that the first Respondent, with the knowledge if not [the] actual participation of the Second and Third respondents, did engage in a form of discrimination against the Complainant of a type mentioned in section 6(1), paragraphs (c) and (f), viz. refusing to train or promote an employee and maintaining separate lines of progression for advancement in employment based upon criteria specified in section 2((2)(a) [i.e. direct discrimination on any of the prohibited grounds], where the maintenance will adversely affect any employee.

• 31. If we are wrong in our finding in paragraph 30, above, we would go on, as Mr. Doughty invited us to do, to consider whether the Complainant was a victim of indirect discrimination and we would come to the same conclusion for essentially the same reasons.

• iii. “35 … We have taken a view of this case which does not correspond with the primary case presented by either party, but we have come to a conclusion that we agree on and that we are convinced on the evidence reflects the true state of affairs.”

The Factual Findings made by the Board

9. Identifying the findings made by any trier of fact requires an interpretation of the articulated decision against the background of the evidence led before the tribunal. The express findings recorded were as follows:

• i. Primary finding: “The evidence is clear and we find as a fact, that the Respondent had absolutely no intention of training or promoting Bermudians generally, or black Bermudians in particular” [emphasis added];

• ii. Conclusory finding: “Our finding is that the first Respondent, with the knowledge if not [the] actual participation of the Second and Third respondents, did engagein a form of discrimination against the Complainant of a type mentioned in section 6(1), paragraphs (c) and (f), viz. refusing to train or promote an employee and maintaining separate lines of progression for advancement in employment based upon criteria...