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All is not lost for retired Airport worker – Part III

Maurice Bishop International Airport (MBIA) at Point Salines

A former longstanding worker with the Grenada Airports Authority (GAA) who felt aggrieved with her compensation package is leaving the high court with mixed feelings based on a ruling from Justice Raulston Glasgow.

Roselyn Charles took legal action after complaining that the formula used to calculate her financial benefits was the wrong one and was seeking a package in the region of just over EC$125, 000.00.

The retired female employee had approached the court seeking various reliefs for alleged breaches of a contract of employment made between herself and the Airports Authority which entitled her to certain emoluments.

On 1st August 1984, Charles began employment with the Authority in the office of Air Traffic Control (ATC) Officer and prior to that date, she was employed as a civil servant appointed by the Public Service Commission of Grenada (PSC).

Her engagement with the Authority came about after she was seconded to the Authority by the PSC.

Charles continued working with GAA on the basis of several contracts from the time of her secondment until 5th May 2016 when she retired.

Attorney-at-law Nazim Burke, the former Minister of Finance in the 2008-13 Congress government appeared for the Claimant while Kristopher Ross Fields represented GAA in the matter.

In his ruling, Justice Glasgow said the claims for the relief sought by Charles are dismissed except to say that –

(1)   The Authority is to pay Ms. Charles any difference in the sum paid to her pension at the rate of 3% per annum as opposed to 4.2%.

(2) The Authority is to recalculate the retroactive salary payments to take account of the income tax rates existing between 2011 to 2016.

(3) The Authority must pay Ms. Charles any sums that may be due to her further to the terms of paragraphs (1) and (2) within 30 days of this judgment. Ms. Charles has been partially successful on her claim. She is awarded costs of $3000.00.

(4) As a public service, THE NEW TODAY reproduces in full the Raulston Glasgow ruling in the case:-

Concluded agreement or not?
[62] The multiple factual and legal arguments presented by the parties on this point have been fulsomely recited above. For my part, I find it difficult to agree with Ms. Charles that there was not a concluded agreement on the terms set out in the 10th April, 2011 letter. As was rightly pointed out by the Authority, the agreement, in detailed fashion, outlined terms for the engagement which included the duties, responsibilities, hours of employment, place of employment, medical benefits, holidays, sick days, requirement for continuing education, remuneration, periods of notice, requirements of confidentiality, and the circumstances under which Ms. Charles could be terminated. By signing these terms and conditions, Ms. Charles is assumed to have understood and agreed to the same. As was explained in Lux Locations –

“It is a basic rule of the common law that a person who signs a contractual document is bound by its terms whether he or she has read or understood the document or not. That is so even if the person concerned is a foreigner who cannot read English: The Luna [1920] P 22. The justification for the rule is the fundamental importance for the orderly conduct of business of being able to treat a person’s signature as proof of their consent without having to inquire into the person’s state of mind or other circumstances at the time when the document was signed.”

[63] Without more therefore, it is presumed that when Ms. Charles signed the agreement, she did so with comprehension and with the intention of being bound by it. The terms of the agreement are clearly drafted and there is no claim that there was any obfuscation or confusion about what it says. Clause 5.0 of the agreement on salary (which is in dispute in this claim) reads –

“Remuneration and other Benefits

The remuneration for the Air Services Manager shall be as follow [sic]

Fixed salary $6800.00
Transportation allowance 350.00
Telephone allowance 53.00”

[64] I do not see any confusion possible with what is said in clause 5.0. Ms. Charles’ claims do not satisfactorily explain why she went ahead and signed an agreement containing this express provision on salary. As was instructively noted by her Ladyship Dame Janice Perreira Chief Justice, in Reniston Limited v Nedlands Overseas Inc,

“The general rule is now well-established that the court will not interfere with the clear terms of a contract or relieve a contracting party from the terms of its agreement, save in limited circumstances, such as where there is some element of illegality, incapacity on the part of a party to the contract, mistake, duress, misrepresentation and frustration.”

[65] In her statement of claim at paragraph 4, Ms. Charles asserts that she mistakenly signed the letter containing the agreement. In respect of this assertion, there are no particulars of the mistake. In her witness statement she explains that there was no way that she would accept a salary that was less than that of her predecessor. Additionally, in her witness statement, several reasons are given for the contention that the clause should not apply, including matters of implied terms and past practices of the Authority. Breach of the Employment Act is canvassed in her closing submissions. But I observe that Ms. Charles does not provide any satisfactory reasons to underpin her claims that she mistakenly signed the agreement.

[66] Where mistake is concerned, it is said that the law recognizes 3 types of mistakes –

“(a) common mistake – where the mistake is shared by both parties, is fundamental and directly affects the basic definition of what the parties are contracting for; (b) mutual mistake – where the parties are at cross- purposes with one another; and (c) unilateral mistake – where one party is mistaken and the other knows or ought to have known of the mistake.”

[67] Any cursory examination of the contentions in this claim does not expose any mistake of the sort recognized by the law. I think that what is said by former Chief Justice of our court, Adrian Saunders CJ in Hotel de Health (Caribbean) Inc et al v Webster et al38, referencing The Olympic Pride is quite apposite to the facts here –

“The Court is reluctant to allow a party of full capacity who has signed a document with opportunity of inspection, to say afterwards that it is not what he meant. Otherwise, certainty and ready enforceability would be hindered by constant attempts to cloud the issue by reference to pre- contractual negotiations. These considerations apply with particular force in the field of commerce, where certainty is so important.”

[68] In this case, the complaint does not relate to pre-contractual deliberations, but the learning recited in Hotel De Health is nonetheless more than persuasive. The law will not permit a person who, with legal capacity, signs a contract to come afterwards to lament its terms and obligations except in quite limited instances.

[69] Before departing this issue, I must address Ms. Chares’ claim that there was no concluded agreement because the Authority acknowledged and paid retroactive salary due to her from April 2011 to 2016 when she retired. Ms. Charles has accepted that these retroactive payments were in respect of salary increases paid by the Authority to all its workers over the period in question. It therefore, euphemistically speaking, requires some perambulating in strained logic if one is to deduce, as Ms. Charles asserts, that these payments were an acknowledgment by the Authority that the parties did not have a concluded agreement either generally or specifically on the question of salary. I find that there is nothing in the claim presented by Ms. Charles that urges this court to find that she did not voluntarily enter into this agreement with full comprehension of its terms or that the parties ought not to be bound by the terms of the same.

[70] I will of course address below Ms. Charles’ view that implied terms on salaries should be attached to the agreement and that the agreement as a whole or on the issue of salary should be voided for reasons of breach of the Employment Act.

Implied term
[71] Ms. Charles claims that even if there is a concluded agreement with the Authority, the following 2 clauses are, by implication, applicable to the same –

(1) That it was implied from previous practice that she would be paid the same salary as the previous office holder.

(2) That when she was confirmed in the post of Manager, ATS, she would be paid retroactive pay or “back pay” comprising the difference between the salary she received while she was acted in the post of Manager, ATS and the salary paid to her predecessor in office.

[72] It is quite a well-accepted legal posture that in addition to the express terms of an agreement, there are specific circumstances in which the law may imply terms into an agreement. Terms may be implied for instance by way of custom of trade or the dealings of the parties, by statute or as a matter of the facts of a particular case. This part of the discourse focuses on Ms. Charles’ assertions in respect of the latter form in which terms may be said to be implied in an agreement. In this regard, where implication in fact is concerned, Halsbury Laws of England may be said to have articulated a useful synopsis of the law based on Lord Simon’s admonitions in BP Refinery (Westernport) Pty Ltd v Shire of Hastings. The learned authors note that –

“A term may be implied ‘in fact’ where it is ‘necessary’ to give effect to the intention of the parties. The courts have developed a number of tests and may take into account a number of factors to determine whether a term of the contract may be implied on this basis. It has been said that: the term in question must be reasonable and equitable; it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; it must be so obvious that ‘it goes without saying’; it must be capable of clear expression; and it must not contradict any express term of the contract”

[73] Elsewhere the issue has been discussed in this manner –

“In implying terms in fact, the intention of the parties (objectively ascertained) is sought, ‘collected from the words of the agreement and the surrounding circumstances’. It is emphasised that the court will not ‘improve the contract which the parties have made for themselves’ and traditionally the search for the parties’ intention has occurred within restricted boundaries, through the use of a ‘stringent’ test or tests (the ‘business efficacy test’ and the ‘officious bystander test’). These tests have confined the search for the parties’ intention to its least disputable area and have thus provided some assurance that the courts are not rewriting the parties’ bargain.”

[74] The learning indicates several other factors that the courts may consider in determining whether a purported implied term was intended. Halsbury’s observes that –

“There is no room for an implied term which is inconsistent with an express term of the contract. The courts are also reluctant to imply a term where the parties have entered into a carefully drafted written contract containing detailed terms agreed between them; or where it is essential that contracts of a particular type should operate in accordance with the terms which appear on their face, for example the financial undertakings used in connection with international commerce; or where the contract is novel or carries particular risk. The term to be implied must not be too vague, and it must be possible to formulate its content with adequate precision. It has been said that it is impossible to imply terms into a unilateral contract on the basis that since such an implied term would impose obligations on both parties, it would destroy the unilateral nature of the contract, but such reasoning does not preclude the implication of a term which imposes an obligation only on the promisor, nor a term which imposes an obligation on the promise in cases in which an originally unilateral contract becomes bilateral in the course of its performance.”

[75] The authors of the Common Law Series on Contracts offer these thoughts on some of the factors that the court may consider when determining whether an implied term should apply in fact –

“Such factors indicate that a particular version of the term is not so obvious that it goes without saying or necessary to give business efficacy to the contract, and the problems of trying to deal with these objections were noted in Ashmore v Corpn of Lloyds (No 2)45:

”In summary, the original way in which the implied [term] was pleaded was too wide to be reasonable, let alone a matter of necessity. This was recognised by the plaintiff’s counsel and successive attempts were made to overcome these difficulties. These inevitably became more complex and less likely to satisfy the officious bystander test. There is no possibility of both parties answering the question posed … with an immediate “yes of course, that is so obvious it goes without saying”.”

More simply, and more broadly, there is an obvious problem in trying to argue that a term should be implied on the basis of the parties’ intention if the content of the term is not clear. Lord Bingham MR observed in Philips Electronique Grand Public SA v British Sky Broadcasting Ltd

”the question of whether a term should be implied, and if so what, almost inevitably arises after a crisis has been reached in the performance of the contract. So the court comes to the task of implication with the benefit of hindsight, and it is tempting for the court then to fashion a term which will reflect the merits of the situation as they then appear. Tempting, but wrong…”

The existence of detailed express terms, properly construed, will also militate against the implication of a term. In those cases there is no ‘obvious lacuna which the court can fill in confidence that it is doing no more than giving effect to what the parties intended’. That is particularly the case if there is a term, or terms, dealing with the area in relation to which it is claimed that there should be an implied term. In contrast, it has been viewed as strongly favouring an implication that the express terms do not provide a complete contract, to the extent that such a factor may seem at times to be referred to as a separate basis of implication. However, in Society of Lloyd’s v ClementsonSteyn LJ made the point that:

”It is not analytically right to say there is an independent … category [of] incomplete contracts, cases of so-called incomplete contracts are covered by principles governing terms implied by fact or by law.”

The situation may also be such that the incompleteness of the contract may not indicate that the parties intended there to be further terms. Where there was a carefully negotiated collective agreement across a broad front, representing a compromise between the objectives of employer and employee it was said:

”should any topic be left uncovered by an agreement of that kind, the natural inference … is not that there has been an omission so obvious as to require judicial correction, but rather that the topic was omitted advisedly from the terms of the agreement on the ground that it was too controversial or too complicated to justify any variation of the main terms of the agreement to take account of it.”

More broadly, the point has been made that:

”If the parties appreciate that they are unlikely to agree on what is to happen in a certain not impossible eventuality, they may well choose to leave the matter uncovered in their contract in the hope that the eventuality will not occur.”

[76] In my view the foregoing exposition of law on the issue does not lead to the conclusion that either proposed implied term is present on Ms. Charles’ claim.

[77] Regarding the claim that the clause on salary should be read to suggest that she should be paid the same salary as her predecessor, the extensive learning recited above precludes such a finding for the following reasons –

(1) There is an express clause on the remuneration to be paid to Ms. Charles. Clause 5.0 recited above in this judgment appears to be a complete code on this issue. In Marks v Spencer, Lord Neuberger noted that is a “cardinal rule” that no term should be implied in an agreement where that purported implied term contradicts an express term. His Lordship opined that –

“In most, possibly all, disputes about whether a term should be implied into a contract, it is only after the process of construing the express words is complete that the issue of an implied term falls to be considered. Until one has decided what the parties have expressly agreed, it is difficult to see how one can set about deciding whether a term should be implied and if so what term… Further, given that it is a cardinal rule that no term can be implied into a contract if it contradicts an express term, it would seem logically to follow that, until the express terms of a contract have been construed, it is, at least normally, not sensibly possible to decide whether a further term should be implied.”

(2) It does not take much effort to form the view that clause 5.0 is an express term that, on its face, contains no lack of clarity on its intention. But Ms. Charles explains that notwithstanding what clause 5.0 says, based on previous practice, which was in the past applied to her on other appointments, a term should be implied that she should have been paid the same salary has her predecessor in the office of Manager, ATS. In addition to what I have stated above, I find that this argument fails for several reasons –

(a) The proposed implied term fails the business efficacy and the officious bystander tests. On the first test, Ms. Charles has not shown that clause 5.0 will not work if it is not read in the manner that she suggests. In other words, she has not shown that it would be necessary to read the clause in the manner that she suggests in order to lend business efficacy to the agreement on salary.

(b) In this regard, the point was made by the Authority, and I entirely agree with it, that there could be several factors that govern the basis on which parties agree to costs of services or in this case, the salary to be paid for services. I have made the point above that this was a contract freely agreed between the parties. Ms. Charles has not shown that it was not an act of her own free will and understanding. There was nothing preventing Ms. Charles from demanding and insisting on the same salary as her predecessor in office before she entered this agreement. Indeed, she makes the point that several of her colleagues, whether by themselves or through the union argued or fought for and received the salary of their erstwhile colleagues. I find that Ms. Charles has failed to demonstrate that clause 5.0 requires the proposed implied clause to give efficacy to the intention of the parties and therefore the proposed clause is rejected.

(c) On the second test, I cannot see how on the facts presented by Ms. Charles, the officious bystander would form the view and that it would go without saying that the parties intended that, notwithstanding what they expressly agreed on salary, that Ms. Charles would be paid the salary of her predecessor in office. I am not saying that where express clauses of this sort are concerned, in some cases an implied term cannot be found to apply. Indeed, the learning extracted and recited above indicates that the process of interpreting what was intended may lead one to revisit the interpretation to be given to an express clause once it is decided to imply a term. See for instance Lord Hoffman in A-G of Belize v Belize Telecom Ltd.

(3) Lord Neuberger makes the point in Marks and Spencer that –

“I accept Lord Carnwath’s point in para 71 to the extent that in some cases it could conceivably be appropriate to reconsider the interpretation of the express terms of a contract once one has decided whether to imply a term, but, even if that is right, it does not alter the fact that the express terms of a contract must be interpreted before one can consider any question of implication.”

(4) I do not see any basis in the face of the understanding and interpretation of clause 5.0 to form the view that the officious bystander would say that the implied term proposed in this case was intended.

(5) Further, in any event, I do not see in the case presented by Ms. Charles the obvious and unassailable evidence that the practice she relies on does exist. In fact, what the evidence presented by Ms. Charles suggests is that the Authority appears to pay its managers or senior officers salaries based on factors that are not present before this court. Indeed, the Authority says in its evidence that a number of factors may impact the amount of the salary that the Authority offers to a manager. The learning recited above suggests that the practice must be one that is capable of precise formulation and articulation for it to be deemed an implied term. Ms. Charles wishes the court to form the view that the Authority’s consistent method of paying salary to its managers or supervisors consisted of a practice that the person ascending to those offices IS paid the salary of their predecessor in office. I do not agree that the facts suggest that the practice is one of precise formulation and articulation as stated by Ms. Charles.

(6) Indeed, her own evidence demonstrates that on several occasions, office holders were only paid the salary of previous office holders after protestations and interventions by their union. See the cases of Ms. Paul and Ms. Panchoo who were only paid the same salary as their predecessors in office after intervention by and negotiations with their unions. It cannot be said that in the face of such evidence that the alleged practice was sufficiently defined and consistently followed for the court to say that it in fact did exist in the manner alleged by Ms. Charles.

[78] On the question of the practice regarding the “back pay” and that a term should thereby be implied, I equally find that, for the reasons set out above, the alleged implied term does not apply. On this issue, it is indeed quite telling that there are 2 bases on which a “back pay” can be said to apply, if at all. I agree with the Authority that it seems quite plausible that the Authority would pay someone who ascends to an office in which they were acting, the difference between the remuneration they received while they were acting therein and the salary they are paid once they were confirmed in the post where that latter salary is more than the salary they received while acting. The logic is that for all intents and purposes, they held that office from the time of acting therein. If the person agrees to a salary that is less than the sum which they were paid while they were acting, then there is no “back pay” to pay them.

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[79] This is precisely what happened in Ms. Charles’ case. She agreed to a salary that was less than the sum that she received while acting (also less than the sum paid to her predecessor in office). There was no difference in salary due to her in such circumstances. It was only in the instance that she was paid a salary that was more than the salary paid to her while she was acting, whether it was based on a salary that was paid to her predecessor in office or otherwise, that a term could be implied, if at all, that the Authority was duty bound to pay her the difference between the salary that she was paid while acting and the salary that she received when confirmed in the post. For these additional reasons, I dismiss the claim for a “back pay”.

Discrimination
[80] Ms. Charles’ case, as set out in her written submissions, is that the term on salaries should be set aside on the grounds of discrimination. Her case on this aspect has been recited fulsomely above. I do not think that the relief sought could be granted for the reasons stated below.

[81] It might assist this part of the discourse to highlight aspects of the journey on the discrimination point being made in this case-

(1) In her statement of claim at paragraph 6, Ms. Charles pleaded that “…contrary to the Claimant’s legitimate expectation she was discriminated against as there were persons in other acting positions for the same period as the Claimant who were paid in accordance with the established practice and procedure of the Defendant mentioned above and the Claimant has therefore suffered loss…”.

(2) The “established practice and procedure” mentioned at paragraph 6 of the statement of claim is in respect of an alleged practice to pay the person confirmed in a post, the same salary as their predecessor in office along with a “back pay”. The details of both alleged practices were addressed above in this judgment.

(3) The Authority, responded to paragraph 6 of the statement of claim by stating in its defence that, among other things, Ms. Charles had not made out on her claim, the basis on which she asserted that she was entitled to a “bigger salary”. See paragraph 3(c) of the defence.

(4) Ms’ Charles’ replied to the Authority’s defence addressed paragraph 3(c) of the defence by reiterating the claim that she held a legitimate expectation to be paid the salary of the previous holder of the office of Manager, ATS.

(5) Ms. Charles’ witness statement outlined the following facts –

(a) At paragraph 5 the witness statement spoke of the established practice to pay the claimed “back pay”.

(b) At paragraph 6 the witness statement spoke of an instance where Ms. Charles was paid the claimed back pay.

(c) At paragraphs 8 to 9 the witness statement spoke of the Authority’s’ failure to pay the “back pay” and Ms. Charles’ efforts to receive same.

(d) At paragraphs 10 to 17 the witness statement spoke of her efforts to be paid the difference in salary, instances where other workers were paid the same salary as previous office holders and paid the claimed “back pay” and her threats to take the matter to court.

(e) The rest of the paragraphs of the witness statement spell out her further interactions with the Authority on her above stated claims and matters related to the issues of taxation.

(6) In her closing submissions filed on 30th June 2023, Ms. Charles argued, for the first time, that her agreement with the Authority was void because it contravened the terms of the Employment Act. This allegation was fleshed out in paragraphs 40 et seq of the submissions where sections 3, 26, 27 and 28 of the Employment Act recited above in this judgment were relied on.

[82] For my part, I cannot agree with Ms. Charles that our procedural rules on pleadings and the case law expounding the approach to pleadings permit what has transpired on this claim. I start with CPR 8.7 which requires a claimant to “include in the claim form or statement of claim a statement of all the facts on which the claimant relies.”

[83] The case law from our courts and beyond has given salutary admonitions on the manner in which CPR 8.7 and similar rules are to be interpreted and applied. In Saint Lucia Motor and General Insurance Co. Ltd v Modeste, her Ladyship Dame Janice Perreira, Chief Justice made the following observation with respect to pleading a claim of illegality –

“Whilst I agree with counsel for the Insurer that illegality is a well-recognized defence, it must nevertheless be properly pleaded. In British Airways Pension Trustees Ltd v Sir Robert McAlpine & Sons Ltd Saville LJ said that the basic purpose of pleadings is to enable the opposing party to know what case is being made in sufficient detail to enable that party properly to prepare to answer it. This was a pre CPR case, but the principle nonetheless essentially remains intact under the current CPR regime. This was recognized and accepted by this court in East Caribbean Flour Mills50 where Barrow JA cited with approval the dictum of Lord Woolf MR in McPhilemy v Times Newspapers Ltd51 which stated the current position thus:

“The need for extensive pleadings including particulars should be reduced by the requirement that witness statements are now exchanged. In the majority of proceedings identification of the documents upon which a party relies, together with copies of that party’s witness statement, will make the detail of the nature of the case the other side has to meet obvious. This reduces the need for particulars in order to avoid being taken by surprise. This does not mean that pleadings are now superfluous. Pleadings are still required to mark out the parameters of the case that is being advanced by each party. In particular they are still critical to identify the issues and the extent of the dispute between parties. What is important is that the pleadings should make clear the general nature of the case of the pleader. This is true both under the old rules and the new rules.

I consider that it must also be remembered that normally a party would not have prior sight of an opposing party’s witness statement until he/she has no doubt prepared and filed his/her own. CPR 29.7 speaks to the exchange of witness statements, and for filing witness statements in a sealed envelope where the opposing party is not yet ready to exchange. In my view, it would be grossly unfair and embarrassing to a party to learn of the factual basis on which a mere allegation of fraud or dishonesty is made on the pleading, only at the time when a witness statement is exchanged. I do not consider that the statement of Lord Woolf in McPhilemy and referred to by Lord Hope in Three Rivers and adopted in East Caribbean Flour Mills is to be understood in any other way than to make clear that the factual basis underpinning the allegation of fraud or dishonesty and the like, must be set out in the pleading; even if the details of those averments may properly be left to be fleshed out in the witness statements. The instant case is simply devoid of any factual basis for making the averment and cannot in the circumstances be entertained.” (Bold emphasis mine)

[84] In East Caribbean Flour Mills Barrow JA made the point that –

“Lord Hope’s reproduction and approval of the exposition by Lord Woolf MR in McPhilemy v Times Newspapers Ltd on the reduced need for extensive pleadings now that witness statements are required to be exchanged, should be seen as a clear statement that there is no difference in their Lordships’ views on the role and requirements of pleadings. The position, as gathered from the observations of both their Lordships, is that the pleader makes allegations of facts in his pleadings. Those alleged facts are the case of the party. The “pleadings should make clear the general nature of the case,” in Lord Woolf’s words, which again I emphasize. To let the other side know the case it has to meet and, therefore, to prevent surprise at the trial, the pleading must contain the particulars necessary to serve that purpose. But there is no longer a need for extensive pleadings, which I understand to mean pleadings with an extensive number of particulars, because witness statements are intended to serve the requirement of providing details or particulars of the pleader’s case.” (Bold emphasis mine).

[85] Recently, our Court of Appeal again reemphasized the importance of pleadings. In The National Lotteries Authority v Jerome De Roche, Ward JA, had this to say:–

“The claimant must plead the essential facts that constitute its case, and those facts must be sufficient to establish a cause of action and to enable the other side to know the case it has to meet in sufficient detail. CPR 8.7A prohibits reliance on allegations or facts not pleaded unless the judge gives permission, or the parties agree.” (Bold emphasis mine).

[86] At paragraph 6 of her statement of claim, Ms. Charles claims that the Authority discriminated against her when it failed to abide by prior practice that she “legitimately expected” to be followed when she was appointed to the post of Manager, ATS. This was the case that was fleshed out in her witness statement. I am of the view that it was an egregious and fatal procedural failure to wait until closing submissions were filed in June 2023 to argue that the agreement is void for violating the Employment Act. The specific contention on that score is that the agreement violated the Employment Act on grounds of discrimination based on sex.

[87] By way of example of the difficulties presented by Ms. Charles’ approach, it is noted that section 26 of the Employment Act outlines several instances in which discrimination is prohibited. The section speaks of discrimination on grounds of “race, colour, national extraction, social origin, religion, political opinion, sex, marital status, family responsibilities, age or disability, in respect of recruitment, training, promotion, terms and conditions of employment, termination of employment or other matters arising out of the employment.”

[88] The Privy Council made the following observation in the case of Bhagwandeen v Attorney General –

“A claimant who alleges inequality of treatment or its synonym discrimination must ordinarily establish that he has been or would be treated differently from some other similarly circumstanced person or persons, described by Lord Hutton in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] 2 All ER 26 at paragraph 71 as actual or hypothetical comparators. The phrase which is common to the anti-discrimination provisions in the legislation of the United Kingdom is that the comparison must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.”

[89] Although referencing the constitutional provisions on equality of treatment set out in the Trinidad and Tobago constitution, the guidance is equally of forceful relevance to an enquiry into discrimination under the provisions of the Employment Act. Ellis J. in Leonard Fahie v Attorney General, also a constitutional claim alleging discrimination, eloquently offered the following salient observation –

“The Respondents’ evidence would therefore have to demonstrate and prove the following: 1. That they were in a similar position to persons of comparable circumstances (the comparator test) – The situations must be comparable, analogous, or broadly similar, but need not be identical. Any differences between them must be material to the difference in treatment; and 2. That they were treated differently from those other person(s).”

[90] On this claim, other than an allegation that (1) her predecessor in office is a male and that she is a female and; (2) that she was paid a lower salary than he was paid, there are no other material particulars to aid an assessment of discrimination on the basis of sex. To be fair to Ms. Charles, she did allude in her evidence to the cases of Maureen Japal, Glen Forsyth, Alana Paul and Hernel Panchoo who were paid the same salaries as their predecessor in office. They are 2 material matters to observe on this score –

(1) These persons were presented in support of a claim made by Ms. Charles that she was discriminated against when the Authority failed to follow an alleged practice that Ms. Charles’ legitimately expected to be followed in her case. At no point in any of the statements of case were these persons presented in support of claim of discrimination on the grounds of sex. The closing submissions filed on 30th June 2023 and 18th August 2023 clearly demonstrate that, for the first time, an entirely different claim of discrimination on the grounds of sex was being pursued.

(2) Even if the court is to permit Ms. Charles to pursue the claim of discrimination on the grounds of sex that she now presents in her closing submissions, it is difficult to see how the employees presented could be used as helpful comparators in the sense highlighted in Bhagwandeen or Fahie. For one thing, since the claim is one of discrimination on grounds of sex, the only comparator appropriate to her case would be Mr. Glen Forsyth who is the only male comparator. The comparison would end there though since Mr. Forsyth and Ms. Charles were appointed to different offices and their appointments may have been subject to different considerations as the Authority has explained. In any event, it is for Ms. Charles, in a case of discrimination, to present the type of evidence that meets the criteria set out in the law as explained in Bhagwandeen and Fahie. A defendant and by extension, the court ought to be presented with this material on a claim of discrimination to assess that the comparators are similar or are mainly similar and that the only or main distinguishing feature exposed by the comparison is the claimant’s sex.

[91] It seems incontrovertible then, that a claimant who wishes to charge that the employer acted in a discriminatory manner would be duty bound to: (1) identify in the claim the ground(s) on which it is said that the employer acted improperly and: (2) present sufficient facts on his or her claim to mark out the basis for such a claim. The employer would then be in a good position to answer the charge in a defence if it so wishes to do. As the courts have ruled consistently, there is no need to give extensive particulars of the assertion of discrimination in the statement of claim. Particulars could be expansively outlined in the witness statement. However, at a most basal level, the claimant should let the defendants know not only that he or she is claiming discrimination but also the grounds on which one is said to be discriminated against and some basic facts on which it is claimed that the cited discrimination occurred. It cannot be the case that the claimant waits until after the claim is filed and witness statements are filed and exchanged to point out the basis on which the discrimination is claimed and then the defendant is constrained to respond.

[92] I must add, and not parenthetically I think, that even if Ms. Charles reflectively reconsidered the basis of her claim after statements of case and witness statement were filed and exchanged, then permission to amend her claim to include the new causes of action would have been the advisable course to pursue. As matters now lie though, the learning presented above elucidates that the approach taken by Ms. Charles is patently impermissible. She did not present a claim for a violation of the Employment Act on the ground of discrimination on the basis of sex in her statement of claim or flesh one out in her witness statement and as such she is precluded from pursuing such a claim. The request for relief on the ground of discrimination must be and is hereby refused for this reason and the reasons stated above.

The taxes issue
[93] Ms. Charles raised several complaints about improper deduction of taxes which were recited above in this judgment. I will address each in turn-

(1) There is no basis to claim that all the retirement benefits should be recalculated based on the salary that the Authority paid to Ms. Charles’ former colleague in the office of Manager, ATS since a claim for payment of that salary has not been granted for the reasons set out above in this judgment.

(2) The claim that the pension should be paid be paid at 4% was addressed at the further case management held on 10th August 2023. The parties were asked to approach the banks where the pension funds were invested to ascertain the average rate of investments over the years. Ms. Charles filed the further submissions ordered on the issue on 18th August 2023 which show the average rate over the period that Ms. Charles made payments to be 4.2%. No objections were raised by the Authority. As such the Authority is to pay Ms. Charles any difference in the sum paid by way of retirement benefits at the rate of 3% per annum as opposed to 4.2%.

(3) There is no basis in law for the claim that Ms. Charles’ retirement benefits should be treated as gratuity to which section 25 (1)(i) of the Income Tax Act should apply. While it is correct that section 8 of the Airports Authority Act states that a seconded employee should not lose benefits by reason of the transfer to the Authority, there is nothing on the evidence to demonstrate that the pension paid to Ms. Charles should be treated as gratuity. Blacks’ Law Dictionary explains the term gratuity or gratuitous as an act “done or performed without obligation to do so; given without consideration…”. A pension is usually a sum or sums paid as retirement benefit due from the employer to the employer. In this latter context, a pension is usually a sum invested by the employer (often with contributions by the employee) which sum is guaranteed to the employee on retirement. Ms. Charles’ case falls within the latter context. The pension disbursements given to Ms. Charles by the Authority were made further to an agreed retirement scheme to which both employer and employee were contractually obligated to make contributions. It was not a gratuitous payment made by the Authority and cannot be rightly construed as gratuity generally or for the purposes of section 25(1) (i) of the Income Tax Act. In fact, section 8 of the Airports Authority Act advises that a civil servant who is transferred or seconded like Ms. Charles should not be affected in their “pension, gratuity or other allowance…”. Section 8 itself therefore makes differential reference to these terms and as such precludes the approach requested by Ms. Charles.

(4) Instructively, section 25(1) of the Income Tax Act on which Ms. Charles also relies makes a distinction between exemptions in cases of gratuity and pension. Even more impactful on this discourse is the fact that it is only in the year 2017 that government exempted from taxation, “any income accrued to a person as a result of his or her years of employment by way of pension or a lump sum payment.”56 The point is that pensions throughout section 25 are treated differently rom gratuity. It was for Ms. Charles to show that she was in fact paid a gratuity, to which section 25(1) (i) applies. She has failed to do so.

(5) Improper tax deductions from contributions made by Ms. Charles to the pension fund and interest earned on the PSB and the pension since that money was already taxed as income. The Authority has explained that Ms. Charles’ contributions and other interest paid were not taxed as she alleges. Ms. Charles has not shown how the detailed breakdown given by the Authority on this issue highlights that such taxes were indeed deducted.

(6) There is then the allegation that less in taxes could have been deducted in taxes from Ms. Charles’ pension if the Authority had registered the pension plan with the Comptroller of Inland Revenue as an approved plan within the terms of section 48 of the Income Tax Act. This complaint is dismissed as being raised without basis. Ms. Charles has not shown on the provisions of the Income Tax Act or the agreement that the Authority was obliged to take the step of registering the pension plan as an approved plan. That she may have benefited from a more favorable tax rate on her retirement benefits if the pension plan was so registered does not, without more, enlarge that possibility into a right that may be vindicated by seeking redress for alleged breaches thereof.

(7) Finally, Ms. Charles claims that the wrong tax rates were applied to retroactive salary payments made for the period 2011 to 2016. It is clear that the Authority applied the 2016 tax threshold to these payments. The Authority is to recalculate and remit these payments to Ms. Charles within 30 days of this judgment.

Conclusion
[94] The claims for the relief sought by Ms. Charles are dismissed except to say that –

(1) The Authority is to pay Ms. Charles any difference in the sum paid to her pension at the rate of 3% per annum as opposed to 4.2%.

(2) The Authority is to recalculate the retroactive salary payments to take account of the income tax rates existing between 2011 to 2016.

(3) The Authority must pay Ms. Charles any sums that may be due to her further to the terms of paragraphs (1) and (2) within 30 days of this judgment.

[95] Ms. Charles has been partially successful on her claim. She is awarded costs of $3000.00.

Raulston L.A. Glasgow
High Court Judge

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