The Port Authority of Trinidad and Tobago v Daban (Trinidad and Tobago)

Under section 4(d) of the Constitution of the Republic of Trinidad and Tobago, constitutional relief is not excluded merely because challenged conduct arises from contractual or private functions. A relevant constitutional dimension is sufficient. Equality requires broadly similar comparators and a material difference in treatment. If such a difference exists, the public authority must justify it by a legitimate aim and proportionate means. Where former employees were both re-employed as temporary workers, a difference in the grades they held previously may produce a different outcome without amounting to different treatment. The Board will generally refuse new grounds raised for the first time on appeal where they were not pleaded below and require evidence or assistance from the lower courts.

Mr Dukaran Dhaban claimed that the Port Authority had breached section 4(d) of the Constitution by re-employing him in 1980 as a daily paid temporary worker rather than restoring his former permanent status. He relied on Mr Hypolite as a comparator, who had been re-employed after imprisonment as a temporary worker. The first-instance court upheld the claim and granted a declaration. The Court of Appeal allowed the Port Authority’s appeal, holding that both men had received the same treatment because both had been re-employed as temporary workers, although their outcomes differed by reason of their former grades. Mr Dhaban’s executor appealed and sought to introduce new claims concerning delayed re-employment and port-follower status. The central issues were whether the constitutional claim was available in an employment context, whether the men were suitable comparators, and whether the new grounds should be admitted.

The Board dismissed the appeal and upheld the Court of Appeal’s decision setting aside the declaration.

1. Constitutional claim. The Port Authority was a public authority for section 4(d). Following the guidance in Boxhill v The Port Authority of Trinidad and Tobago Civil Appeal No 11 of 2008, a constitutional challenge is not excluded merely because the authority was performing functions characterised as private or arising from a contract. A relevant constitutional dimension is required. The allegation of discrimination supplied that dimension, so the proceedings were not an abuse of process.
2. New grounds on appeal. The Board applied the practice stated in Baker v The Queen [1975] AC 774 at 788. New points will generally not be permitted where they were not argued below, subject to exceptional circumstances. The delay issue was unpleaded, was not appealed at first instance, and required evidence and considered views from the local courts. The port-follower complaint was likewise unpleaded and had not been considered below. It was refused, and appeared in any event to lack material merit because Mr Dhaban had been continuously employed after 1980.
3. Comparators and treatment. Applying the approach in Webster v Attorney General of Trinidad and Tobago [2015] UKPC 10, [2015] ICR 1048, comparators need only be broadly similar, with differences material to the alleged difference in treatment. The Court of Appeal was entitled to compare the men at a high level: both had been employed by the Port Authority, had lost their employment through imprisonment, and had later been re-employed. Both were re-employed as temporary workers. There was therefore no relevant difference in treatment requiring justification.
4. Former employment grades. The argument that Mr Dhaban had to be restored to his former permanent grade failed. If the comparison depended on their previous grades, the material difference between their employment histories meant that Mr Hypolite was not a suitable comparator on that basis. The difference was one of outcome, not treatment, and no breach of section 4(d) was established.
5. Unresolved issue. The Board left open whether a claim could arise retrospectively when the relevant comparator only became available years after the alleged treatment. It proceeded on the assumption that this feature was not fatal to the claim.

1. Privy Council: In [2019] UKPC 22, dismissed the executor’s appeal and upheld the setting aside of the declaration.
2. Court of Appeal of the Republic of Trinidad and Tobago: Allowed the Port Authority’s appeal and set aside the first-instance declaration.
3. First instance: Tiwary-Reddy J upheld the constitutional claim and declared that Mr Dhaban had been denied equality of treatment.