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Sunday, 19 January 2014

Workplace bullying & harassment

Q: I am trying to find some information on laws or policies relating to workplace bullying in Trinidad & Tobago.

A: Everyone should be treated with dignity and respect at work. Bullying and harassment of any kind are in no-one's interest and should not be tolerated in the workplace.
Bullying may be characterised as offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means intended to undermine, humiliate, denigrate or injure the recipient. Bullying itself isn’t against the law, but harassment is unlawful under the Offences Against the Person(Amendment) (Harassment) Act, (2005).

Examples of bullying or harassing behaviour in the workplace could include:
  • spreading malicious rumours, or insulting someone by word or behaviour (particularly on the grounds of age, race, sex, disability, sexual orientation and religion or belief)
  • copying memos that are critical about someone to others who do not need to know
  • ridiculing or demeaning someone – picking on them or setting them up to fail
  • exclusion or victimisation
  • unfair treatment
  • overbearing supervision or other misuse of power or position
  • unwelcome sexual advances – touching, standing too close, the display of offensive materials, asking for sexual favours, making decisions on the basis of sexual advances being accepted or rejected
  • making threats or comments about job security without foundation
  • deliberately undermining a competent worker by overloading and constant criticism
  • preventing individuals progressing by intentionally blocking promotion or training opportunities.

What employees should do if they’re bullied or harassed
Employees should see if they can sort out the problem informally first. If they can’t, they should talk to their:
  • manager
  • human resources (HR) department
  • trade union representative
  • Legal action (last resort)

Wednesday, 1 January 2014

Compensation for wrongful police detention & police brutality


Q: After being wrongfully arrested and subjected to police brutality, I want to sue the police. What kind of compensation can I expect if I go to court?

A: In Thaddeus Bernard and Another v Nixie Quashie (1992)Chief Justice Michael de la Bastide noted that: "There is a tendency among a minority of uniformed officials in this country to exercise their authority in an oppressive and unreasonable manner."

Any wrongful detention is a breach of one's Constitutional right as stated in s.4(a). As Lawrence LJ said in Walter v Alltools (1944), “a false imprisonment does not merely affect a man’s liberty; it also affects his reputation."

As a result, you will receive damages (compensation), which is designed to make up for pecuniary (monetary) or non-pecuniary loss, and this is an area that the courts don't take lightly.

There are two main types of damages:

1. General damages
In Commonwealth Caribbean jurisdictions, general damages are usually assessed according to the guidelines laid down by Wooding CJ in Cornilliac v St. Louis (1965):
a) the nature and extent of the injuries sustained;
b) the nature and gravity of the resulting physical disability;
c) the pain and suffering which had to be endured;
d) the loss of amenities suffered; and
e) the extent to which, consequentially, pecuniary prospects have been materially affected.

Madam Justice Pemberton in Elva Dick-Nicholas v Jayson Hernandez and Capital Insurance Limited (2006) also added future medical care to the list.

2. Exemplary/Special damages (mostly referred to as punitive damages in the USA)
As stated in British Transport Commission v. Gourley [1956], special damage “has to be specifically pleaded and proved".

Generally, exemplary damages are limited to the circumstances set out by Lord Devlin in the leading case of Rookes v Barnard [1964], but this has rarely been followed.
1.     Oppressive, arbitrary or unconstitutional actions by the servants of government.
2.     Where the defendant's conduct was 'calculated' to make a profit for himself.
3.     Where a statute expressly authorises the same.

In the UK, there are specific numerical guidelines, which were most clearly set out in Thompson v Commissioner of Police of the Metropolis [1997] CA, but even before that in the aforementioned Thaddeus, T&T courts expressed disapproval of the mathematical approach to the assessment of general damages in these types of cases, which I personally believe to be extremely fair as every case is different. 

There are many T&T cases that can be followed, but whatever the Judge chooses will obviously depend on the facts of the individual case. With that being said, however, here are a few cases that should give you an idea of what to expect:

Kedar Maharaj v AG (2009)
Where a claimant was detained/falsely imprisoned at the St Ann’s Hospital for 29 days and was awarded $280,000.00 on 2nd February, 2010.  There were several aggravating factors and an award of $50,000.00 was made in exemplary damages.

Brahim Rampersad v AG (2002)
Paray-Durity M awarded $190,000.00 on 28th April,  2010 for 14 days false imprisonment and malicious prosecution, listing several aggravating factors.

Kennty Mitchell v PC Hobbs and AG (2007)
The police arrested the claimant believing there was a warrant for his arrest, when in fact there was not. He was arrested for 2 days 7 ½ hours and Jones J on 12th June, 2008 awarded $100,000.00 for wrongful arrest and false imprisonment and a further sum of $25,000.00 in exemplary damages.

Felix Hyndman v The Attorney General (2001)
Tam J in July 2001 awarded $85,000.00 as general damages for assault, false imprisonment for 20 days and malicious prosecution, inclusive of aggravated damages and a further sum of $25,000.00 for exemplary damages. The plaintiff was arrested and charged for possession of a dangerous drug i.e. cannabis sativa.

Ted Alexis v The AG of T&T & Ors (2000)
Cocaine was planted on a plaintiff and he was imprisoned for 2 ½ months and was awarded $100,000.00 for unlawful arrest, false imprisonment and malicious prosecution, inclusive of aggravated damages and $25,000.00 as exemplary damages to mark the court’s disapproval of the officer’s conduct.

Stephen Seemungal v The AG and John Rougier The Commissioner of Prisons (2009)
Boodoosingh J gave $100,000.00 as general damages inclusive of aggravated damages and $60,000.00 as exemplary damages for unlawful detention, on an invalid warrant, of 12 days.