Privy Council throws out dead Port worker's appeal

THE Privy Council has thrown out an appeal by the executor of the estate of a former Port Authority worker who claimed he was discriminated against when he was not re-hired as a permanent worker after he served a five-year prison sentenced for wounding.

Dukaran Dhaban’s estate continued his constitutional challenge at the Privy Council even after his death.

Dhaban, in his claim, argued that he was treated unequally by the authority, since another of his co-workers also served a prison sentence and was re-employed at the same grade he had before he went to prison, as a temporary worker.

Dhaban contended he too should have been re-employed at the same grade as before he went to prison, as a permanent worker. He was released from prison in 1969, and was re-hired, but as a daily-paid temporary worker. In 2004, he retired from the authority after being declared medically unfit.

Dhaban won his claim in the High Court when the first-instance judge held that he was entitled to rely on his right to equal treatment under section 4(d) of the Constitution.

She also declared that the authority denied him his rights in failing to re-employ him as a permanent worker from 1980.

The authority appealed and the higher court upheld the arguments advanced by the authority, and set aside the judge’s declaration. The authority argued that the proceedings were an abuse of process because there was no sufficient public-law aspect of Dhaban’s claim to warrant the application of section 4(d).

Dhaban’s estate appealed to the Privy Council and his case was argued by attorney Tom Poole. The authority was represented by Senior Counsel Elton Prescott and Christopher Sieuchand.

While dismissing the authority’s contention that Dhaban’s appeal was an abuse, the law lords held there was a sufficient constitutional aspect to the claim, since the authority was a public authority for the purpose of application of section 4(d), which is to establish whether there was a constitutional breach by a public authority.

However, in dismissing Dhaban’s claim, the law lords said while they found no difference in the treatment between the two port workers, as they were former employees who were re-employed as temporary workers, Dhaban could not rely on his co-worker as a suitable comparator because of the material difference in their employment grades.

” In the context of working for the Port Authority, the difference between employment as a permanent worker and employment as a temporary worker was very important,” the Privy Council judges said.