Communication No. 949/2000*
Submitted by: Mr. Ameer Keshavjee
Alleged victim: The
State party: Canada
Date of communication:
4 June 1996 (initial submission)
The Human Rights Committee, established under article 28 of the International
Covenant on Civil and Political Rights,
Meeting on 2 November
Adopts the following:
Decision on admissibility
1 The author of the communication is Ameer Keshavjee, a Canadian national,
born 4 October 1938. He claims to be a victim of a violation by Canada of
Articles 14, 25(c) and 26 of the International Covenant on Civil and Political
The facts as presented
2.1 The author was employed
by Revenue Canada from 19 September 1989 as a Collection Contact Officer
after successfully passing the relevant examinations. The appointment
was probationary to 9 April 1990. On 15 March 1990, the author passed
a further examination and was offered an appointment as Collection Enforcement
Officer to commence 9 April 1990 for a 12 month probationary period. On
31 July 1990 the author received written advice from the Collection Group
Supervisor that five test checks of the author's work between November
1989 and July 1990 had shown unsatisfactory performance. These tests were
conducted on 8 November 1989, 10 January 1990, 5 March 1990, 22 June 1990
and 10 July 1990.
2.2 On 31 July 1990, the author
was given 90 days to correct these deficiencies or have the probationary
appointment terminated. He was also advised that three test checks would
be performed during that 90 day period. He contends that this was the
first notice he had received that his performance was less than acceptable.
He also alleges that the whole Unit's production had been down but no
other employee had received such a letter. On 29 August 1990, the author
was advised that, due to unsatisfactory performance, the usually payable
pay increment commencing 19 September 1990 would be denied. This withholding
appears to be a standard procedure in cases where management determines
that an employee is not performing at an acceptable level. On 28 November
1990, the author's probationary appointment was terminated.
2.3 With the assistance and
advice of the Union of Tax Employees, the author challenged the failure
to provide the pay increment and the termination of appointment through
four levels of internal complaint procedures (details unspecified). That
process concluded on 22 January 1992 with advice of the final level hearing.
The pay increment was restored at the third level hearing, but the termination
was not reversed at any point.
2.4 In October 1991, the author
complained to the Canadian Human Rights Commission alleging that he was
discriminated against on the basis of his race, colour and national or
ethnic origin (East Indian) in the termination of his employment. The
Commission, after full investigation, found that the author's performance
had not improved as advised, and that other collection officers were treated
in the same way as the author. It concluded in August 1992 that the complaint
was unfounded. The author made a further approach to the Commission to
review its decision, which was also denied.
2.5 In November 1992, the
author complained to the Public Service Commission of Canada in respect
of his case. That complaint was dismissed in December 1992. The author
has made a variety of further attempts to secure redress through the Prime
Minister, the Minister of National Revenue and Members of Parliament.
He has not proceeded with any further Court action, for instance in the
Federal Court of Canada. He contends that such recourse would be pointless,
as the Federal Court's review of decisions of the Human Rights Commission
is confined to matters of jurisdiction and procedural fairness.
3.1 The author raises two
main complaints. The first complaint is against the Union of Taxation
Employees, representing the author in the internal grievance proceedings.
He alleges that the union failed to explain the proper appeal procedures
applicable to his case, and that the union had against his wishes excluded
him from certain hearings. He also alleges that members of the Union arranged
for his dismissal.
3.2 The essence of the author's
main complaint relates to his allegation of discrimination in the termination
of his employment. The author claims that he had recently passed higher
level examinations and points out that the pay increment initially denied
was later awarded. He charges that his dismissal was based upon racial
discrimination. To support this claim he argues that his supervisors,
the union officials representing him and the adjudicators were Caucasian
and that the internal grievance procedures were unfair, as persons who
had exercised management functions were also members of grievance panels.
The author contends that that the above constitutes violations of article
14, 25, paragraph (c), and 26 of the Covenant.
Issues and proceedings
before the Committee
4.1 Before considering any
claim contained in a communication, the Human Rights Committee must, in
accordance with rule 87 of its rules of procedure, decide whether or not
it is admissible under the Optional Protocol to the Covenant.
4.2 In terms of the allegations
directed against the conduct of the Union, the Committee observes that
the allegations are directed against private parties. In the absence of
any argument on which the State party might be held responsible for the
actions of these individuals, this part of the communication is inadmissible
ratione personae under Article 1 of the Optional Protocol.
4.3 In terms of the author's
allegations of discrimination, the Committee recalls that, according to
its constant jurisprudence, it is not for the Committee, but for the competent
authorities of the State party to evaluate facts and evidence. The Committee
does not interfere in such an evaluation unless it was manifestly arbitrary
or amounted to a denial of justice. In the instant case, the Committee
notes that the author's allegations were examined on their merits by the
Canadian Human Rights Commission, which found that the author's employment
had been terminated not on any discriminatory ground, but for failure
to improve unsatisfactory performance. Moreover, it found that other tax
collection officials had been treated in the same manner. The author has
failed to substantiate, for the purposes of admissibility, that these
findings were either manifestly arbitrary or amounted to a denial of justice.
In the light of this finding of the Human Rights Commission, the Committee
is of the view that the author has failed to substantiate, for the purposes
of admissibility, that his dismissal involved violations of his rights
under articles 14, 25, paragraph (c), and 26 of the Covenant. This part
of the communication is therefore inadmissible under article 2 of the
5 The Committee therefore
(a) that the communication
is inadmissible under articles 1 and 2 of the Optional Protocol;
(b) that this decision shall
be communicated to the author and, for information, to the State party.
* The following members of
the Committee participated in the examination of the present communication:
Mr. Abdelfattah Amor, Mr. Prafullachandra Natwarlal Bhagwati, Lord Colville,
Ms. Elizabeth Evatt, Ms. Pilar Gaitan de Pombo, Mr. Louis Henkin, Mr.
Eckart Klein, Mr. David Kretzmer, Mr. Rajsoomer Lallah, Ms. Cecilia Medina
Quiroga, Mr. Martin Scheinin, Mr. Hipólito Solari Yrigoyen and Mr. Roman
Wieruszewski. Under rule 85 of the Committee's rules of procedure, Mr.
Maxwell Yalden did not participate in the examination of the case.
[Adopted in English, French
and Spanish, the English text being the original version. Subsequently
to be translated into Arabic, Chinese and Russian as part of the Committee's
Annual Report to the General Assembly.]