THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2011 - 205
PARTIES
Block, Tihhomirov, Skoromnov, Fjodorovs, Fjodorovs, Zakzenski & Laes
(represented by Richard Grogan and Associates, Solicitors)
and
Manor Stone Quarries Limited
(represented by Devitt, Doorley, MacNamara, Solicitors)
File References: EE/2009/435 - 440,
EE/2009/506 & EE/2009/584
Date of Issue: 3rd November 2011
Keywords
Employment Equality Acts 1998-2008 - Sections 6, 8, 14A and 74(2) - discriminatory treatment - conditions of employment - health & safety training and documentation - harassment - discriminatory dismissal - victimisatory dismissal - race.
1. Dispute
1.1 This concerns complaints filed by seven complainants, who claim that they were discriminated against by the respondents, Manor Stone Quarries Limited, on the grounds of race contrary to Section 6(2)(h) of the Employment Equality Acts, 1998 to 2008 in terms of discriminatory treatment. Mr. Laes claims that he was victimised by way of dismissal contrary to Section 74(2) of the Acts. Mr. Zakzenski claims that he was subjected to harassment contrary to Section 14A of the Acts.
2. Delegation of the complaint
2.1 The complainants referred their complaints under the Employment Equality Acts, 1998 to 2008 to the Director of the Equality Tribunal between the 29th June 2009 and 29th July 2009. In accordance with his powers under Section 75 of the Acts, the Director then delegated the case to me, James Kelly, an Equality Officer on the 5th May 2011, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. Accordingly, this is the date I commenced my investigation. A written submission was received from both the complainants and from the respondent. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to a hearing of the case on the 11th May 2011 and the final correspondence was received on the 21st July 2011.
3. Summary of the Complainants' case
3.1 Mr. Edmut Block is an Estonian National and he claims that he moved to Ireland in 2005 and was employed by the respondent to work in its stone quarry to operate a guillotine for cutting stone. He claims in his oral evidence that he was employed from October 2005 until he was made redundant in July 2009. He also claims that there was a break in his employment during that period and that he was only working half weeks from January 2009. He claims that he did not receive any proper contract of employment. He claims that he did not receive any proper health and safety documentation nor training. He claims that he did receive some documents and training in English, which he could not understand at all. He claims that there were non-Irish supervisors, including a Russian speaker, and that some of the employees working there had some English and helped with the translation. He claims that his rate of pay was altered on different dates without his consent and he was not advised prior to the changes. He claims that there were no Irish doing the same job as him. He claims that the Irish had easier jobs and did not have to work in the rain. He claims that the boss, Mr. A and the supervisor Mr. B, used bad language towards him but not to the Irish workers. Mr. Block claims that as part of the terms and the conditions of working for the respondent he was forced to live in the accommodation provided by the respondent. He claims that the house was old and in very poor condition and that €50 was taken from his wages each week to pay for the accommodation. He claims he was told that if he was working for the respondent he had to live in the house. At the hearing he claims that after he lodged his claim he was told that there was no further work for him. He said, to the best of his knowledge those who did not take a claim against the respondent were allowed to stay on to work.
3.2 Mr. Andrei Tihhomirov is an Estonian National and he claims that he moved to Ireland in August 2005 and was employed by the respondent to work in its stone quarry to operate a guillotine for cutting stone and placing it on pallets. He claims that he was employed from October 2005 until July 2009. He claims that he did not receive any proper contract of employment. He claims that he did not receive any proper health and safety documentation nor training. He claims that he did receive some documents and training in English but he could not understand any of it. He claims that his rate of pay was altered on a few occasions without his consent and he was not advised prior to the changes. Mr. Tihhomirov claims that as part of the terms and the conditions of working for the respondent he was forced to live in the accommodation provided by the respondent. He claims that the house was old and in very poor condition and that money was taken from his wages for the accommodation. He claims that he was told that Mr. A's dog was in charge if no one else was around to supervise the site. At the hearing he claims that after his solicitor lodged the claim against the respondent he was asked to drop the case if he wanted to keep his job. He was told in July 2009 that there was no further work for him.
3.3 Mr. Konstantin Skoromnov is an Estonian National and he claims he started employment with the respondent to work in its stone quarry to operate a guillotine for cutting stone. He claims that he was employed from July 2005 until July 2009. He claims that he did not receive any proper contract of employment. He claims that he did not receive any proper health and safety documentation nor training. He claims that he did receive some documents and training and he was aware that his colleagues also received training. He claims that he could not understand all of it. However, there was some help with translations from supervisors. He claims that his rate of pay was cut on different dates without his consent. He said he did not know if the Irish employee's wages were reduced. He claims that he asked for a meeting in relation to the reduction of his wages but he was bluntly told that if he did not like the pay he was free to leave. He claims that he started living in the respondent's accommodation but moved out when his girlfriend moved to Ireland and that he just left the accommodation. He claims that he had no issue with the Irish working there but they always seemed to have the best of equipment and clothing. He claims that the foreign workers were not so well off and he felt Mr. A was not friendly towards him and often used bad language to him. He claims that he was told that Mr. A's dog was in charge if no supervisors were around. At the hearing he said that after he lodged the case he was told to drop the case or he would be let go and would not get work around there ever again.
3.4 Mr. Andrejs Fjodorovs is a Latvian National who arrived in Ireland in 2006. He claims he stated work with the respondent in the summer of 2006 and finished on the 17th July 2009. He too was employed in its stone quarry to operate a guillotine for cutting stone. He claims that he did not receive any proper contract of employment, nor any proper health and safety documentation nor training. He claims that he did receive some documents and training and he was aware that his colleagues also received training. He claims that he could not understand any of it. He claims that his rate of pay was cut without his consent. He claims that he asked for a meeting in relation to the reduction to wages but he was told if he did not like the pay he was free to leave. He claims that he had to buy his own safety equipment as he only got one set of gear for the year. The Irish owner and supervisors were always using bad language to them. He said he did not have to live in the respondent's accommodation he could live where he wanted. At the hearing he claims that after he lodged the claims he was told to drop them or he would be let go. He believes that he was let go because he took the case against the respondent.
3.5 Mr. Aleksejs Fjodorovs is a Latvian National who arrived in Ireland in May 2006. He claims he started working with the respondent immediately, his brother had arranged the job for him. He claims that he finished on the 17th July 2009. He too was employed in its stone quarry to operate a guillotine for cutting stone. He claims that he did not receive any proper contract of employment, nor any proper health and safety documentation nor training. He claims that he did receive some documents and training and he was aware that his colleagues also received training. However, he claims that his English was poor and he could not understand it. He claims that he was told by a work mate from the boss that he had to come into work even when he was sick or he would be let go. He claims that the respondent was not nice to him, he often used bad language, whereas, he claims he never used such language to the Irish workers. He claims that his rate of pay was cut on different dates without his consent and was not advised prior to the changes. At the hearing he claims that after he lodged the claims he was told to drop them or he would be let go.
3.6 Mr. Jaroslaw Zakzenski is a Polish National who first came to Ireland in December 2005. He claims he started working with the respondent in January 2006 and he finished there on the 17th July 2009 after he lodged the claim. He too was employed in its stone quarry to operate a guillotine for cutting stone. He claims that he did not receive any proper contract of employment, nor any proper health and safety documentation nor training. He agreed he did get some basic training. He claims that he did receive some documents and training and he was aware that his colleagues also received some training. He said he spoke a little Russian and English but there was no one to help in his own language. He claims that he was paid in accordance with the number of pallets of stone worked on and that this rate of pay per pallet was reduced without his consent. He claims that the Irish were treated better than he was and he was often referred to by Mr. A as a "f....n immigrant" and a "Polish b.....d". He claims that he lived where he wished to live, that was never an issue while working there. At the hearing he claims that after he lodged the claim he was told to drop it or he would be let go.
3.7 Mr. Eduard Laes is an Estonian National who first came to Ireland in 2003 and started working with the respondent shortly after arriving here. He claims that he was effectively dismissed on the 17th July 2009 after he lodged a claim against the respondent. He too was employed in its stone quarry to operate a guillotine for cutting stone. He claims that there was no Irish doing the same job as he was. He did not receive any proper contract of employment, nor any proper health and safety documentation nor training. He claims that he did receive some documents that were lying in a box and that he was asked to sign something in 2009 but he did not understand it so he did not sign it, he claims that there were no translations provided. He claims that he did not receive any health and safety training. He claims that his rate of pay was increased after the first three years but reduced on different dates without his consent and he was not advised of the changes. He claims that he lived in the respondent's accommodation for the first two years but as his family moved to Ireland he moved out. He claims that the respondent's attitude towards foreign nationals was bad and he claims that he was let go because he lodged a claim against the respondent. He claims that he was told that he could continue to work if he withdrew the complaint.
3.8 In her legal submission the complainant's legal representative submitted that the respondent's failure to provide a contract of employment and health & safety training and documentation in their own language, or a language they could understand was in breach of the Acts. She claims that as the complainants were foreign nationals the respondent had a responsibility to take special measures to protect them. She said that following the Decision of the Tribunal in 58 Named Complainants -v- Goode Concrete Limited, that there is an obligation on an employer to provide employees with a written contract of employment and health & safety training documentation in a language which they can understand. It was the complainants' submission that the respondent's failure to provide this amounts to discrimination within the meaning of the Acts.
3.9 Also, in her legal submission post-hearing, the complainants' legal representative claims that I have inherent jurisdiction by virtue of Section 74(2) and Section 79 of the Acts to deal with victimisation as part of my investigation. She also claims that the decision in C-185-97 Coote -v- Granada Hospitality Ltd [1998] ECR 1/5199 is the authority for the proposition that the concept of victimisation should be construed as widely and liberally as possible.
4. Summary of the Respondent's case
4.1 Neither the respondent nor its legal representatives were in attendance on the day of the hearing. I note that a registered letter was sent to the respondent informing it of the hearing details. I am satisfied that they received notification of the hearing details. However, they offered no excuse for their non attendance.
4.2 The respondent furnished the Tribunal with a written submission in response to the claims lodged. Where it claims that;
It was severely affected by the Construction Industry decline, suffering substantial losses from 2008, which meant that it was forced to make decisions regarding its workforce.
The downturn meant that it had to drop its rate of pay at the time the complainants refer to, but from a very good rate. It provided good working conditions, initiated a Pension scheme, and employed multi-lingual supervisors to assist in the integration of all nationalities; it also offered accommodation at subsidised rates.
All outdoor employees received on-site health & safety training. The site was regularly visited by the Health & Safety Authority to ensure compliance.
It claims that health & safety documentation was available on site and the Safety Officer was on site to deal with any queries.
All employees received conditions of employment and notification of changes in terms and conditions. All queries were dealt with by the Office Manager and Payroll provider.
Site supervisors with a good command of English and the native language were employed to liaise between management and staff. They were invited to meetings to deal with issues relating to pay and conditions.
There were many meetings and discussions regarding pay cuts however, the alternative was that the company would close with the loss of (circa.) 80 jobs. The pay cuts were across the board, everyone was affected.
An entire shift of production staff were made redundant due to the downturn, which included supervisors, sales staff and clerical staff. They got their full statutory redundancy and holiday pay, etc.
It disputes the claims of discrimination and victimisation.
5. Conclusions of the Equality Officer
5.1 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him/her. If he/she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of "sufficient significance" before a prima facie case is established and the burden of proof shifts to the respondent. In deciding on these complaints, therefore, I must first consider whether the existence of a prima facie case has been established by the complainants. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent.
5.2 Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where "a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2).....". Section 6(2)(h) of the Acts defines the discriminatory ground of race as follows - "as between any 2 persons, ... that they are of different race, colour, nationality or national origins".
In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
5.3 Firstly, I must state that there are significant errors and differences from the actual evidence presented in the written statements as compared to the oral evidence adduced on the day of the hearing. In particular in relation to the complainants' personal details, such as the complainants' dates of birth, nationalities, reference to dates of employment and so on. I am satisfied that there was a distinct lack of care in the preparation of these claims and subsequent submissions. I might also state that I am satisfied that the respondent was notified of the hearing details and failed to present at the hearing to offer a rebuttal of the cases against it. However, following the hearing, it attempted to contact me by telephone whereby I informed the caller that I would not discuss the case and terminated the telephone call accordingly, immediately.
Conditions of employment
5.4 The complainants have submitted that the Decision of this Tribunal in 58 Named Complainants -v- Goode Concrete Limited places an obligation on an employer to furnish non-Irish employees with a contract of employment and health & safety documentation in a language which they understand. I am of the view that this is an incorrect interpretation of that Decision. In that case the Equality Officer found that in circumstances where an employer furnishes its employees with contracts of employment and/or health and safety statements it constitutes less favourable treatment of non-Irish employees if the respondent provides them with a contract of employment in English and not in a language which they can understand. I note that the Equality Officer went on to make an order to "put in place clear procedures for ensuring that non-national employees are clear as to their terms and conditions of employment and also understand all safety documentation" rather than specifying that the contract of employment and/or health and safety statement should be provided in those employees native language, or any other language for that matter. Therefore, the clear principle in the Goode Concrete case was to place the onus on the respondent to make reasonable efforts to ensure that the relevant employees understood their rights and that it ensured that they were not treated less favourably than someone else.
5.5 In considering this issue, I have also taken cognisance of the recent determination of the Labour Court whilst examining the circumstances in which the probative burden of proof operates held as follows:-
"Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.
In this case it was submitted that the Complainant was treated badly by the Respondent and the Court was invited to infer that he was so treated because of his race. Such an inference could only be drawn if there was evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence."
5.6 I will now consider the issues that have been raised by the complainants in relation to the respondent's alleged failure to provide them with a written contract of employment and health & safety training and documentation which they contend constitutes unlawful discrimination of them on the grounds of race contrary to the Acts. It was submitted that the Tribunal should infer that they had been subjected to less favourable treatment on the grounds of their race and, accordingly, that the burden of proof should shift to the respondent to rebut the inference of discrimination.
5.7 In the present case, the respondent claims that it provided the complainants with contracts of employment, health & safety documentation and training for the job. I note the evidence of the complainants where some state that they were asked to sign documents but were not sure what they were and that they did get some on the job training. There was no evidence to suggest that the other employees working for the respondent were given any additional documentation or training over and above what they were given. There is evidence from the complainants that there were supervisors of different nationalities with different language skills. Some of the complainants claim they got help with translations. This is in line with the respondent's written submission where it states that multi-lingual supervisors were employed to assist in the integration of all nationalities. Therefore having studied the evidence and in consideration of the Labour Court decision in Melbury I am satisfied that I have not been presented with any evidence to support the complainants' contention that they were treated any differently not to mind less favourably than any of their fellow workers in relation to this aspect of the complaint. I am satisfied that the complainants were treated the same as all the other employees. I am satisfied they had an opportunity to raise issues with the supervisors, to assist them if/when required. Therefore, I am satisfied that the complainants have not adduced any evidence from which I could reasonably conclude that they were treated less favourably than their fellow workers. Accordingly, I find that the complainants have failed to establish a prima facie case of discrimination in relation to this element of the complaint.
5.8 In relation to the claim that the respondent reduced the complainants' pay, I note and accept that the complainants have adduced evidence to suggest that their pay was reduced and this has been accepted by the respondent in its submissions to the Tribunal. However, I am satisfied that I do not have any jurisdiction to decide whether or not the respondent was in breach of its obligations under the relevant employment legislation in relation to the complainants pay. I note that these are not Equal Pay cases but rather relate to discriminatory treatment regarding the conditions of employment under Section 8 of the Acts. Section 8(6) specifically states:
"Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one --
(a) the same terms of employment (other than remuneration and pension rights),"
[my emphasis added]
I note that there are a number of decisions from this Tribunal in relation to this issue. I note the Equality Tribunals decision in DEC-E2010-173 where the Equality Officer states,
"It ought to be noted that a claim for discriminatory treatment cannot rest on a mere claim concerning remuneration (equal pay claim). Section 8(6) clearly excludes remuneration and pension rights from conditions of employment but includes same terms of employment, same working conditions, overtime, shift work, short time, lay-offs, redundancies, dismissals and disciplinary procedures. While I note that the respondent stated that he paid the Lithuanian nationals less than what a REA would have stipulated; he submitted it was because they did not have their own tools nor transport. These facts, in relevant circumstances, may give rise to a claim for equal pay. However, it is clear that in the circumstances where the respondent was not notified of such claims I have no jurisdiction to investigate claims for equal pay. The complainants have not shown any evidence of less favourable treatment in relation to conditions protected in the Acts. Furthermore, I note that the complainants' representative argued that by comparing these conditions with a notional comparator (the respondent only employed non-nationals), the complainants' conditions of employment were discriminatory in that they missed out on all the benefits that come with a REA. REA claims, in themselves, are not matters within this Tribunal's jurisdiction. The complainants provided this Tribunal with no evidence to support an argument - which was based on the complainants' race - supporting an argument for less favourable treatment."
Accordingly, I am satisfied that Section 8(6) clearly excludes remuneration and pension rights from a claim of alleged discriminatory treatment on the conditions of employment, as is the case before me for consideration, and I have no jurisdiction to consider this matter any further.
5.9 In relation to the other aspects of the complainants' claim that they were treated less favourably than the Irish employees. In particular where some complainants claim they had to live in certain accommodation as part of the working arrangement; I note others moved out and still kept their jobs; whereas other complainants could live where they wished. I note the points where they claim that they had to work in the rain and others had "better working conditions than they had". I note that the evidence is very much inconsistent here. It is the evidence that some of the complainants claimed that there were no Irish workers doing the same job as they were, whereas others claim that the Irish employees were supervisors and had different roles with the respondent. I am not satisfied that everyone employed at the quarry was employed to do the same role, and that different roles would have different skills and conditions associated to it. I am satisfied that the complainants had different roles to unnamed/unidentified Irish employees who the complainants claim had "easier jobs" and "better working arrangements" than the complainants. Accordingly, I am satisfied that the complainants have not adduced any evidence from which I could reasonably conclude that they were treated less favourably than their fellow workers in this aspect of their case. Therefore, I find that the complainants have failed to establish a prima facie case of discrimination in relation to this element of the complaint.
5.10 Having regard to the determination of the Labour Court in the Melbury case, I am satisfied that unfavourable treatment, in the absence of evidence of less favourable treatment, is insufficient to establish a prima facie case of discrimination under the Employment Equality Acts. Accordingly, the complainants must firstly be able to demonstrate some significant evidence of less favourable treatment and this treatment must be linked to their race in order to raise an inference of discrimination. Accordingly, I find that the complainants have failed to present evidence for them to establish a prima facie case of discrimination on the grounds of their race.
Victimisatory Dismissal - Mr. Laes
5.11 Section 74 (2) of the Acts states:
".....victimisation occurs where dismissal or other adverse treatment of an employee by is or her employer occurs as a reaction to -
(a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings [under this Act] by a complainant, ......."
In relation to Mr. Laes case, I note that he claims that the respondent approached him and asked him to withdraw the case before the Equality Tribunal and warned him that he was in danger of losing his job and that the consequences for him, an older man, would be that he would not find work around there again. I note Mr. Laes's evidence where he said he was told that he would be allowed to remain in work if he dropped the case. I note that he finished work with the respondent on the 17th July 2009 and subsequently filed a complaint of Victimisation with the Equality Tribunal on the 29th July 2009 accordingly. I am satisfied that this evidence raises an inference of discrimination and therefore Mr. Laes has established a prima facie case under Section 74(2).
5.12 I note in the respondent's submission it claims that an entire shift of production staff were let go for economic reasons, which presumably included Mr. Laes. However, the respondent was not present at the hearing and therefore did not give an account for how Mr. Laes was selected for redundancy over others at the time. Therefore the respondent has failed to rebut the claim that he was dismissed because he had lodged a complaint against the respondent.
5.13 The Equality Tribunal has always considered victimisation and victimisatory dismissal as matters of great seriousness and has consistently reflected this in past decisions, most notably in Decision reference, DEC-E2002-017, A Complainant v A Department Store, where the Equality Officer stated,
"victimisation is a matter that must be taken extremely seriously. To allow victimisation of complainants for making complaints under the act would be to subvert the legislation. The purpose of section 74 is to protect those who consider they have been victims of discrimination. If this protection is not supported in the Equality Officer decisions, the legislation will be ineffective and the rights of the individual involved will be compromised."
Accordingly, based on the evidence adduced I find that Mr. Laes has raised an inference of victimisation following his dismissal from the workforce by the respondent after he lodged his complaint. The respondent has failed to attend the hearing to rebut the allegation.
Victimisatory Dismissal - the remaining complainants
5.14 At the hearing the other complainants gave evidence that the respondent told them that they were being let go and the complainants claim that this decision was made as a consequence of the respondent being notified of their complaints under the Employment Equality Acts. I advised the parties after the hearing that as part of my investigation the complainants had opened questions surrounding the possibility for me to consider a claim of victimisatory dismissal under Section 74(2) of the Acts. This aspect of the complainants' case was not previously before the Tribunal to consider or before the respondent to rebut prior to the day of the hearing. Following the hearing I invited both parties to furnish written submissions on this matter. I received submissions from both parties which were copied and exchanged to the other side to examine and further comment on.
5.15 I note the decision in the High Court case of County Louth VEC -v- The Equality Tribunal and Pearse Brannigan where McGovern J. held that "I accept the submission on behalf of the respondent that the Form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then a fortiori, it should be possible to amend a claim as set out in a form such the EE1, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same". In the present case, the complainants referred their complaints to the Tribunal in which they claimed discriminatory treatment on the grounds of race in terms of conditions of employment i.e. they set out in broad terms the general nature of the alleged discrimination. Having regard to the judgement in the County Louth VEC case, I am satisfied that the complainants are not precluded from amending the particulars of their claim so long as the general nature of the complaint remains the same.
5.16 I am satisfied that the complainants were legally represented and therefore were legally advised at all stages in this process. I have considered the decision Coote -v- Granada Hospitality Ltd as per the complainants' legal representative submission. However, having considered that decision carefully I do not see anywhere in that decision to allow me to now consider a claim of victimisation when it did not form part of the original complaints. I note that Mr. Laes lodged a complaint of victimisatory dismissal with the Tribunal when he ceased employment with the respondent within the prescribed time limits set out under the Acts; however the remaining complainants have not. I have reviewed the original EE1 form and submissions filed by the other named complainants and I am satisfied that there are no references to or suggestions of victimisation or victimisatory dismissal in any of the documents before the Tribunal prior to the hearing date. I am satisfied that the claim of victimisatory dismissal for all the other named complainants was only raised at the oral hearing. Accordingly, I am satisfied the introduction of such a matter is an extension of the complaints which broadens the scope of the cases beyond the general nature of the complaints before me for consideration. Accordingly, I am satisfied that I do not have jurisdiction to consider this new aspect of the case as it was only introduced at the hearing, over two years after the complaints were referred and is clearly out of time and consequently I do not have jurisdiction to investigate it further.
Harassment - Mr. Zakzenski
5.17 Mr. Zakzenski claims that he was subjected to harassment by the respondent on the grounds of race contrary to the Acts. "Harassment" is defined in Section 14A(7)(a) of the Acts as "any form of conduct related to any of the discriminatory grounds being conduct which ... has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person". Section 14A(7)(b) further states that "such conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material". Section 14A(2) of the Acts states that it shall be a defence for an employer to prove that "the employer took such steps as are reasonably practicable ... to prevent the person from harassing the victim or any class of persons including the victim". In the case law that has developed on harassment, this is understood to include the development and implementation of a policy on dignity at work, bullying and harassment, and its implementation in accordance with the principles of natural justice and fair procedures.
5.18 Mr. Zakzenski gave evidence that he was harassed by the respondent on the basis that he was subjected to unacceptable race related insults and remarks by Mr. A. Examples of which were noted above in paragraph 3.6. Accordingly, I note Mr. Zakzenski's evidence has raised an inference of harassment on the race ground. As the respondent has not offered a rebuttal of such a claim in its written submission and was not present at the hearing to rebut the allegation, I am satisfied that I find in favour of Mr. Zakzenski in this matter. Accordingly, I find that the complainant has established a prima facie case of harassment on the grounds of his race.
Harassment - the remaining complainants
5.19 In relation to the claims of harassment by the other complainants, which were raised at the oral hearing, I note that with the exception of Mr. Zakzenski there were no indications of harassment in either the original referral forms or the submissions received on behalf of the complainants prior to the oral hearing. Nevertheless having carefully listened to all the complainants I am satisfied that no evidence of harassment was presented to me by the complainants on the basis of their nationality or race. The incidents cited by the complainants are in no way linked to the ground they claim that they have been discriminated and harassed. Therefore, having regard to the evidence adduced I am not satisfied that the other complainants have adduced any evidence from which I could reasonably conclude that any of the incidences cited by the complainants were in any way attributable to their nationality or race. Accordingly, I find that the complainants have failed to establish a prima facie case of harassment on the grounds of their race.
6. Decision
6.1 Having investigated the above complaints, I hereby make the following decision in accordance with Section 79(6) of the Employment Equality Acts, 1998 to 2008. I find that:
the respondent did not discriminate against the complainants, on the race ground pursuant to Section 6(2) of the Acts in terms of their conditions of employment and training contrary to Section 8(1) of the Acts;
the respondent did not harass Mr. Edmut Block, Mr. Andrei Tihhomirov, Mr. Konstantin Skoromnov, Mr. Andrejs Fjodorovs, Mr. Aleksejs Fjodorovs, or Mr. Eduard Laes contrary to Section 14A of the Acts;
the respondent discriminated against Mr. Jaroslaw Zakzenski in relation to his conditions of employment contrary to Section 8(1) of the Acts by not taking reasonable and practicable steps to prevent his harassment on the ground of his race contrary to Section 14A(7) of the Acts;
the respondent victimisatorily dismissed Mr. Eduard Laes contrary to Section 74(2) of the Acts.
In accordance with Section 82 of the Employment Equality Acts, 1998 to 2008, I therefore order that the respondent:
pay Mr. Jaroslaw Zakzenski the sum of €5,000 in compensation for the effects of the harassment.
pay Mr. Eduard Laes the sum of €10,000 in compensation for the effects of his victimisatory dismissal.
These awards are in compensation for the distress experienced by the complainants in relation to the above matters and are not in the nature of pay, and therefore not subject to tax.
______________
James Kelly
Equality Officer
3rd November 2011