EDA149

This is an appeal by Mr. Andrei Tihhomirov, Mr. Aleksejs Fjodorovs, Mr. Konstantin Skoromnov, Mr. Andrejs Fjodorovs and Mr. Edmut Block (the Complainants) against Equality Officer Decision No DEC-E2011-205 issued on 3/11/2011. The appeal was lodged with the Labour Court on 5/12/11. The case came on for hearing on 29/11/2013. Mr. Andrei Tihhomirov, Mr. Aleksejs Fjodorovs, Mr. Edmut Block and Mr. Andrejs Fjodorovs did not attend Court and were not represented. As they presented no evidence of discrimination within the meaning of the Act to the Court the appeals in those cases were struck out.

Mr Konstantin Skoromnov, attended the hearing and made submissions to the Court. The Respondent, Manor Stone Quarries Ltd was represented at the hearing by Mr Tom Hennessey Managing Director.

Complaint

Konstantin Skoromnov asserted that he was discriminated against by the Respondents on the grounds of race contrary to Section 6(2)(h) of the Employment Equality Acts, 1998 to 2008 in terms of discriminatory treatment. The Equality Officer decided that the complaint was not well founded. Mr Skoromnov appealed against that Decision to this Court.

Background

Konstantin Skoromnov is an Estonian National. He moved to Ireland in 2005 and was employed by the Respondent to work in it's stone quarry to operate a guillotine for cutting stone. He was employed from October 2005 until he was made redundant in July 2009.

Complainant’s Position

The Complainant states that:-

• 
  •The Respondent did not provide him with a contract of employment.
  

  •The Respondent did not provide him with proper or adequate health and safety documentation or training relating to the work he was employed to undertake.

  •Irish Workers were employed on “easier jobs”;

  •Irish Workers were not required to work in the rain which he was required to do as a matter of routine.

  •His Manager Mr. A and the Supervisor Mr. B, used bad and abusive language towards him but did not so abuse Irish Workers.

The Respondent denies that it discriminated against the Complainant in the manner complained of or at all. It submits that all outdoor employees received on-site health & safety training. It submits that the site was regularly visited by the Health & Safety Authority to ensure compliance with health and safety standards. It claims that health & safety documentation was available on site and the Safety Officer was on site to deal with any queries. The Respondent states that the Complainant was supplied with all safety equipment needed to discharge his duties in the quarry.

It submits that all employees received copies of their Conditions of Employment and notification of changes to their terms and conditions. It states that all queries were dealt with by the Office Manager and Payroll provider. It submits that site Supervisors, with a good command of English and the native languages of staff were employed to liaise between Management and staff. They attended all meetings relating to pay and conditions of employment and provided translations where necessary.

It denied that the Complainant was required to work in the rain. It stated that the Complainant operated a guillotine. Stone from the quarry was loaded onto conveyors by large scale plant and equipment and delivered to the Complainant for cutting. All guillotines were located undercover and there was no need for the Complainant to leave the covered area to acquire stone for cutting. It was invariably delivered to him by conveyor as it was not capable of being moved manually. Accordingly the Complainant was not required to work in the rain or outside the cutting area.

The Respondent denied that he at any time abused the Complainant or spoke abusively to him. He stated that it was never brought to his attention that any member of Management spoke abusively to the Complainant.

He states that no distinction was made between Irish and Foreign Workers.

The Law

Burden of Proof

Section 85(a) of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It states:-

(1)Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary.

(2)ThisSectionis without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to the person.

Discrimination

Section 6(1) of the Employment Equality Acts, 1998 to 2008 defines discrimination in the following terms

• (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where:-
  • (a) 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) (in this Act referred to as the “discriminatory grounds”) which—
    • • (i) exists,

        (ii) existed but no longer exists,

        (iii) may exist in the future, or

        (iv) is imputed to the person concerned.

Section 6(2)(h) of the Acts defines the discriminatory ground of race as follows:–

• (2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act ) are—
  • • (h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

Section 77 of the Act deals with the making of complaints under the Act. In relevant part it states:-

• • (a) Subject to paragraph (b) , a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

    (b) On application by a Complainant the Director or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the Complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and where such a direction is given, this Part shall have effect accordingly.

In the Court's engagement with the parties it emerged that the Complainant was aware that health and safety equipment was available to him but he chose not to use it

The Complainant did not identify any person that received a written contract of employment.

Other than by way of general assertion the Complainant identified no dates on which he was required to work in the rain. Nor did he identify any person of a different nationality employed to do the same or similar work as him who was not required to work in the rain.

The Complainant acknowledged that the cutting machine he operated was located under cover and that the stone he worked on was delivered to him by way of conveyor belt as it was too heavy to be moved manually. He acknowledged that all staff members operating stone cutting machines were located adjacent to each other undercover.

The Complainant was not in a position to identify dates or times on which he was allegedly spoken to in the abusive manner he outlined. He asserted that it was reflective of the general manner in which he was treated. In the course of the hearing he indicated that the conversation took place several years before the Complaint was submitted to the Equality Tribunal.

The Court finds that the Complainant has made assertions that cannot be elevated to the level of facts from which an inference of discrimination may arise. He has failed to identify an act of discrimination that occurred within six months of the date on which he presented his complaints to the Equality Tribunal. He has failed to identify another person of a different nationality undertaking the same or similar work as him who was treated more favourably with regard to their terms and conditions of employment than he was.

In those circumstances the Court determines that the complaints are not well founded. The appeal is not allowed.

Determination

The appeals in respect of Mr. Andrei Tihhomirov, Mr. Aleksejs Fjodorovs, Mr. Andrejs Fjodorovs and Mr. Edmut Block were not proceeded with and are struck out.

The appeal by Mr. Konstantin Skoromnov, is not well founded. The Decision of the Equality Officer is affirmed. The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
19th February, 2014______________________
JFDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.