Equal Status Acts, 2000 to 2008
Equality Officer Decision
DEC-S2010- 021
Ms Mercy Olajide
-v-
Buck Properties Ltd
File Ref: ES/2008-004
Date of Issue: 13 April, 2010
Keywords: Equal Status Acts 2000-2008 - Section 3(2)(h), race ground - Section 3(2)(a), gender ground - prima facie case - discrimination -harassment - victimisation
Delegation under the Equal Status Acts, 2000 to 2008
This complaint was referred to the Director of the Equality Tribunal under the Equal Status Acts, 2000-2008. In accordance with her powers under Section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000-2008, the Director delegated the complaint to me, Elaine Cassidy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts, 2000-2008. On 7th October 2009, my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 17th February 2010.
1. Dispute
This dispute concerns a claim by the complainant, Ms Olajide that she was discriminated against, harassed and victimised by the respondent on the grounds of race and gender in terms of Sections 3(1)(a), 3(2)(a), 3(2)(h) 3(2)(j) and Section 11 of the Equal Status Acts, 2000-2008 in her dealings with her landlord, Buck Properties Ltd.
2. Summary of the Complainant's Case
2.1 In early 2006, the complainant took a 25- year lease of the respondent's property in Westcity centre in Galway. This lease was witnessed by a solicitor; however the complainant says that she was not advised by them. The property at that time had no electricity or water, the walls were not plastered, there was no suspended ceiling or floor and there was no toilet. The complainant took out a loan of 80,000 Euros to fit out the shop and to equip it. After it was fully equipped, Ms Olajide began trading in the shop. According to her evidence she was trading reasonably well; however it became apparent to her in early 2007 that the premises was too big. Therefore in order to continue her business, she decided to try to divide the unit in two and sublet the other half. She anticipated that this would reduce her rent sufficiently for her to continue trading.
2.2 Ms Olajide set about finding a prospective tenant and around July 2007 she was successful in finding an interested party. She made a verbal agreement with the interested party, which included an upfront payment. By this point she was in arrears with her rent, and it was intended that this upfront payment would cover the arrears. The weekly rent which the prospective tenant would pay, would offset her own rent and she would be able to continue trading. Ms Olajide introduced the tenant to the respondent and sought his permission to divide the premises. This was granted.
2.3 Shortly afterwards, Ms Olajide discovered that the respondent had made his own arrangement with her prospective tenant and that he was going to lease him a different unit in the centre. After losing her prospective tenant, Ms Olajide tried to sell her own lease, but she says that the landlord used his influence against her and blocked the sale through the auctioneers.
2.4 Ms Olajide was extremely upset by the action taken behind her back by the respondent and says that the loss of her prospective tenant and her lack of ability to sell the lease meant that she went a further three months into arrears with her rent. In October 2007 she was forced to surrender the lease and return the keys. Ms Olajide says that taking her prospective tenant and forcing her to surrender her lease amounts to discrimination under the Acts. She is seeking to recover her investment in the unit.
2.5 Ms Olajide claims she was victimised by the respondent because she is a black woman.
2.6 Ms Olajide claims that she was harassed throughout her time as a tenant:
- Firstly she claims that she was not given a copy of her contract until about a year after she signed it. This was in direct contrast to the other tenants, who received theirs within a normal timeframe.
- Secondly she says that the Mr Tuohy, Director of the respondent company, accused her of taking building materials when she first moved in. She believed that he said this because he did not trust black people. She clarified to him that she had not taken anything and she requested an apology in writing which she did not receive.
- Finally she claims that Mr Tuohy was verbally abusive towards her during the tenancy. He would come into her shop and hassle her about the rent in front of her customers. When she moved out he told her in a disparaging way to get rid of her stuff or else he would dump it. She understood this to mean that he was mocking her African stock. When he wanted the keys back, he hassled her continuously, including going to her husband's shop to put pressure on him.
In summary, Ms Olajide said that she had operated in the premises under fear of physical, mental and verbal attack from the respondent and as a result, her business, her health and her marriage had suffered. She submitted documents to the Tribunal to show proof of her financial situation and of her attendance at the hospital.
3. Summary of the Respondent's Case
Preliminary submissions:
3.1 The respondent claimed that Ms Olajide had not established a prima facie case and it was therefore not obliged to provide any evidence in order to rebut her case. The respondent therefore provided the minimum information during the oral hearing.
3.2 The respondent claimed that the only events which could be considered were those which occurred in the six months prior to the referral of the case to the Tribunal.
Substantive complaint:
3.3 On 20 January 2006, the complainant entered into a 25 year lease of a shell unit from Buck Properties Limited (hereafter BPL). This was a commercial lease and the complainant had the benefit of independent legal advice from a named firm of solicitors. The terms of the lease obliged the complainant to pay rent, services charges and insurance premia. However the complainant did not discharge her obligations and significant arrears of rent accumulated. Under the terms of the lease, the respondent landlord was entitled to deem the lease forfeit if the rent remained unpaid for 21 days or more. BPL did not do this, nor did they pursue the complainant for the arrears of rent and service charges which totalled approximately €30,000. They say that the complainant's business failed and she herself sought to surrender her interest in the property. Accordingly she returned the keys to them.
3.4 On the issue of the sublet, the complainant could not assign her interest without the prior consent of BPL. This consent was sought around April 2007; however as the complainant was in arrears, the consent was not granted. Additionally the proposed assignee preferred to negotiate directly with BPL regarding a different unit.
3.5 On the issue of victimisation, the respondent maintains that the complainant had surrendered her lease and ended her commercial relationship with BPL before making her complaint. Therefore her claim of victimisation is unstateable.
3.6 The respondent points out that the complainant's unit remained vacant until May 2008 and as a result of this and the unpaid rent, they have incurred substantial losses, which they have not sought to recover from the complainant.
3.7 The respondent denies all claims of harassment by Mr Tuohy. Mr Tuohy said that the complainant was always in arrears with her rent and he had to constantly follow up to get paid.
4. Conclusions of the Equality Officer
4.1 The Equality Officer must first consider whether the existence of a prima facie case has been established by the complainant. Section 38(A) of the Equal Status Acts, 2000 to 2008 sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
4.1 The respondent claimed that as the complainant had not established a prima facie case, they were not required to respond to the complaint during the oral hearing. However in the case Dyflen Publications Limited and Ivana Spasic (ADE/08/7), the Labour Court in adopting the approach of Mummery LJ in Madreassy v Numura International plc [2007] IRLR 246 stated that ".... the court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts, the court should consider any evidence adduced by the respondent..." This is well-settled law and I have therefore considered all the available evidence.
4.2 The respondent further contended that any events which happened prior to six months before the complaint was lodged, could not be introduced into evidence and therefore they would not respond to them. The Equal Status Acts however clearly allow for a chain of related events provided that notification and referral of the most recent occurrence are within the time limits.
4.3 Turning to the substantive issues, the complainant has said that she was discriminated against on the grounds of race and gender by the respondent's behaviour in relation to the proposed assignment and by the respondent's behaviour in forcing her to surrender her lease. I have considered the following points in deciding this issue:
- The complainant said that she had received consent for the sublet; however according to the documentation provided, the respondent had only agreed to consider her request. There was no evidence that they actually did consent. Furthermore according to the respondent's letter and the lease agreement itself, the complainant was only entitled to assign her interest in the event of all outstanding rent being paid (which it was not).
- The complainant was very upset about the respondent making a deal directly with her potential tenant. In oral evidence, the respondent Director claimed that the potential tenant had contacted him directly and independently of her. I do not find this credible; however I do accept that the respondent and the potential tenant were entitled to make their own deal. Although this was genuinely distressing for the complainant, I do not find evidence of racial or gender-based discrimination.
- The complainant has said that she had a viable business and that she wished to continue trading at her shop, but that she was forced by the respondent to surrender the keys. As late as October 2007, she says she had a plan to keep the business afloat, but the respondent would not co-operate. However the respondent pointed out in oral evidence that she had closed her shop and stopped trading in July 2007, without notice to the landlord and contrary to the conditions of her lease. Given that the complainant had invested a large sum of her own money in her shop, I do not doubt that the complainant genuinely wished to continue trading. However there was no evidence that she had any sort of realistic survival plan and therefore I find that the respondent was acting prudently to protect their interests, by seeking the surrender of the lease before further arrears accumulated. Therefore I do not find that they discriminated against her in relation to the lease surrender.
4.4 Regarding the claim of victimisation, I find that the complainant did not establish any facts to support this claim. She used the term "victimisation" in the colloquial sense rather than within the meaning of the Acts and there was no evidence adduced to show that she was less favourably treated after she raised the issue of discrimination or made the complaint to the Equality Tribunal.
4.5 On the claim of harassment, it is clear that the relationship between the parties deteriorated sharply during the last few months of the lease. The complainant says that the respondent was abusive towards her on the basis of her gender and race. The respondent denies this and claims that any issues between them were related to the unpaid rent and the proposed sublet.
4.5.1 Regarding the delay in issuing the contract the respondent did not remember this issue specifically, but did not accept that it was evidence of harassment. As the matter was handled by a firm of solicitors who did not know the complainant at all, I accept that this was not an attempt to harass her on the grounds of race or gender.
4.5.2 The complainant has also claimed that the respondent accused her in a letter of taking their building materials. She says that he later retracted the accusation, but refused to put it in writing. Although I accept that this did happen, I do not find that there was a link between the event and the complainant's race or gender.
4.5.3 The complainant says that the landlord told her to get rid of her stock or he would dump it, when he was getting her out of the building. The respondent denied this, but I found the complainant's version more credible. However I was not provided with enough specific details of this incident to accept that it was linked to her race.
4.5.4 On the issue of the verbal harassment about the rent, I do not accept the complainant's contention that this was on the grounds of race or gender. The complainant was in arrears with her rent at the time of the alleged harassment, so I find that the behaviour of the respondent was prompted by a desire to recover the monies owed.
5. Decision
5.1 On the basis of the foregoing, I find that the complainant has failed to establish a link between her treatment by the respondent and her grounds of race and gender. She has not established a prima facie case of discrimination, harassment or victimisation. On this basis I find in favour of the respondent.
Elaine Cassidy,
Equality Officer
13 April 2010