EQUAL STATUS ACTS
DECISION NO. DEC-S2017-009
PARTIES
Anastasia Steshenko
(Represented by Migrant.ie)
-v-
Lloyd Daly & Associates
Frank Kelly
(Represented by P.J Walsh & Co. Solicitors)
File reference: et-157630-es-15
Date of issue: 21 February, 2017
1. Background to the Claim
1.1 The complainant referred a complaint to the Director of the Equality Tribunal under the Equal Status Acts, 2000 to 2011 on the 4 September, 2015. On 9 November 2016, in accordance with his powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000 the Director General delegated the case to me, Valerie Murtagh, an Equality Officer/Adjudication Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act, 2000 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the on the 5 December, 2016.
1.2 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 84(3) of the Workplace Relations Act, 2015.
2. Dispute
2.1 The dispute concerns a claim by the complainant that she was discriminated against by the above named respondents on the gender, family status and race grounds in terms of Section 3 and contrary to Section 5 of the Equal Status Acts in relation to access to a service.
3. Summary of the Complainant's Case
3.1 The complainant who is a Russian national states that in April 2015, her husband met with an employee of LD in order to find a new house for their family to move to because their then landlord needed his house back to live in himself. When he met the employee of LD he paid a deposit on the property they were interested in even though they hadn’t an opportunity to view it. The complainant states that the employee informed her husband that in order to secure the property, he needed to pay the deposit immediately. An appointment was then arranged to view the house a number of weeks later. The complainant stated that they were informed that the house would be ready for them to move into on 6 May 2015. The complainant submits that two weeks later, her husband went to view the house and the staff member at LD warned him not to mention to the landlord that he had already paid a deposit. The complainant states that the house was in a terrible state with radiators off the walls, broken doors and the house and garden destroyed. The complainant submits that the landlord had told her husband that all would be fixed before the scheduled move in date of 6 May, 2015.
3.2 The complainant states that on Monday 4 May, she saw the landlord was in the property and she walked around to clarify when she could get the keys. She states that they spoke briefly and she was advised that there was a huge amount of work still to be done on the house and it would not be ready for two weeks. The complainant advised him that she has a small child and that they needed to leave their former house by 8 May at the latest or they would be homeless. The complainant submits that the landlord told her he was working on the radiators and requested her to return the following evening at 7 pm to meet him to discuss the move in date. The complainant states that she returned on the following evening but there was no one inside the house. The complainant states that on the evening of 6 May, she again went to the house and knocked on the door. She states that the landlord was inside on the telephone but refused to answer the door. The complainant submits that after half an hour waiting outside, the landlord came out and told her he had rented the house to someone else. The complainant states that she informed the landlord that her husband had secured the house by paying a deposit three weeks previously but he replied that it was LD’s fault and no one else is to blame.
3.3 The complainant submits that she was in deep shock and distress. The complainant made contact with Migrant.ie (Immigration Advocacy Service) who wrote on her behalf to LD seeking an urgent response, however no response was forthcoming. The complainant submits that on 2 June 2015, the house was again re-listed and advertised as being available to rent. The complainant maintains that the landlord lied about renting the house to another tenant and did so because of her nationality or due to the fact she had a small child. The complainant submits that her family ended up being forcibly evicted from their existing home and she outlined the difficulties the family found themselves in due to the actions of the respondent. The complainant further states that LD had several other rental properties available at the time and despite being aware that they were about to become homeless, they refused to assist them find any alternative accommodation and refused to acknowledge any communications from them or on their behalf. In conclusion, the complainant is alleging that the above respondents discriminated against her on grounds of gender, family status and race contrary to the Equal Status Acts.
4. Summary of the Respondent's Case.
4.1 The legal representative for Mr. Frank Kelly who’s son Cillian was the landlord who owned the property in question submits that the complainant visited the property of Mr. Kelly unannounced, late in the evening on 6 May 2015. The landlord maintains that his property was undergoing renovations at the time in question in preparation of letting the premises to a new tenant. It is submitted that the complainant approached the landlord whilst he was working on the radiator in the front hall of the property. The landlord’s representative submits that he explained that the property would not be ready in time for the applicant’s intended possession date as the date had not been agreed with him. The landlord’s representative states that he advised the complainant that he would liaise with the letting agent in this regard. The landlord maintains that he informed the complainant that coming to his house so late in the evening was not the norm and that the complainant should contact the letting agent directly to arrange a viewing of the property. The landlord’s representative contends that no contract was ever entered into between him and the complainant. The representative submits that there was no discrimination in that decision on race, family or gender grounds and the decision was made on the basis that the house required further renovations and was not ready for occupation. The representative for the landlord submits that he was not notified of the complainant’s claim until 25 November 2016. He refutes the allegations of gender, family status and race discrimination in their entirety and submits that the previous occupants were non-national families as are the current tenants.
4.2 LD submits that it is in business 22 years. It states that last year it rented out 66 houses, 48 of those properties were let to non-Irish nationals. It contends that it did initially take a deposit from the complainant’s husband but that it appears that given the persistent nature of the complainant calling up to the house in question unannounced and making demands regarding alterations to the property and demanding a move-in date, the landlord was not in a position to rent to the complainant on that basis and in any event the property was not ready for occupation due to the substantial works to be completed on same. LD states that the deposit was refunded to the complainant’s husband subsequently. It was submitted that there is no discrimination on the basis of gender, family status or race. LD stated that the previous occupants were a Romanian couple with two girls and the current occupants are of Indian nationality with three children. LD states that there was issues of miscommunication and misunderstandings but refutes the allegations of discrimination on grounds of gender, family status and race grounds.
5. Conclusions of the Equality Officer
5.1 The Equality Officer/Adjudication Officer must first consider whether the existence of a prima facie case has been established by the Complainant. Section 38A of the Equal Status 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 upon which he can rely in asserting that prohibited conduct has occurred in relation to him. 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. In making my decision, I have taken into account all of the evidence, both written and oral, made to me by the parties to the case.
5.2 Having examined all the evidence in relation to the instant case, I find that there was miscommunication and misunderstandings in relation to the date that the specific property was to be ready for. I understand the position of the complainant in that given her circumstances she was in need of another property as a matter of priority as she had to vacate her previous house because the landlord was returning to live in it. However, having adduced all the evidence on the matter, I am satisfied that the complainant has not demonstrated a prima case that she was discriminated against on grounds of gender, family status or race grounds as there was no evidence put forward to substantiate such a claim. I note that the previous tenants were a Romanian family with two children and the current occupants are of Indian nationality with three children. I am satisfied from the evidence adduced that there was a misunderstanding in relation to the specific date the property was to be ready for letting and therefore perhaps a breakdown of communication between the landlord and LD. I do note also that the complainant came around to the house unannounced on a number of occasions demanding a move-in date and some minor works to be carried out on the property but ultimately I am satisfied that the property was not ready for occupation on the date required by the complainant. Having carefully considered all the facts in the instant case, I can find no evidence of discriminatory treatment of the complainant on grounds of gender, race or family status and therefore the complainant’s case fails.
6. Decision
6.1 Inreaching my decision, I have taken into account all the submissions, written and oral that were made to me. In accordance with section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision.
6.2 I find that the complainant has failed to establish a prima facie case of discrimination on the grounds of gender, family status or race under the Equal Status Acts.
_________________
Valerie Murtagh
Equality Officer/Adjudication Officer
21 February, 2017