ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00006661
Parties:
| Complainant | Respondent |
Parties | An Accommodation Seeker | An Estate Agent |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00010169-001 | 11/03/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00007155-001 | 22/09/2016 |
Date of Adjudication Hearing: 06/09/2017
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 25 of the Equal Status Act, 2000 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
1: Summary of Complainant’s Case: Complaint No 1
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Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00007155-001 | 22/09/2016 |
On the 11th February 2016 a property was advertised on a website (In this case called Website X) by the Respondent Estate Agency in South Leinster. The Advertisement stated that “Rent Allowance not Accepted.”
This advertisement was clearly contrary to Section 3 B of the Equal Status Acts.
The Complainant contacted the Estate Agency and was refused an opportunity to view the property and was subject to discriminatory questioning during the phone call.
2: Summary of Respondent’s Case: Complaint No 1
It was not denied that the complained of advertisement had indeed appeared on Website X. However the Respondent most vigorously stated that he had no connections what so ever with Website X. Website X was a “Trawling or what was termed a Phishing Website” –i.e. They, without any permissions from the Estate Agents took advertising copy from other websites and purported to display it as genuine on Website X. The Advertisement in question had been used in 2014, before the amendment to the Equal Status Act in 2015 came into force. It had been discontinued in late 2104 as the property in question had been successfully rented out to a tenant in December of that year. The fact that Website X now revived the Advertisement was not something that the Respondent Agency had any control over. Correspondence was exhibited from the Respondent to Website X in late 2016 protesting about the copying of Respondent Agency Adverts without any permission. The Respondent in 2016 had demanded of Website X that all adverts concerning any properties on the Respondent’s books be removed immediately. Corroborating evidence regarding the activities of Website X, from other Estate Agents in South Leinster, was offered. Regarding the alleged discriminatory phone call the Respondents had absolutely no records of the call. They had discontinued their Rental Management business in 2015 and this would have been the first thing explained to any caller. More importantly the property at the centre of the complaint had been rented out in December 2014 and any caller would have been immediately informed of this fact. In addition it made no sense for the Agency to be advertising, in February 2016, a property that was already rented to a tenant since 2014. It was their belief that no telephone call from the Complainant had ever taken place. In summary the Respondent’s denied any connection with Website X, the disputed advert had in effect been “pirated” without their permission. They could not in any way be held liable. Complaint No 2
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Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00010169-001 | 11/03/2017 |
3: Summary of Complainant’s Case: Complaint No 2
The Complainant based his case on correspondence between the Respondent and the WRC dated the 24th January 2017. In an email which was copied, as standard practice, to the Complainant the Respondent was alleged to have discriminated against the Complainant on the grounds of his Gender and Race –particularly his skin colour. The Complainant maintained that if his skin colour had “been white” he would have been treated completely differently and in a non-discriminatory fashion.
4: Summary of Respondent’s Case: Complaint No 1
It was accepted that the Communication of the 24th January had issued from the Respondent.
It was maintained that the Communication was from the Respondent to the WRC. The Communication, an e mail, was not in any way discriminatory on the grounds of Gender and Colour as alleged.
The Respondent had no way of knowing the Complainant’s skin colour as he had never physically met him prior to the hearing. The Gender grounds were absolutely denied as there could be no inference on any mention of gender in the e mail.
The e -mail might have been written differently by a Solicitor but the Respondent was a small business. Overall there was nothing discriminatory in the e- mail.
5: Findings and Conclusions:
5:1 The Law The Burden of Proof. Considering the background facts to this case the Burden of Proof requirements to sustain an Equal Status / Discrimination claim are crucial. It is now well accepted law that the first requirements for a successful claim lies in establishing a prima facie case. In this regard, I consider that it is appropriate for me to firstly consider the Labour Court’s comments in examining the circumstances in which the probative burden of proof applies in employment equality cases. This is a guideline well accepted in considering Equal Status cases. In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Labour Court adopted the approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR 246, and 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 …”. The Labour Court continued “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.”
Accordingly the primary need is for the Complaint to clearly establish a well evidenced prima facie case in an Equal Status case. 5:2 Consideration of Complaint No 1 From the evidence presented and the documents exhibited I was happy that the Complainant had not established to the required standard the proof that Respondent had a commercial connection or control or agency with Website X. Accordingly I accepted that the Respondent had no liability for any material that was in effect taken without their consent or agreement and advertised on a website they had nothing to do with. On balance I had to come to the view that the complaint was against the wrong Respondent –the potential offending party was Website X who allegedly continued to publish discriminatory adverts, lifted from other websites, post the amendment to the Equal Status Act in 2015. Leaving aside these legal points the common-sense argument was equally strong –why would any Estate Agent advertise in February 2016 a property already let in December 2014 .? Furthermore the Respondent made it clear that they had not carried on a Rental Lettings business since early 2015. Section 42 of the Equal Status Acts 2000 – vicarious liability – was considered in this context. Website X was not an employee or agent of the Respondent. Section 42 was not applicable in this case. Accordingly I could not find a prima facie case that clearly linked, in any culpable way, the Respondent to the disputed advert.
Regarding the disputed phone call to the Agency I found the Complainant’s position very improbable here. The Complainant could not supply even basic details such as, the possible gender, of the person he had alleged spoken to in the Agency. He was most unclear in his recollections as to even the mechanics of making the phone call. Public phones in a number of Public Libraries in South Dublin were mentioned but it was very unclear from which Library the call had been made from. Overall the credibility of the Complainant was severely lacking here. In conclusion I came to the view that a) The Respondent could not be held liable for an advert that had been taken without his permission and used on a website that he had no connection with. b) The credibility of the Complainant in regard to the discriminatory phone call was severely lacking and a prima facie case could not be made of any discrimination. 5:3 Consideration of Complaint No 2 In oral evidence at the hearing it was clear that the parties had never physically met prior to the hearing and it appeared to me equally improbable that any phone calls had ever been exchanged. The racial origins and the skin colour of the Complainant could not have been known to the Respondent. The Complainant alleged that his Country of Origin, the Congo, and his name were clear indicators of both facts. However in discussions it was acknowledged that his name and his nationality could not be taken as cast iron indicators of his colour. A Country could have a wide variety of individuals of many racial origins and assumptions could not be made. On balance I came to the view that the E mail of the 24th January to the WRC was probably somewhat injudicious from a strict legal point of view but there was no clear indication that it was discriminatory on the Racial or Colour grounds being suggested. I did not accept the Complainant argument that the Respondent was in some discriminatory way seeking to prevent the Complainant changing his geographic home address from Dublin to a South Leinster location. An assumption was being made that was not supported by any credible evidence. In overall conclusion I found that the Complainant failed to establish a prima facie case as regards discrimination on Gender and Race Grounds in Complaint CA-00010169-00 (which has been referenced as Complaint No 2 in this Adjudication.)
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6: Decision:
Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.
Act | Complaint/Dispute Reference No. | Formal Decision /refer to Section 5 of this Adjudication for reasoning. |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00010169-001 | Case dismissed -no prima facie case established. |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00007155-001 | Case dismissed -no prima facie case established. |
Dated: 6/10/17
Workplace Relations Commission Adjudication Officer: Michael McEntee
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