Complainant

Respondent

Anonymised Parties

A Tenant

A Property Asset Management Company

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00017291-001

06/02/2018

The complaint is brought pursuant to Sections 3 and 6 of the Equal Status Act, 2000 as amended by the Equality (Miscellaneous Provisions) Act, 2015 with effect from 1st January 2016 which introduced the “housing assistance ground” and prohibits discrimination in the provision of accommodation.

The Complainant was a long-term tenant of the Respondent and contends that she has been discriminated against by the Respondent in its refusal to accept the Housing Assistance Payment (hereinafter referred to as ‘HAP’) Scheme towards the payment of her rent.

The Respondent denies the claim. The Respondent contends that the eviction of the Complainant was as a result of areas of rent in the sum of €17,250.

Given the sensitivities of the issues I would be exercising my discretion to anonymise this decision.

The Respondent submits that the Complainant states on her Workplace Relations Complaint Form that the first incidence of alleged discrimination took place on the 24th December 2014 and the most recent alleged incidence on the 9th of July 2017.

The Respondent relies on Section 21(2) of the Equal Status Acts, which requires that a complainant must notify the respondent in writing of the nature of the complaint within 2 months after the prohibited conduct is alleged to have occurred. 

Section 21(3) of the Acts provides that, on application by a complainant, the Director General of the Workplace Commission may for reasonable cause, direct that the notification period of 2 months be extended to not more than 4 months. 

The Respondent submits that the first alleged incidence took place almost 3 years prior to the submission of the complaint and the most recent alleged incidence took place over 5 months prior to the submission of the complaint.

Therefore, the Respondent submits that the complaint is outside of the statutory requirement.

The Complainant’s solicitor submits that the Complainant is not an Irish national. She was not aware of the specific requirement to notify the Landlord within the two months statutory period. The Complainant wrote to various bodies including the Residential Tenancies Board (RTB) and Housing Assistance Payment Unit of the Council. Post-hearing the Complainant’s solicitor submitted a letter dated 15th June 2018 from the Complainant’s GP and a copy of letter dated 29th June 2017 from Consultant Psychiatrist to the Complainant’s GP. The Complainant’s GP confirms that the Compliant has had ongoing problems with depression over the past 12 months and remains on anti-depressant medication. She feels isolated at times and misses her family, she expressed suicidal ideation in June 2017 due to her difficult circumstances.

The Respondent submitted that the Adjudication Officer does not have jurisdiction to investigate the present complaint on the basis that the Complainant has failed to comply with the notification provisions of Section 21(2)(a) of the Equal Status Acts in relation to the time limits. This provision requires that a person seeking redress under the Act must notify the service provider in question of the nature of the alleged discrimination within two months after the prohibited conduct is alleged to have occurred or where more than one incident of prohibited conduct is alleged to have occurred, within two months of the last such occurrence. Section 21(3)(a) of the Act stipulates that the Director General of the WRC may, for reasonable cause extend the time limit to period not exceeding four months. The Respondent submits that the Compliant has failed to apply to the Director General of the WRC for the extension of the time limits provided for in the Act and has not demonstrated reasonable cause for extending the time limit in accordance with the provisions of Section 21(3)(a)(i) of the Act. In the instant case the incident of discrimination was alleged to have occurred on 9th July 2017. The Complainant noted that on that day or “some days later” the lock on her apartment was changed. The Respondent verified the date and presented a copy of “Overdue Rent -Eviction Notice” dated 17th August 2017, which states: “You are to deliver up said premises on or by the 25th August…”. The Respondent confirmed that the locks were changed on 25th August 2017. The Complainant was unsure about the date and agreed that it is possible that the Respondent is correct in that regard and it was 25th August 2017. Therefore, the deadline for notifying the Respondent was 24th October 2017. Notification to the Respondent of the alleged discriminatory act was made on 19th December 2017 by way of the form ES1. This would set the notification outside the two-month statutory time limit required under Section 21(2)(a) of the Acts but within the four-month period for which time could be extended under Section 21(3)(a) of the Acts. At the hearing the Complainants solicitor agreed that the notification to the Respondent was sent outside the prescribed time frame. The WRC Complaint Form was submitted on 6th February 2018 and therefore, within the six months’ time limit.

The Complainant’s solicitor provided some evidence in respect of the delay. Firstly, he noted that the he was not involved in the Complainant’s claim under the Equal Status Act at the start of the process. He emphasized that the Complainant is non-Irish national and she was not aware of the requirements of the Acts. He also noted that the Complainant has been occupied with dealings with the RTB, the HAP Unit and the Department of Social Protection. Post-hearing, he also submitted copies of medical evidence confirming that the Complainant has suffered from depression over the past 12 months.

I am conscious of the requirements imposed by Section 21(3)(a) of the Act, which stipulates that where reasonable cause can be shown the Director may extend the period in which the Complainant may give notice to the Respondent of the alleged prohibited conduct as required by the Act.

The jurisprudence in respect of the concept of ‘reasonable cause’ is summarised in Salesforce.com v Alli Leech EDA1615 wherein the Labour Court stated:

·          

·         “The established test for deciding if an extension should be granted for reasonable cause shown is that formulated by this Court in Labour Court Determination DWT0338 Cementation Skanska (Formerly Kvaerner Cementation) v Carroll. Here the test was set out in the following terms: -

Ø  It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.

In that case, and in subsequent cases in which this question arose, the Court adopted an approach analogous to that taken by the Superior Courts in considering whether time should enlarged for ‘good reason’ in judicial review proceedings pursuant to Order 84, Rule 21 of the Rules of the Superior Courts 1986. That approach was held to be correct by the High Court in Minister for Finance v CPSU & Ors [2007] 18 ELR 36.

The test formulated in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll draws heavily on the decision of the High Court in Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30. Here Costello Costello J. (as he then was) stated as follows:

Ø  The phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O. 84 r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.

It clear from the authorities that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time. Thirdly, the Court must be satisfied, as a matter of probability, that the complaint would have been presented in time were it not for the intervention of the factors relied upon as constituting reasonable cause.

It is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a claim that those factors were the actual cause of the delay.

Finally, while the established test imposes a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account. In particular, as was pointed out by Costello J in the passage quoted above, a Court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the institution of proceedings.”

I note the Complainant’s health difficulties. However, it was not disputed that the Complainant had the benefit of legal advice since early 2016. She was represented by a solicitor in early 2016 and in or around June 2016 she contacted her current solicitor and engaged him to deal with her affairs. She confirmed that she was also receiving support from the Citizen Information Centre, Focus Ireland and representation was made on her behalf to the Respondent by the Society of St. Vincent de Paul. There was a significant quantity of correspondence submitted by the Complainant’s representative. Having reviewed the documents I find that the solicitor engaged in frequent and detailed correspondence on behalf of the Complainant as early as 10th July 2017 with various parties including the RTB, the HAP Unit of the relevant County Council, various sections and services of the Department of Social Protection and the Respondent. I note the Complainant’s representative’s submission in respect of her not being an Irish national and the lack of awareness in relation to the time limits. Is it well settled that “Ignorance of one’s legal rights, as opposed to the underlying facts giving rise to a complaint, cannot provide a justifiable excuse for failure to bring a claim in time.” (Avery Weigh-Tronix v Kinsley DWT1244). Leaving that aside, I find that the Complainant’s representative was in fact aware of her rights and the provisions of the Equal Status Acts and communicated it clearly to the Respondent. In his email of 23rd August 2017, the Complainant’s solicitor wrote to the Respondent: “I understand from the HAP section of the [named] Council that the Landlord refuses to participate in the HAP Scheme and in review of recent decision of the WRC the Landlord was clearly not entitled to refuse to participate in the scheme as such refusal is deemed to be discriminatory and contrary to the Equal Status Acts. Unless the Landlord agrees now to participate in the HAP Scheme our Client will have no other option but to apply to the Work Relations Commission seeking a ruling that she has been discriminated against by the Landlord who, we are instructed, refused to facilitate her access to the Housing Assistance Payment Scheme.” [sic].

On 5th September the solicitor again in his email to the Respondent noted: “In light of the recent very significant WRC ruling it is clear that [the Complainant] was discriminated against by the Landlord.”

Accordingly, I cannot accept that the reasons put forward by the Complainant’ solicitor constitute reasonable cause for her failure to issue the notification to the Respondent in time. I find in the instant case that the Complainant has failed to establish a link between the difficulties she experienced and the delay in issuing her notification to the Respondent.

Having regard to the established jurisprudence on “reasonable cause” and having considered the circumstances of the case before me, I find that reasonable cause has not been shown to justify an extension of the statutory time limit for the notification to the Respondent to be issued. I therefore have no jurisdiction to hear the case.

HAP- time limit- discrimination