ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00006866
Parties:
| Complainant | Respondent |
Anonymised Parties | A Complainant | Mr A |
Representatives |
| Fionnuala De Paor, Solicitor |
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-00007568-001 | 12/10/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00007570-001 | 12/10/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00007572-001 | 12/10/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00007574-001 | 12/10/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00007576-001 | 12/10/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00007577-001 | 12/10/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00007578-001 | 12/10/2016 |
Date of Adjudication Hearing: 01/11/2017
Workplace Relations Commission Adjudication Officer: Shay Henry
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 25 of the Equal Status Act, 2000,following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The complainant alleges discrimination under the Equal Status Act insofar as when he contacted the respondent about advertised properties for rent he was asked where he was from, how long he had been in Ireland and therefore was the discriminated against on the ground of race. Secondly, the complainant alleges discrimination under the Equal Status Act as amended by the Equality (Miscellaneous Provisions) Act 2014 insofar as the respondent informed him that ‘people on rent allowance are not accepted for this accommodation and this is clearly stated in the advertisement’ |
Summary of Complainant’s Case:
The complainant resides in Dublin and due to an increase in rent in January 2016 he started to look for new accommodation on line. On 26th February 2016 the respondent had advertised on his web page accommodation to rent in Doaghbeg, Fanad, Letterkenny. The complainant called the advertised number and asked to arrange a viewing. He was asked several questions including where he was from, how long he was in Ireland, how he was going to pay the rent and what did he do for a living. When he mentioned he was in receipt of rent supplement he was told that people on rent allowance are not accepted for this accommodation and this was clearly stated on the advertisement. The person then hung up on him abruptly. He double checked the ad which stated that rent allowance was not accepted. On 11th April 2016 the respondent advertised on line properties to rent at 6 other locations in Donegal. The complainant called the number to arrange for a viewing and was asked several questions including where he was from, how long he was in Ireland, how he was going to pay the rent and what did he do for a living. When he mentioned he was in receipt of rent supplement he was told that people on rent allowance are not accepted for this accommodation and this was clearly stated on the advertisement. The person then hung up on him abruptly. The complainant sent the ES1 form to the respondent who replied to the effect that; the website is rarely used by them; on all properties rent allowance was accepted; all properties were available for him to come and view; there was no intention to discriminate. This is not true in the opinion of the complainant.
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Summary of Respondent’s Case:
The respondent contends that the complainant had no intention of renting any of the properties in question and that the complainant never made direct contact with the respondent regarding any of the properties and had no connection with Donegal where the properties are based. The respondent believes that the complainant was not actually seeking accommodation in Donegal but selected a number of websites through online search and initiated a number of claims against other letting agents in other parts of the country. Due to technical issues with the respondent’s website the statement was up in error and has since been rectified and the respondent commits fully to preventing a recurrence. The respondent has let many properties to those in receipt of rent supplements or social welfare payments with many of his tenants being non-nationals.
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Preliminary Issues
The respondent raised the following preliminary issues;
- Respondent’s legal title.
- 2. Out of time.
- The Respondent states that the title - Trearty Properties - used in the proceedings is incorrect. The correct legal name of the company is Trearty Property Management Ltd.
The complainant indicated the date of discrimination as 11/04/2016 and referred the complaint on 12/10/2016 and therefore is outside of the 6 months’ statutory time limit.
- Privacy.
The respondent states that the same complainant named the respondent in an unrelated complaint to which the respondent had no connection and his name was not now in private as required.
Complainant’s submission on preliminary issues.
- Respondent’s legal title.
The complainant states that the name Trearty Properties was used on the company’s web site and that is the reason he used that title.
- Out of time.
The complainant states that he was one day outside of the six month time limit and requested the adjudication officer to extend the time limit. The reason for the delay was due to ill-health and the complainant submitted medical certificates in respect of this.
- Privacy.
The complainant filled out another complaint form in respect of a case involving a Galway based letting agency and used the respondent’s name in error.
Conclusions of Adjudication Officer on preliminary issues.
- Respondent’s legal title.
The respondent had ample opportunity following the referral of the initial complaint to inform both the WRC and the complainant that the proceedings had been initiated against the incorrect legal entity. However, the respondent accepted these proceedings and continued to engage with the WRC and the complainant in relation to the complaint of discrimination, following the referral of that complaint, and was properly communicated with on all issues. I do not accept that the respondent has been disadvantaged and therefore reject the argument.
- Out of time.
In relation to time limits the Equal Status Act states;
Subject to subsection (7), a claim for redress in respect of prohibited conduct may not be referred under this section after the end of the period of 6 months from the date of the occurrence of the prohibited conduct to which the case relates or, as the case may be, the date of its most recent occurrence.
(7) If, on application by the complainant, the Director is satisfied that exceptional circumstances prevented the complainant's case from being referred within the time limit specified in subsection (6)—
(a) the Director may direct that, in relation to that case, subsection (6) 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.
In the case of Gaelscoil Thulach na nOg v Joyce Fitzsimons–Markey (EET 034), the Court, on the issue of extensions of time, stated: “To be exceptional, a circumstance need not be unique or unprecedented, or very rare, but it cannot be one which is regularly, or routinely encountered”
In view of the medical evidence submitted by the complainant I find that exceptional circumstances exist and therefore I determine that the complaint is in time.
- Privacy.
I do not see the naming of the respondent in a separate and unrelated case as impacting on the respondent in this case.
Findings and Conclusions:
Section 38A of the Equal Status Acts provides that the burden of proof is:"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."It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that prohibited conduct has occurred. Therefore, the complainant must first establish a prima facie case of discriminatory treatment and it is only when a prima facie case has been established that the burden of proof shifts to the respondent to rebut the presumption of discrimination. It is clear from the evidence provided by both parties that the respondent had a website advertising properties for rent which stated that people on rent allowance should not apply. The complainant claims that he contacted the respondent on 26th February 2016 inquiring about the availability of one particular property and was asked where he was from, how long he was in Ireland, how he was going to pay the rent and what did he do for a living. When he mentioned he was in receipt of rent supplement he was told that people on rent allowance were not accepted for this accommodation and this was clearly stated on the advertisement. According to the complainant it was at this stage that he checked the ad again and discovered the offending provision relating to people on rent assistance. According to the complainant, without knowing that he was contacting the same company, he phoned again on 11th April 2016 and inquired about 6 other properties and received the same response. The respondent disputes that these conversations took place. In reaching a decision on this issue I examined the consistency and credibility of the evidence presented and in particular noted the following; The complainant stated that he came across the respondent’s website when searching for properties in Donegal. When asked if he looked at any other websites in respect of accommodation in Donegal he could not recollect. In this regard it is notable that most of the respondent’s properties for rent - approximately 300 - are displayed (without reference to rent allowance) in the website of a national agency whose site is the most prominent when a search is conducted by google for properties in Donegal. Indeed, it is difficult to find the respondent’s own website containing the offending advertisement without considerable searching. The respondent states that his website is the 30th listed when searching on google for properties in Donegal. In relation to the particular properties containing the offending advertisement the complainant was unable to recollect if he had inquired about any properties not advertised in this way even though there were some such on the respondent’s site. The complainant states that he unwittingly contacted the respondent’s office on a second occasion. While in his evidence he had a strong recollection of the interaction which took place, when asked whether he spoke to a male or female on either occasion, he claimed he was not a voice expert and was unable to distinguish between male and female voices and therefore did not know. The complainant was unable to provide evidence of making a phone call as he claims it was from a public phone. The respondent gave evidence to the effect that most of the properties in question had in fact been let or were off the market prior to any of the claimed contacts by the complainant. The respondent contends that anyone enquiring about these properties, rather than being asked questions about their personal circumstances, would have been told that they were no longer available. Subsequent to the hearing the respondent supplied documentary evidence in support of the evidence relating to the properties in question not being available for rent at the time the complainant claims to have made the enquiry. Based on the evidence provided I found the evidence of the complainant to be inconsistent and lacking in credibility. While it is clear that the respondent advertised certain properties in a manner contrary to the Act I do not believe that the complainant was discriminated against insofar as the evidence would suggest that he had no interest in renting any of the respondent’s properties but rather, having sought out such advertisements, pursued them as an opportunity. I find that the complainant had no real intention of renting any of the respondent’s advertised properties and therefore the Complainant was not in fact availing of a service within the meaning of the Equal Status Acts and that his complaint is contrived. In circumstances where the complainant had no intention of availing of the service he cannot rely on the provisions of the Act and therefore I must dismiss the claim. No credible evidence supporting the claim of victimisation was presented and therefore I dismiss the claim. No credible evidence was presented in relation to the complainant’s ‘race’ claim and therefore I dismiss the claim.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
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.
A prima facie case of discriminatory treatment has not been established in this instance and therefore I find that the complainant was not discriminated against pursuant to Section 6 of the Acts. |
Dated: 31st January 2018
Workplace Relations Commission Adjudication Officer: Shay Henry
Key Words:
Equal Status Act as amended by the Equality (Miscellaneous Provisions) Act 2014 |