Complainant

Respondent

Parties

Abdullah O'Fayoumi

Mr Sean Walsh

Act

Complaint Reference No.

Date of Receipt

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

CA-00016912-001

18/01/2018

The Complainant is a job-seeker and claims that he rented accommodation from an auctioneer on behalf of the Respondent. He said that he was requesting to have documents signed in relation to the Housing Assistance Payment (HAP) scheme and was told by the Respondent that he would not sign them and that he had to leave.

The Respondent in submissions to the WRC stated that the Complainant acquired the property to rent through false pretence, was asked to leave and became very difficult to deal with and had looked for compensation to leave.

Preliminary matter

The Complainant, in reply to the Respondent’s claim that the complaint was lodged incorrectly under section 81(e) of the Pensions Act, 1990 and not the Equal Status Acts, said that he is not an Irish national or a legal professional and that he used the Workplace Relations Commission forms to lodge his complaint and that the narrative on the form sets out his case and he would like that to be considered.

Substantive matter

The Complainant said that he is a job-seeker and is entitled to social welfare payment. On 25 September 2017 through an auctioneer he rented accommodation belonging to the Respondent. He said that at the start the auctioneer promised to sign the Department of Social Protection forms. However, after numerous reminders about the forms he met with the auctioneer who directed him to the Respondent, the landlord.

The Complainant said that he contacted the Respondent, who told him that he previously had bad experiences with people claiming Social Welfare funding and that he needed time to consider if he would sign the forms or not. Consequently, the Complainant said that the Respondent informed his wife that he was no longer looking after the property and that the Complainant should contact the auctioneer.

The Complainant said that he was going between the auctioneer and the Respondent regularly, looking for the forms to be signed and he was feeling severely worried, exhausted and extremely stressed. He said that he felt that he had no option but to send notification in accordance with the Equal Status Acts, 2000 – 2015 that he felt he was being discriminated. He said that he was approached by the auctioneer and told to leave the accommodation within a week, otherwise he and the Respondent were going to evacuate him for anti–social behaviour.

He said that the Respondent visited him and told him to stop dealing with the auctioneer that he was the landlord and he promised to find a solution. The Complainant claims that the Respondent suggested paying him €1,800, the amount equal to that supposed to be paid to him by the Department of Social Protection, and that he would return his deposit if he accepted in writing to leave the accommodation by the end of January. The Complainant was frustrated but accepted the offer and started to look for alternative accommodation.

He claims that he left the property and after numerous visits to the Respondent subsequently he never got what was agreed so he took the complaint to the Workplace Relations Commission for adjudication.

The Respondent was not in attendance and did not seek an adjournment. The Respondent’s Solicitor on instruction from the Respondent raised the following points.

Preliminary matter

The Respondent’s Solicitor said that the case before the Workplace Relations Commission for consideration was lodged under section 81(e) of the Pensions Act, 1990 as amended by the Social Welfare (Miscellaneous Provisions) Act 2004. Therefore, the case made out under the Equal Status Acts is not before the Workplace Relations Commission, and I have no jurisdiction to consider the matter.

Substantive matter

The Respondent’s Solicitor presented his defence of the case primarily on the direct evidence from the auctioneer, as referenced above, who said that he had worked closely with the Respondent on this matter.

The Respondent’s witness said that the Complainant’s wife was the person seeking the accommodation and it was her name that appears on the Lease. He said that suddenly the Complainant took over the house and his wife seem to move away. He said both the landlord and the auctioneer became concerned as the Lease was in the Complainant wife’s name and not him. He said the Complainant presented documentation from the Department of Social Protection looking for it to be signed. He became very aggressive and hostile. The Witness said since neither he nor the Respondent had a contract with the Complainant they could not complete the documents and so started the problematic relationship with them and the Complainant until he left.

The Witness produced what he claims was a copy of the original lease agreement and the Complainant’s signature is not on it. He claims that the document was signed without the Complainant present.  

In accordance with Section 25 of the Equal Status Act, 2000 following the referral of the complaint to me by the Director General, I enquired into the complaint and gave the parties an opportunity to be heard by me and to present any evidence relevant to the complaint.

I heard the submissions made by the parties in relation to the preliminary matter and the substantive matter.

The Preliminary matter

The Complainant said he ticked the complaint relating to section 81(e) of the Pensions Act, 1990 as amended by the Social Welfare (Miscellaneous Provisions) Act 2004 in error. The Complainant at the hearing clarified that it was his intention to submit his complaint under the Equal Status Acts. I note that he has met the notification requirements under the Equal Status Acts and the narrative of his complaint clearly sets out the facts of his case.

Having considered the evidence and submissions of the parties, I decide that the correct complaint is indeed the claim under the Equal Status Acts and not the Pensions Act.

In considering the Complainant’s request to pursue with the claim under the Equal Status Acts, I am guided by the High Court judgment in the case of County Louth Vocational Educational Committee v The Equality Tribunal and Pearse Brannigan [2009] IEHC 370. In that case McGovern J. held that it was permissible to amend a claim set out in form EE.1 where ‘the general nature of the complaint (in this case discrimination on grounds of sexual orientation) remains the same.’ I note that McGovern, J. also stated in this decision that this can only be done as long as the general nature of the complaint remains the same. He went on to say that "what is in issue here is the furnishing of further and better particulars" and "the respondent .... must be given a reasonable opportunity to deal with these complaints and the fair procedures adopted by the Equality Officer must be fair and reasonable and in compliance with the principles of natural and constitutional justice."

I note also the dicta of the Labour Court in Wach v Travelodge Management Ltd EDA 1511 where is said, “The decision of the High Court in County Louth VEC v Equality Tribunal [2009] IEHC 370 is a seminal case on the question of when proceedings before a statutory tribunal can be amended. In that case McGovern J set out the following principle of law: - If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then, a fortiori, it should also be permissible to amend a claim as set out in a form such as an originating document before a statutory tribunal, so long as the general nature of the complaint remains the same.  

The ratio of that case appears to be that the procedures adopted by statutory tribunals in relation to the amendment of non-statutory forms used in the initiation of claims should not be more stringent than those that apply in the ordinary courts. That is in line with the generally accepted principle that statutory tribunals, such as this Court, should operate with the minimum degree of procedural formality consistent with the requirements of natural justice. On that point the decision of the Supreme Court in Halal Meat Packers (Ballyhaunis) Ltd v Employment Appeals Tribunal [1990] I.L.R.M 293 is relevant. Here Walsh J stated, albeit obiter, as follows: -

This present case indicates a degree of formality, and even rigidity, which is somewhat surprising. It is a rather ironic turn in history that this Tribunal which was intended to save people from the ordinary courts would themselves fall into rigidity comparable to that of the common law before it was modified by equity.”

Finally, I note in G v The Department of Social Protection [2015] IEHC 419 O’ Malley J referred to the objectives of the Equal Status Acts which is described as a remedial statute, that its overall purpose is to reduce the social wrong of discrimination based on improper considerations. She stated that It follows that it must be widely and liberally construed.

I am satisfied that it was always clear to all parties, including the Respondent, that this complaint relates to the Complainant’s HAP form. There is no question of prejudice or surprise for the Respondent. In the case before me for consideration the Complainant had submitted the incorrect form but had still referred clearly to an allegation in the narrative of the form. In addition, the Complainant had notified the Respondent who was very much aware of the issues the Complainant had. I am also mindful of the fact that the Complainant in this case is not an Irish National, had completed the form himself and was unrepresented throughout the process. I note that the Workplace Relations Commission forms are not statutory forms.

I am therefore satisfied that the Respondent has been on notice of the claim of discrimination on the ‘HAP’ ground and is in no way prejudiced by the Complainant ticking the wrong box on the WRC complaint form.  

I am satisfied given all of the circumstances that it would not be contrary to fair procedures and natural justice for me to consider the Complainant’s allegation of discrimination. Accordingly, I am satisfied that I do have jurisdiction to permit the Complainant to proceed with the allegation under the Equal Status Acts on the ground of HAP and I have amended the form accordingly.  

Substantive matter

The Law

Section 3 (1) of the Act provides:

“For the purposes of this Act discrimination shall be taken to occur-

(a)    Where a person is treated less favourably than another person is, has been or world be treated in a comparable situation on any of the grounds specified in subsection (2) or, if appropriate subsection (3B) (in this Act referred to as the “discriminatory grounds”) which –

(i)exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

[...]

 (2) As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are:

[…]

(3B) For the purpose of section 6(1) (c) the discriminatory grounds shall (in addition to the grounds specified in subsection (2d) include the ground that as between any two persons, that one is in receipt of rent supplement (within the meaning of section 6(8), housing assistance (construed in accordance with Part 4 of the Housing (Miscellaneous Provisions) Act 2014) or any payment under the Social Welfare Acts and the other is not (“the housing assistance ground”).

The Complainant complains that he has been discriminated against in terms of Section 3 and Section 6 of the Equal Status Act 2000-2015 in the provision of services related to accommodation by the Respondent on the housing assistance ground. In particular, the Complainant alleges discrimination in relation to the actions of the landlord who failed to sign the necessary Department of Social Protection documentation to allow the Complainant claim assistance from Housing Assistance Payment (HAP) scheme, served him with a termination of lease and removed him from the accommodation on the basis that the Respondent had previous difficulties with tenants claiming social welfare payments.

The Respondent case is that he did not discriminate, that simply he did not have a contract with the Complainant and therefore could not sign his Department of Social Protection documentation.

The Respondent’s witness produced a “copy” of a Fixed Term Residential Lease Agreement and claims that the Complainant was not in the room when this document was signed by this wife and that is who the lease agreement was with.

The Complainant was in receipt of what he claims and what appeared to me as the original Fixed Term Residential Lease Agreement, which is signed by all parties including the Complainant. Both documents, at page two, had the Respondent’s name as landlord and the tenants named as the Complainant and the Complainant’s wife. The Complainant at the hearing was adamant that he was always there in the discussions about the property and gave evidence of the day he signed the lease.

These facts support the Complainant’s claim and place serious questions to the main arguments of the Respondent’s case. I prefer the Complainant’s evidence here.

Notwithstanding the difference of opinion above, the most crucial evidence in this case lies with the Complainant’s claim that the Respondent told him that he wished to terminate the lease agreement on the basis that he was not going to sign the Department of Social Protection forms for HAP based on previous difficulties he had with social welfare tenants. The Complainant said an agreement was reached where he would get a sum of money and his deposit would be returned if he left the property. He said the Respondent broke that agreement. He said that if the agreement was honoured he would not have taken the case to the WRC. The Respondent was not present at the hearing to offer a rebuttal of this evidence and only he can give that evidence.

The burden of proof is set out in Section 38A of the Equal Status Acts 2000-2015 and requires that where facts are established by or on behalf of a Complainant from which it may be presumed that prohibited conduct has occurred, the burden of proof shifts to the Respondent. Then it is for the Respondent to prove the contrary.

On the uncontradicted evidence before me, I find a prima facie case of less favourable treatment has been established by the Complainant on the HAP ground. The burden of proof shifts to the Respondent. I am satisfied therefore, that the Respondent has failed to rebut the prima facie case raised by the Complainant.

I have concluded my investigation of this complaint and for the above reasons I find, pursuant to Section 25(4) of the Acts, that the Complainant has established a prima facie case of direct discrimination on the housing assistance ground which the Respondent has failed to rebut.

Under Section 27(1) of that Acts redress may be ordered where a finding is in favour of the Complainant. Section 27(1) provides that:

"the types of redress for which a decision of the Director of the Workplace Relations Commission under section 25 may provide are either or both of the following as may be appropriate in the circumstances:

(a) an order for compensation for the effects of the prohibited conduct concerned; or(b) an order that a person or persons specified in the order take a course of action which is so specified."

Under the above Section the maximum amount of compensation I can award is €15,000. Pursuant to Section 27 of the Equal Status Acts 2000-2015, I order compensation of €4,000 [four thousand euro] to be paid by the Respondent to the Complainant as compensation for the effects of the prohibited conduct.

Equal Status Act – HAP ground - compensation