Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00021121-001

13/08/2018

The complainant is alleging that she was discriminated against by the respondent on grounds of race in relation to the provision of a service. The complainant is an Italian national.

The complainant is the owner of an apartment in a development complex where the respondent is the property management company who manages and maintains the development. The management company issued correspondence by e-mail on 6 July 2018 to the complainant regarding an alleged breach of House Rules and in particular Rule 6 which states as follows

“6. Washing/Laundry – Washing must not be hung out to dry on balconies or from windows, as provided for in the Lease Agreements.”

The complainant stated that she had shaken the duvet from her bed and it would only have been left   momentarily at the window while she made the bed and therefore did not breach the House Rules.

The complainant states that she received a further e-mail on 9th July as follows; “I’m sorry to say this but you’re not being helpful to the aesthetics of the development with your Italian habit of hanging out your bed linen. If all the residents were to do this, the development would take on the look of a ghetto. I’ve attached the latest photo I received concerning another infringement. We’re asking for your co-operation in this matter”. The complainant maintains that she was shocked and upset by this e-mail. The complainant states that previously she had brought issues to the management company in relation to other residents leaving items left out on balconies and green areas and anti-social behaviour but nothing was done about these issues.

The complainant states that on 9th August she received a further e-mail notifying her that she had again hung washing out and had placed her duvet out the window and she was given a fine of €250 in respect of same. The complainant maintains that somebody is watching over her windows daily and taking pictures and reporting her to the management company for hanging out laundry. The complainant states that other residents breach house rules and no one was ever fined for same. The complainant is alleging that she has been subjected to discrimination on grounds of her race by the respondent company.

The respondent states that it is a property management company and has managed and maintained multiple developments across the Leinster region for many years. The respondent submits that the complainant’s claim is statute barred pursuant to section 21(2) of the Acts. The respondent accepts that the complainant furnished it with Form ES.1 and ES.2 by e-mail on 17th July 2018 notifying it of her belief that she had been subjected to unlawful treatment by way of two e-mails that she had received from the respondent on 6th July and 9th July 2018, the content of which she alleges was offensive and discriminatory on the grounds of race.

However, the respondent submits that having received the e-mail with the forms attached at 12.03 pm on 17th July, it replied at 1.06 pm and strongly denied the allegations which it confirmed would be equally strongly defended. The respondent asserts that in response, the complainant confirmed by e-mail that she was not proceeding with the complaint. The respondent contends that it was clear therefore that the complainant had confirmed that she was not seeking redress under the Acts and in such circumstances, the requirements set out in section 21(2) have not been met. The respondent submits that accordingly the complaint is statute barred and must be dismissed.

Subsequently, the respondent states that the complainant resurrected her complaint directly in response to a fine levied on her under the development’s House Rules on 9thAugust last. The respondent submits that the complainant failed to notify the respondent as required. The respondent is aware that the complainant inserted a hand written note dated 9th August 2018 on to the copy of the ES1/ES2 forms which she submitted to the WRC as part of her complaint. In this hand written note, the complainant appears to take issue with the fine, levied on her for persistent breaches of the respondent’s client’s House Rules.

The respondent states that it is not clear as to whether or not the complainant intends the matters set out in the hand written note to form part of her complaint under the Acts. In the event that this is her intention, then the respondent is fully satisfied that the fine referred to by the complainant was entirely warranted and was applied in accordance with the House Rules. Notwithstanding this position, it is the respondent’s case that the complainant has, similarly, failed to notify the respondent of a complaint in relation to any matters referred to in her hand written note dated 9th August last as per the requirements set out in section 21(2) of the Acts. The respondent states that the hand written note is dated 9th August and was certainly not part of the ES.1/ES.2 forms sent to the respondent on 17th July last. The respondent submits that consequently this complaint is statute barred.

Without prejudice to the above, the respondent states that the complainant was not treated less favourably on grounds of race or less favourably at all. In addition the respondent states that the complainant has not discharged the burden of proving a prima facie case of discrimination. The respondent states that the material facts of the case as set out as follows. On 6th July 2018 at 9.44 am, the respondent sent an e-mail to the complainant as follows;

“Hi Patrizia,

I received the attached photo of washing hanging from a window and was informed it was your apartment. Will you ensure if its yours that it is removed.

Regards

Pat”

At 9.59am on the same day, the complainant replies as follows;

“Again

All balconies around me have a washing out including the back of the townhouses.

Are we starting with targeting people ?

And dismiss the issues I pointed out recently ?”

A few minutes later at 10.08am, the complainant sent a further e-mail as follows;

“Last, but not least

As I’m Italian

I do shake blankets, sheets out of the window when I make my bed.

The respondent states that a further e-mail was sent to the complainant on 9th July as follows; “I’m sorry to say this but you’re not being helpful to the aesthetics of the development with your Italian habit of hanging out your bed linen. If all the residents were to do this, the development would take on the look of a ghetto. I’ve attached the latest photo I received concerning another infringement. We’re asking for your co-operation in this matter”.

The respondent reiterates that the e-mail sent to the complainant on 6th July was sent for the purposes of requesting that the complainant comply, if indeed the washing/laundry was hers. The respondent states that it is obliged to uphold its client’s House Rules and deal with any and all breaches or possible breaches by any of the residents. The respondent asserts that in her e-mail at 10.08 am on 6th July, the complainant herself expressly links her Italian nationality with her practice or habit of shaking her blankets and sheets out the window when she makes her bed. The respondent states that at no stage prior to the complainant’s own reference, on her own motion did the respondent make any reference to the complainant’s nationality or race. The respondent submits that until the complainant pointed it out in this e-mail, it was completely unaware that the complainant was an Italian national.

The respondent submits that the reference to the complainant’s “Italian habit” in its e-mail at 10.22 on 9th July was clearly in response to, and in keeping with, the complainant’s own description and the frame of reference chosen by her. The repeating of that description on the respondent’s part was plainly in ease of the complainant and was for the purposes of clarity, consistency and continuity in the communications which at that stage were more than 72 hours apart. The respondent states that in relation to the use of the description, “a ghetto”, in circumstances where the description is qualified by the preceding words, “..the look of..” the use of the description was deployed for image or imaging purposes and clearly refers to the undesirable aesthetic impact of washing/laundry hanging from windows or balconies as distinct from a reference to any other possible intrinsic characteristics of a ghetto. The respondent states that this position is supported by its express use of the word, “aesthetics” in the first line of the same e-mail.

The respondent states that the reference to “Jews” made by the complainant in the ES 1 form is made by her solely and entirely on her own motion and is not a term that was ever used or repeated by the respondent in any communications pertaining to these matters at any time. The respondent submits that it is noteworthy that between the period of 6th July when the first e-mail was sent by the respondent and 17th July when the complainant sent the ES.1/ES.2 forms to the respondent, the complainant sent seven e-mails to the respondent and in not one of those e-mails does she make reference to “Jews”. The respondent contends that it is plainly the case that the complainant’s introduction of the term “Jews” was a highly disingenuous attempt by her to create and bolster a case where none exists. The respondent submits that this approach by the complainant is indicative of her overall approach to the instant case which could be regarded as frivolous and vexatious.

The issue for decision by me is whether or not the respondent discriminated against the complainant on grounds of race in terms of section 3 of the Equal Status Acts. 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.

The Acts require the complainant to establish, in the first instance, facts upon which she can rely in asserting that prohibited conduct has occurred in relation to her. 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.

Preliminary Issue

The respondent has strongly argued that the instant claim is statute barred pursuant to Section 21(2) of the Acts. This Section states as follows

(2) Before seeking redress under this section, the complainant –

(a) shall, within 2 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 2 months after the last such occurrence, notify the respondent in writing of –

(i) the nature of the allegation,

(ii) the complainant’s intention, if not satisfied with the respondent’s response to the allegation, to seek redress under this Act.

Having carefully examined all the evidence, I am satisfied that the complainant has not complied with the notification requirements pursuant to Section 21 (2) of the Acts, in that, following receipt of the fine on the 9th August 2018, there was a requirement on her to notify the respondent as outlined at (i) and (ii) above. However, she failed to do so, accordingly, I have no jurisdiction in the matter.

I find that I have no jurisdiction in this matter as the complainant has failed to comply with notification requirements pursuant to Section 21 (2) of the Acts. Therefore, I dismiss this complaint.