Complainant

Respondent

Parties

Angelica Radionova

Evershed Sutherland Solicitors

Representatives

No Appearance

Kristian Douglas B.L instructed by Evershed Sutherland Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00018172-001

26/03/2018

This case evolved from a series of complaints submitted by the Complainant to the WRC in March 2018. The complainant submitted that she had been discriminated against on disability, Housing assistance, and family grounds. In addition, she had been victimised and denied reasonable accommodation. The Respondent denied that they at any time provided a service to the complainant and sought that the case be dismissed.

The Complainant made extensive written submissions and made application that her case be disposed of by written submission alone. I considered this request made in advance of the hearing. I refused the application given the complexity of the complaints and reaffirmed the invitation to attend the hearing scheduled in the case. There was no appearance by the complainant. I am satisfied that she was properly on notice of all details of the hearing.

The Complainant submitted a written complaint received by the WRC on March 26, 2018. This complaint was not accompanied by the pre-requisite ES1 form or equivalent. The Complainant submitted that she was a Full time Carer and Home Educator. She contemned that she had been discriminated on grounds of Disability (Direct, Indirect and Associative), Housing Assistance and Family grounds. She also submitted that she had experience Victimisation, Harassment and was denied reasonable accommodation. The Complainant submitted several appendices of cross written communication with the Respondent. These seemed to detail that she had not attended a High Court Case relating to accommodation, where the Respondent was representing the Residential Tenancies Board. It appeared from the documents submitted that she had not appeared to advance her case, the case had been struck out and a Bill of costs was to be awarded against her.

The Complainant made several written applications to secure a “paper hearing “of her case and these applications were refused.

There was no appearance by or on behalf of the complainant at hearing. I allowed an extended waiting period prior to commencing the case. The complainant has not made any contact with the WRC to explain her non-appearance.

The Respondent has disputed all claims against them, described them as misconceived and sought that they be dismissed in accordance with Section 22 of the Act. On 22 May ,2018 the Respondent submitted that the complainant had not received a service in accordance with the legislative definition and as she had named both the Residential Tenancies Board and The Respondent in complaints, they sought that the cases be joined for hearing purposes.

Counsel for the Respondent outlined the background to the case, where the complainant’s landlord had applied to the Residential Tenancies board Disputes resolution services that the complainant was over holding at a dwelling and refusing the landlord access. A counterclaim by the complainant followed. The case was heard at Adjudication and the claim for overholding was upheld but off set against an award payable to the complainant to address standards.

This decision was appealed before a Tenancy Tribunal in September 2017 and the complainant did not appear there. The Notice of Termination was deemed valid and the complainant was directed to vacate the rented property 56 days later. The Complainant then issued High Court proceedings against the Residential Tenancies Board. While there was one adjournment through medical illness, over all the complainant did not make an appearance at the High Court case. The case was dismissed on 22 January 2018 with an order of costs.

On 6 February 2018, the Respondent received a 14-page notification from the complainant referring to an appeal to the Court of Appeal. The Respondent was not on notice of this document from the Court of Appeal.

The Respondent disputed the complainant’s statement that she had notified of her intention to make a complaint under Equal Status Legislation against both the Respondent and the Residential Tenancies board.

They emphasised the email sent on 15 March 2018:

“I refer to my email regarding my application to the Registrar of the Court of Appeal for “ leave to appeal “ you failed to inform the X of the matter or Y .This is discrimination and harassment against us ( my child with complex needs and myself) which is detrimental to us ……..I here request details of concealment and reasons to be given…….the primacy of the Court of Appeal must be respected “

The Respondent filed a response on behalf of their clients RTB and the Respondent. They confirmed that they did not act for the landlord in the matter. They confirmed that they had yet not received communication from the Court of Appeal.

On 15 May 2018, the Respondent wrote to the complainant and denied discrimination and stated their intention to strenuously defend the complaints.

The Respondent contended that the complainant had not complied with the Statutory notification requirements as set down ion Section 21 (2)(a) of the Act. The only notification of a complaint to the Respondent was made on 15 May 2018 in respect of an alleged failure by the Respondents to notify parties about the Complainants application to the Court of Appeal.

The Respondent requested that the case be dismissed in accordance with Section 22 of the Act .in relying on the Supreme Court decision in Farley V Ireland and OR’s [1998] ELR 256,

“So far as the legality of the matter is concerned frivolous a vexatious are legal terms, they are not pejorative in any sense or possibly in the sense that Mr Farley may think they are. It is merely a question if saying that so far as the plaintiff is concerned if he has no reasonable chance of succeeding then the law says that it is frivolous to bring the case, Similaraly, it is a hardship on the defendant to have to take steps to defend something which cannot succeed, and the law calls that vexatious.”

The Respondent went on to argue the complaint was misconceived and cited Keane V Minister for Justice [1994]3 IR 347 in support.

The Respondent submitted that they served as the Legal Representative for the Residential Tenancies Board in defending legal proceedings brought by the complainant and could not be said to be providing the complainant with a service under the Equal Status Acts.

The Respondent outlined that the complainant could not satisfy the burden of proof required under Section 38A of the Act. They argued that no comparator had been offered or any nexus shown between the alleged conduct of the Respondent with the protected grounds of race, gender or housing assistance.

By the time, the hearing date evolved in this case, I had prepared questions and clarifications for each party in the context of my investigation. I was disappointed not to meet the complainant on this occasion. I had read the extensive paper work submitted and I required significant clarification on the outline of her claim as it seemed at first glance to be inextricably linked with a parallel higher courts matter. However, as a first step I wanted to be certain that the ES1 form or its equivalent had been submitted. In accordance with Section 21(2) of the Acts, a complainant is obliged to follow a certain course of action before seeking redress under this section

(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 occurrence, notify the respondent in writing of

(1)   The nature of the allegation

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

And

(b)   May in that notification, with a view to assisting the complainant in deciding whether to far the case to the Director of the WRC or the Circuit Court, question the respondent in writing to obtain material information and the respondent may, if the respondent so wishes, reply to such questions.

My jurisdiction to process this case is embedded in these pre-requisites .

I am satisfied that the precursor requirements of Section 21 (2) have not been met in this case nor has an application been raised in accordance with Section 21(3) of the Act. The document submitted by the complainant referred to in the Respondent submission date March 15, 2018 does not satisfy the strict requirements of the Act. Neither can I locate any ES1 or its equivalent amongst the complainants submitted papers .

It is important for me to mention that the WRC publishes an excellent Users Guide on the Equal Status Acts for both complainant and Respondent. This is a very helpful navigational tool.

I have heard the Respondent oral and written submission in the case and I find that the claim has fallen at the first hurdle, that of the statutory pre-notification of the complaint to the respondent in accordance with Section 21(2) of the Act.

The Claims are not well founded.

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.

As part of my investigation under Section 25 of the Act, I am obliged to hold a hearing. I am satisfied that the complainant was notified of the arrangements for the hearing. I find that given that the Complainant had received a clear explanation of the need to attend a hearing in the case, the complainant’s failure to attend such a hearing was unreasonable in the circumstances and that any obligation under Section 25 has ceased. As no evidence was given at the hearing in support of the allegation of discrimination, I conclude the investigation and find against the complainant.

Discrimination, Victimisation, Harassment, Reasonable Accommodation.