Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00018703-001

23/03/2018

The complainant is an American and is also black. She is claiming that she was discriminated against and harassed on the race and the housing assistance grounds by the Respondent contrary to the Equal Status Acts. She notified the Respondent of the complaints on the 15th February 2018. A response was received on the 23rd March and she referred her complaints to the WRC on the 23rd March 2018.

The Complainant said that she and her husband rented a house from the Respondent in or about the 8th May 2017 and lived there together with her husband, 2 children and her mother. Towards the end of 2017, it was necessary for her to apply for rent supplement as her husband lost his job. She got the forms and asked the Respondent to sign them on the 13th December 2017 and the Respondent returned the signed forms shortly thereafter.   The following day the 15th December 2017, she received notice to leave the property by the 14th January 2018. On the 9th January 2018, the respondent notified her of a viewing of the property for a new tenant. In response the Complainant complained about receiving notice to quit. On 12th January and after notifying the Respondent of the approval for rent supplement she received a further communication from the Respondent extending the date for leaving the property to the 30th January 2018.  

The Complainant said that after she received the notice to quit the property, she and her family were subjected to intimidating and hostile treatment particularly from the Respondent’ son (Mr. A). He lived in the adjoining house and was appointed the point of contact at the time they signed the lease and he was in control of some of the utilities such as the oil for the heating system. On the 10th January the Complainant emailed the Respondent explaining that her husband had been laid off and hence the reason for the financial difficulties and the need for the rent supplement. She confirmed that the rent supplement had been approved and the date it would be paid. The Complainant said that she also raised a number of difficulties she had with the Respondent’s son inter alia problems with the water being switched off and having to wait until his son came home from work to have it switched on, demanding back heaters he had loaned them when he knew they had no heating because there was no oil in the tank, taking away and destroying a trampoline and a basketball net which he had given to the children, and harassing the children by driving his truck up to them and blowing his horn and stopping them from playing in the snow.   The complainant said in a response to her complaints the Respondent called her “street brawlers” for mentioning the problems which she was having with Mr. A. She said that he also accused her about being imprudent with money.

The complainant said that she got less than 24 hours’ notice that construction was commencing in the courtyard of the house causing dust. She said that on the 14th of January they lost power and the Respondent provided no assistance nor did the Respondent provide a key to open the electronic gates to the house. On the 23rd January 2018, the Complainant said she got an email telling her that the intercom and keypad for the gate would be disconnected leaving them with only one clicker to open the gate which was very inconvenient.

On the 29th January the respondent refused to allow them to purchase oil for the oil tank which they shared with Mr. A and instructed them to pay Mr A who had control over the fuel tank for the oil.

On 12th February 2018 Mr. A blocked her car in a car park where she parked to take her children to the playground and started yelling at her. He then blocked the driveway to her home and she could not enter the property. He blocked her way for about 20 minutes and then started yelling profanities at her and called her a “black cunt” and a “black bitch”. She said that she felt threatened and feared for the safety of herself and her children and reported the incident to the Gardaí.

The Complainant said that she had a very cordial relationship with Mr. A for the first 6-7 months but everything changed after her application for rent supplement.

The respondent stated that he rented the property to the complainant and her husband in May 2017. They signed a lease and the rent was due on the 8th of each month payable in advance. He noticed after about 6 months into the tenancy that the rent was not being received on the date due and the complainant was in arrears on a regular basis. On the 13th of December the respondent said that he got a voice message from the Complainant’s husband to say he had lost his job and he needed to apply for rent supplement. He requested that the forms he had put in the letterbox be signed by the Respondent and returned. The Respondent signed the forms and returned them within 2 hours of getting them. The rent for the 8th of December 2017 was in arrears and it was decided given the irregularity of the payment of the rent to terminate the tenancy. A notice of termination of the lease was issued on the 15th of December. The Respondent stated that the application for rent supplement did not influence the decision to terminate the lease. He said that he knew that the Complainant’s husband had lost his job but there was no guarantee that they would qualify for the rent supplement. The respondent stated that there was a lack of communications from the Complainant and she did not inform him that her husband lost his job for a month after it happened. The decision to terminate the lease was based on their rent payment record over the previous 6 months when they were in arrears on a number of occasions. The Respondent stated that they had a previous tenant who was 4 years into the tenancy and had to apply for rent allowance and remained in the house for a further 14 months.

The Respondent stated that he wrote to the complainant on the 12th January 2018 extending the date for terminating the tenancy to the 31st January 2018. The Complainant remained in the tenancy and referred a complaint to the Residential Tenancy Board regarding the notice received. She was not evicted and remained in the tenancy until May 2018.

The respondent denied that the Complainant was harassed following her application for rent supplement. The issues raised by the complainant her email of 10th January 2018 in relation to the electrical problems were resolved. In relation to problems with the usage of the oil heating, Mr A put forward a proposal to the Complainant in relation to resolving the issues between them. It was necessary to change the key pad and intercom system for opening the gate to a more secure system as people who did not have permission to be on the property were allowed in.

Legal Submission

The respondent’s barrister submitted that the complainant put forward insufficient evidence to establish a prima facie case of discriminatory treatment and harassment on the race and housing assistance grounds. It was submitted that any issues the Complainant had with the Respondent’s son were irrelevant as he is not a party to the proceedings   The Respondent was not made aware of any alleged harassment of the complainant and therefore he could not have remedied the situation.

It was submitted that the termination of the Complainant’s tenancy was not based on the fact that she was seeking rent allowance but for the failure to pay the rent on the due date. Furthermore, there was no guarantee that the rent supplement would be granted. Even after it was granted the Complainant continued to pay the rent late. It was submitted that the fact the Complainant and her family were allowed to stay in the house for 12 months indicates that the Respondent was not motivated by any intentional opposition to rent supplement. It was denied that the Complainant was discriminated contrary to the Equal Status Act.

The first issue for determination in this complaint is whether the Respondent discriminated against the Complainant under the “housing assistance ground” and the “race ground” contrary to Sections 3 and 6 of the Equal Status Act 2000 (as amended). Section 3(1) 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 would 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,”

…………..

(h) that they are of different race, colour, nationality or ethnic or national origins (the “ground of race”),

Section 3(3B) provides:

“For the purposes of section 6(1)(c), the discriminatory grounds shall (in addition to the grounds specified in subsection (2)) 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”).”

Section 6(1) provides: “A person shall not discriminate in- (a) disposing of any estate or interest in premises, (b) terminating any tenancy or other interest in premises, or (c) subject to subsection (1A), providing accommodation or any services or amenities related to accommodation or ceasing to provide accommodation or any such services or amenities.”

Section 6(1A) provides: “Subsection (1)(c) is without prejudice to- (a) any enactment or rule of law regulating the provision of accommodation, or (b) the right of a person providing accommodation to make it a condition of the provision of that accommodation that rent supplement is paid directly to that person.”

Housing Assistance

I note that the Complainant was a tenant of Respondent since May 2017 and sent a request to him on the 13th December 2017, to sign an application for rent supplement. The Respondent signed and returned the forms without delay, but two days later he issued a 30-day notice to the Complainant terminating the tenancy for reasons connected with the payment of the rent. I cannot accept that the reason for the termination was only due to delayed payments of the rent in some instances, particularly as these payments were delayed rather withheld or not honoured.

It seems that it is more than likely, from the proximity of the request to sign for rent supplement and the notice of the termination of the tenancy, that the reason was connected to the application for rent supplement. I note that the Complainant wrote to the Respondent after receiving the termination notice explaining the reasons for the application for rent supplement and providing him with Department of Social Welfare approval for rent supplement, but the Respondent did not withdraw the notice and only extended the termination by 2 weeks. It is surprising, given that the Respondent’s issues with the Complainant were about paying the rent on time and were the reasons given for the termination of the tenancy, the Respondent still choose to terminate the tenancy even though he now had confirmation that the rent supplement would be paid. I note in a letter, dated 8th February 2018, to a property agency, the Respondent said that he terminated the tenancy because of the late payments of the rent, the fact that the Complainant’s husband had lost his job and he did not believe that the tenants had the financial resources to continue with the tenancy. In fact, at this point and time the Respondent was well aware that the rent supplement had been authorised and was back dated to 1st December 2017. As the tenants were now able to discharge their liabilities the Respondent had without any logical reason continued to request the Complainant to leave. I am of the opinion therefore, that the issuing of the notice of the termination of the tenancy raises an inference of discrimination and was in reaction to the Complainants necessity to apply for rent supplement.   I am satisfied that the Complainant has established that she was treated less favourably than another person who did not require rent supplement would have been treated. Accordingly, I find for these reasons that the complainant has established a prima facie case of discriminatory treatment on housing assistance ground which the Respondent has failed to rebut.

Race Ground

I find that the Complainant failed to establish a prima facie case of discriminatory treatment on the race ground in relation to the notification of the termination of her tenancy.

Harassment

The complainant also claimed that she was harassed on the race and housing assistance grounds following the application for rent supplement.

She said that she was harassed by both the respondent and his son (Mr. A) who lived in a separate apartment in the house with some shared utility services. Section 11 provides:

“—(1) A person shall not sexually harass or harass (within the meaning of subsection (4) or (5)) another person (“the victim”) where the victim—

(a) avails or seeks to avail himself or herself of any service provided by the person or purchases or seeks to purchase any goods being disposed of by the person,

(b) is the proposed or actual recipient from the person of any premises or of any accommodation or services or amenities related to accommodation, or

………………

(4) A person’s rejection of, or submission to, sexual or other harassment may not be used by any other person as a basis for a decision affecting that person.

(5) (a) In this section—

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

………

being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.”

Vicarious Liability

The Complainant said that Mr A was the contact person in relation to issues arising and this was made clear to her when she commenced the tenancy. It was submitted on behalf of the Respondent that anything that happened between the Complainant and Mr. A was irrelevant as he was not the Landlord. I note that the Respondent and his wife said in evidence that Mr A who lived on the site was the point of contact for the Complainant in relation to issues arising in the tenancy as they were not technologically minded.

Section 42 of the Equal Status Act states in relation to vicarious liability.

42.—(1) Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employee’s knowledge or approval.

(2) Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that other person.

I am satisfied from the evidence that Mr. A was acting on behalf of the Respondent and he was the point of contact for the Complainant in relation to issues around the utilities. I am satisfied having regard to S. 42 cited above that the Respondent is vicariously liable for the actions of Mr. A

Harassment on Housing Assistance Ground

The complainant submitted that the Respondent’s and Mr. A’s interactions with her were hostile after she claimed rent supplement. I note that the Complainant emailed the Respondent, in response to his emails regarding the request to sign the rent supplement form and her alleged lack of candour re her financial situation, with an explanation for the delay in paying her rent and the need to apply for rent supplement. I note in that email she raised a number of issues including the treatment of her and her children by Mr A. in response email I note that the respondent in dismissing her complaints the respondent referred to “street brawlers” and made disapproving comments about how she spent and managed her money.

The tone and contents of the emails sent to the complainant in response to her explanation for the delay with her rent and the need for the application for rent supplement were not conducive to fostering or keeping a good relationship with her. Equating complaints about the actions of Mr. A to a “street brawler” is completely unacceptable.  I am satisfied that the treatment of the Complainant by the Respondent and Mr. A changed after her application for rent supplement which had the effect of creating an intimidating and hostile environment. I am satisfied this treatment constituted harassment on the housing assistance ground.

Harassment on the Race ground

The complainant said that she was subjected to abusive behaviour and comments by Mr. A when she parked in a carpark in order to take her children to the playground. She said this occurred on the same day that Mr. A complained to her about the rubbish bin being left outside after collection. She said that he blocked her car and refused to let her leave and yelled abuse at her. She said that she then drove home to find Mr. A’s truck blocking the gate. She said Mr. A came to the window of her car and yelled threats at her. She said that he blocked her from entering the gate for about 20 minutes. He shouted profanities at her and called her a “black cunt” and “black bitch” The complainant said that she felt threatened and intimidated she believed that her safety and that of her children and family was at risk as he was living next door to her.

Mr. A did not give evidence to the hearing. It was submitted on behalf of the Respondent that the alleged incidents were not brought to his attention, but I note that this incident was brought to the attention of the Respondent in the Complainant’s notification of her complaints as required under the Acts.    

I am satisfied on the evidence of the Complainant that Mr. A subjected her to hostile and intimidating environment and called her offensive names which constitutes harassment within the meaning of Section 11 of the Act. The offensive names called to the complainant referred to her colour and therefore constitutes harassment on the race ground. I find that the Complainant has established a prima facie case of harassment on the race ground which the respondent has failed to rebut.

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 was discriminated against on the housing assistance ground and

that she was harassed on the housing assistance and race grounds contrary to the provisions of Section 11 of the Act.

Under section 27(1) of that Act 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. In considering the amount of compensation that I should award, I have noted the effects of the discriminatory treatment has had on the Complainant. I note the serious nature of the abuse and harassment on the race ground experienced by the complainant which she believed put the safety of herself and her family at risk. In the circumstances, an award of €12,000 is appropriate.

I order the Respondent to pay to the Complainant the sum of €12,000 (twelve thousand euro) compensation for the discriminatory treatment and harassment.

Equal Status Act, Section 3 & 5, Housing Assistance Ground, Race Ground, Section 11 Harassment