ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00017228

Parties:

Complaint:

Date of Adjudication Hearing: 09/09/2019

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

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

Background:

Summary of Complainant’s Case:

Summary of Respondent’s Case:

The Respondent is an Irish Citizen, temporarily resident with, her family in a separate jurisdiction. On 11 October,2018, she filed a defence to the claim wherein she disputed any allegation of discrimination. She submitted that the baseline rent of €800 per month has risen to €860 per month in August 2017 by agreement. This amount was completely out of kilter in terms of market forces and she had made reasonable efforts to obtain a market value increase from 2017 onwards.

On a Preliminary issue, the respondent approached the hearing, seeking confirmation of just what the complainant was accusing her of? I asked if she had had the opportunity to consider the ES1 form sent to her by the complainant? She stated that she had no clear recollection of receiving this document by email or surface mail. The Respondent undertook to check her file and revert to the WRC on this point.

I passed the copy of the ES1 from my file for her attention and emphasised that this was the antecedent document in the claim which, if served correctly and in accordance with Section 21 of the Act , offered the parties an opportunity to address the points of concern prior to referral to the WRC .As the respondent had no clear memory of receiving the document, she confirmed that she had no clear memory of filing a response at any time either through ES2 or otherwise .

On another point, the respondent took the opportunity of expressing her complete dissatisfaction that she was expected to attend a hearing in the case. She stated that she was only home in Ireland a short time and was on her way to the airport to travel back home. She reflected that she ought to have been allowed to present her defence by SKYPE or at that given the strength of her denial of the claim, which she supported by documentation in October -December 2018, the matter could have been disposed of short of a hearing.

The Respondent presented her response without the benefit of a file of documents. I endeavoured to share any documents as they were discussed and referred to during the hearing.

The Respondent detailed that she was au fait with the HAP system as she had another tenant who had been in receipt of this support for several years. She viewed the scheme in a positive light.

The Respondent submitted that she had fully supported the complainants application for HAP in 2017 .She confirmed that there had been some administrative lags in terms of the required documents to be submitted on her side , but stressed that she was very keen to obtain the certainty of HAP for her property .She had never refused HAP to the complainant .She contended that the complainant had not actively pursued the application with the Council , whose ultimate gift it was to grant the award .

The Respondent explained that she had experienced a major personal loss in 2017 and at least one of the documents necessary for HAP was delayed as a result. She submitted emails which demonstrated a pursuance of updates on the complainant’s application for HAP during 2017. The Respondent told the hearing that she was offended by the complainant’s assertions that she may not have been tax compliant and this may have been a contributory factor for the delay in processing the application for HAP. The Respondent exhibited a tax clearance certificate.

The Respondent stated that she was subsequently advised by the City Council that the 2017 HAP application had been withdrawn by the complainant. She did not have a corroborative document from this time.

On her return to Ireland in May 2018, the respondent sought to address the low rent rate with the complainant. She contended that it was very much lower than market rate and she understood that the complainant had agreed to a 4% rent increase until, without discussion, the case was placed before the Tenancies Board where she was found to have relied on an old notification template which deemed the complaint of rent increase as valid. She invited the complainant to move out if she was not happy with the rent.

The respondent outlined that she was approached by the complainant to support another application for HAP on May 14, 2018. She completed Section B as before and submitted that she passed this back to the complainant. She confirmed that she had not received any feedback on the administrative journey of this form within the application system.

The Respondent and her family decided to relocate back to Ireland later in the 2018. In early October, she served notice of eight months termination on the complainant. On her written submission, she submitted that “with due respect, I see no point in wasting energy applying for the HAP for a few months and feel that it would be in the complainant’s interests to find a long-term home for herself and her children rather than applying for it at my house “.

The Respondent submitted that she then found a buyer for her property and received advice that she should leave her notice to terminate intact for the earlier reasons rather than changing it to a house sale. The house has since been sold and the complainant moved out three day short of the termination notice in June 2019.

The Respondent expressed a high level of dissatisfaction that she had become a mark for complaints made by the complainant to two external bodies. She reflected that the complainant had been party to repeated arrears over the years which she believed had been addressed fairly. She contended that she had been blocked from getting back to her home by a difficult tenant.

The respondent told the hearing that she had hoped for an immediate outcome to the complaint. She had been terribly upset to be accused in the wrong and was about to embark on a long journey back to her current home in a separate jurisdiction.

During cross examination, the respondent did not furnish an answer to the complainant when she requested when she had submitted the Landlord supporting documents which accompany Section B of the application process.

The Respondent confirmed that rent did not rise above €860 but she had sought a private arrangement with the complainant of €1,100 with HAP support to balance the impact. She submitted that she had sought to negotiate on this amount.

The respondent was asked to detail the chronology of the second application for HAP in 2018 from her perspective. She stressed that she had completed the section B form, dated it as 25 May 2018 and had confirmed that the form constituted a second application. She had no recall of any events around 14 August where the complainant alleged she had been refused HAP.

In response to the adjudicators request, the respondent furnished a supplementary City Council document post hearing which she submitted served as a confirmation that the complainant had not made a second application for HAP once the contents of the initial application was returned to her in May 2018. She also added that she had followed up on the HAP application on several occasions.

The Respondent remained silent on whether she had received the ES1 form on 20 August 2018.

Findings and Conclusions:

I have read both parties written submissions in this case. Both parties were unrepresented, but both had clearly taken expert advice prior to their presentations. I have also listened very carefully to both parties as they outlined the chronology of events which accompanied the case from each perspective.

I found it regrettable that neither party chose a representative in this case as the circumstances which surrounded the case were highly charged and emotional and would have benefitted, in my opinion from a more objective and less personalised approach in communication.

It was clear to me that both parties were traumatised by the events of the case as they saw them, and both brought a remnant of this trauma to the hearing. It is important that I reflect that Section 25 A of the Act provides a defined guide to representation in cases taken under this Act.

Of immediate and cardinal importance for me was the disquiet expressed by the respondent, both prior to and during the hearing on having to physically attend a hearing in this matter. The Respondent submitted that the case should have been dismissed once the early rebuttals were furnished by her.

In addition, she made two references to her intention to contact the media to re-affirm her dissatisfaction at being summoned to a hearing from a separate jurisdiction, when she had not discriminated against anyone. I asked her to respect the private and confidential nature of the hearing.

I appreciate that both parties are largely resident in two different hemispheres. This has caused scheduling challenges for the WRC but we all worked together to facilitate the parties with the earliest possible hearing date. I was happy to facilitate an early morning start for the parties.

I think it important and relevant for me to insert a brief commentary on the “inquisitorial process” surrounding this case. The right and duty of the decision maker is to adopt either a principally passive or alternatively pro-active approach to the identification of points at issue between the parties, the facts relied on and the applicable law relevant to the complaint.

In Mc Donald V Board na gCon [1965] IR 217, Natural Justice was” reincarnated” as constitutional justice by saying:

In the context of the Constitution , Natural justice might be more appropriately termed constitutional justice and must be understood to import more than the two well established principles that no man should be a judge in his own cause ( nemo iudex in causa sua) and let the other side be heard ( audi alteram partem)

Section 25 (1) of the Equal Status Act 2000 requires that a complaint submitted in accordance with the Act be investigated in private. A Hearing is a very important component of this investigation as it allows the decision maker to meet and hear directly from the scribe of the complaint in her early pursuance of the burden of proof as set down in Section 38A of the Act and to consider the responses furnished by the Respondent. It is also a very important vehicle for both parties to test the evidence adduced and for me to reflect on the result. It requires the physical presence of the parties, their witnesses (if any), the dossiers relied on and lastly, the Adjudicator, acting as decision maker.

In reflecting on the importance of Henchy J commentary in the seminal case of Kiely V Minister for Social welfare [1977]IR 267, where a Department Medical Assessors’ three-year-old written report was accepted while not providing an opportunity to cross examine the scribe:

Of one thing I feel certain, that natural justice is not observed if the scales of justice are tilted against one side all through the proceedings. Audi Alteram Partem means that both sides must be fairly heard. That is not done if one party can send in his evidence in writing, free from the truth eliciting processes of confrontation which are inherent in the oral hearing, while his opponent is compelled to run the gauntlet of oral examination and cross examination

Consequently, the hearing is  a valuable cornerstone for my investigation in this case and I am grateful to the parties for their attendance. The Respondent requested that she be permitted two support persons to accompany her during the hearing. I was happy to facilitate this. They both clarified that they were not witnesses.

The Complainant presented alone. I am satisfied that both parties were fully copied on each other’s correspondence prior to during and post  hearing.

Once I received the final submission from the respondent 3 days post hearing, this was furnished to the complainant with a requested response within 7 days. I am now 14 days post hearing and I have not received a replying submission from the complainant.

Preliminary Issue of Notification of Claim under Section 21 of the Act

An issue arose at the commencement of the hearing, where the respondent queried just what she was accused of? I asked her if she had received the ES1 form which the complainant submitted had been forwarded by Email on 20 August 2018 accompanied by an ES2 form? She said she had not received this document. I allowed the complainant to outline the details of the notification, which she confirmed was sent by email and followed up by a copy by surface, registered mail on 18 October 2018 as she did not have an earlier geographical address for the respondent in the separate jurisdiction.

I passed a copy of the ES1 form from my file to the Respondent and she re-affirmed that she had not seen it previously. She undertook to check her files and revert to me on her response to this key question. I spent some time outlining the pre-requisite nature of a notification under the Act. The Respondent made no further comment on this request post hearing and I have drawn inferences from this void in response.

Section 21 (2) (a) provides that the date of notification is the date on which the notification is sent, unless it is shown that the notification was not received by the respondent.

Section 21(4) goes on to provide that the Director of the WRC shall not investigate a case unless the Director of WRC is satisfied either that the respondent has replied to the notification or that at least one month has elapsed after it was sent to the respondent. The Complainant submitted that she sent the ES1 on August 20, 2018.

As there was a direct conflict at hearing on this vitally important issue, I undertook an extensive trawl through the collection of emails submitted by both parties. Many of which were not officially dated and other were significantly duplicated. However, I felt it important to probe the 500-page file on the notification of the prohibited conduct. Section 21 requires that certain steps on notification must be taken in the first instance by the complainant.

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

(a) shall, within 2 months after the prohibited conducted 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 ,

and

( b ) may in that notification, with a view to assisting the complainant in deciding whether to refer the case to the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court , question the respondent in writing so as to obtain material information and the respondent may, if the respondent so wishes, reply to any such questions.

(2A) For the purposes of subsection (2) the date of notification is the date on which the notification is sent, unless it is shown that the notification was not received by the respondent.

(3) ( a ) On application by a complainant the Director of the Workplace Relations Commission   or, as the case may be, the Circuit Court may —

(i) for reasonable cause, direct that in relation to the complainant subsection (2) shall have effect as if for the reference to 2 months there were substituted a reference to such period not exceeding 4 months as is specified in the direction, or

(ii) exceptionally, where satisfied that it is fair and reasonable in the particular circumstance of the case to do so direct that subsection (2) shall not apply in relation to the complainant to the extent specified in the direction,

and, where such a direction is given, this Part shall have effect accordingly.

  ( b ) In deciding whether to give a direction under paragraph (a)(ii) the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court shall have regard to all the relevant circumstances, including —

(i) the extent to which the respondent is, or is likely to be, aware of the circumstances in which the prohibited conduct occurred, and

(ii) the extent of any risk of prejudice to the respondent ’ s ability to deal adequately with the complaint.

(4) The Director of the Workplace Relations Commission or, as the case may be, the Circuit Court shall not investigate a case unless the Director of the Workplace Relations Commission or the Circuit Court, as the case may be, is satisfied either that the respondent has replied to the notification or that at least one month has elapsed after it was sent to the respondent.

(5) The Minister may by regulations prescribe the form to be used by a complainant and respondent for the purposes of subsection (2).

(6) ( a ) Subject to subsections (3)(a)(ii) and (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.

  ( b ) On application by a complainant the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court may, for reasonable cause, direct that in relation to the complainant paragraph (a) 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; and, where such a direction is given, this Part shall have effect accordingly.

The Complainant submitted that she emailed the completed ES1 form accompanied by a blank ES 2 form to the Respondent on August 20, 2018. She chose this method of communication as she did not have an address for the respondent in the separate jurisdiction. She submitted a copy of this ES1 form which was dated Augurs 20, 2018. She also attached a proof of registered postage €11.50 to a named address dated October 18, 2018.

The ES1 referred to two specific emails dated 14 August 2018: 8.28 hrs and 11.10 hrs. I am mindful of the noted time delay in communication time lines. Ireland, where the complainant was resident is several hours behind the separate jurisdiction where the respondent is currently residing and was residing on that date. I found a certain inconsistency in the reported content of these emails.

The Complainant had not submitted a fresh application for HAP on or before that date. During the Summer of 2018, the electronic communication between the parties appears to have been the sole method of communication in the wake of the meeting of 14-15 May 2018 when a proposed rent increase was muted by the respondent.

There were several references to the complainants stated intention to re-apply for Hap once the RTB issue had been exhausted. The Complainant has been unable to demonstrate that she made another application to HAP by means of Section A during 2018. The Respondent has demonstrated a completed part B which she says she forwarded to the Complainant. The Complainant argued the validity of this form at hearing as she believed that there were some administrative gaps in supporting documents, commencement of tenancy and quantum or rent recorded.

Thereafter, the email threads display a high level of inconsistent communication where agreements to rent increase of €995 for HAP purposes were revised by the complainant and action taken by the complainant in the face of these threats to an outside body. The eventual ruling on the revised rent increase was recorded as October 4, 2018.

The May to September 2018 period was also fraught with accusatory emails exchanged between the parties concerning repairs, arrears, deposits, threats of eviction and latterly a stated intention by the respondent to both take possession and/or sell her house.

From what I can gather from both the evidence and the email thread, this period also reflects the respondent efforts to chase up the HAP payment directly and seemed to add the quest for a Hap aided deposit also for the complainant. The parties clearly fell out on quantum of rent to be paid. The complainant contended that HAP, if granted was a fair payment for the respondent. The Respondent disputed this considering the market forces and sought a supplementary payment to HAP from the complainant. This proved a stumbling block and resulted in the parties ceasing the tenancy in June 2019, post notification in October 2018.

I had a difficulty in considering many of the emails submitted by the complainant as they were hand dated rather than electronically dated. The email dated by hand on 23 August 2018 attributed to HAP Employee was a particular case in point. No one from HAP clinic attended the hearing to corroborate that the Complainant had submitted her 2018 application, the Respondent was termed as not having submitted her part B.

I must now return to the parameters of Section 21 of the Act on notification of prohibited conduct in accordance with the Act.

As a first step and prior to notification of a prohibited conduct claim to the WRC, a complainant is required to action the terms of Section 21(2)(a) of the Act. The Complainant is adamant that she emailed this notification in the form of ES1 on 20 August, yet, I have not secured proof of this outside of the ES1 itself. The Respondent submitted that she did not receive any notification., either by email or surface mail and this was the justification for her seeking clarification of just what she stood accused of at hearing. I have reviewed the email communication dated 14 and 15 August 2018 and cannot identify a reference to the text of the ES1 form.

Instead, the complainant seems to be seeking to provoke a response from the Respondent on the topic of Hap. Given that the complainant has identified the date of most recent discrimination as 14 August 2018, I was unable to satisfy myself that she sent the ES1 form on 20 August 2018, as required. I did detect a reference to an ES1 an ES2, but not proof of sending. It did not assist that the respondent appears to have refused to engage by then.

I did, however, find a more focussed reference by the complainant to a complaint to the WRC dated 3 October 2018.

“ ….. I put a complaint to the WRC and hope it meets validation criteria and requirements “This was one day after the complainant submitted her complaint to the WRC on 2 October 2018.

I accept that the complainant did send the ES1 by surface mail to the respondent on 18 October 2018. However, this is not in keeping for the requirements that it must predate the complaint to WRC. It is regrettable that the parties did not engage on that topic at that time.

During the hearing, I explained   the options open for a relaxation of this rule in accordance with Section 21. The Complainant did not make any further submissions for an extension of time or a direction to dispense with the notification in the matter.

I have considered all the facts surrounding the circumstances of the notification of the ES1 in this case.

Section 21(2) (A) provides that the date of notification is the date on which the notification is sent, unless it is shown that the notification was not received by the respondent. Following the submissions of both parties and a careful review of the email thread, I cannot illicit proof of the ES1 being sent on August 20, 2018.

Rather, based on the A Post receipt of registered mail, it seems to me that the ES1 document sent on 18 October 2018, over 2 weeks after complaint was lodged with WRC, complies with the definition of the date of notification outlined above. The fact that the respondent has no memory of this is remarkable. I appreciate that relations had completely broken down between the parties at that point. This may have contributed to the blurred lines.

I found that the Complainant presented in a very vague manner at hearing and while given extra time to submit a copy of her application for Hap in 2018 (verified by her Hap clinic document dated 23 August) she has been unable to do so. She confirmed that she had received advice on her claim.

I am left to reflect on both party’s recollection of events surrounding the antecedent document in this case, the ES1 form. Given the breadth of the email dossier in this case, I think it is reasonable that I chased the core of my jurisdiction in the case. I must be satisfied that the ES1 or its equivalent was served on the respondent within the requested temporal limits and in accordance with the sequence required by the WRC, i.e. the ES1 must pre-date the complaint to the WRC.

I have concluded that proof of serving of the ES1 has been fixed at the period immediately following receipt of the registered letter dated 18 October 2018. This has resulted in my being denied jurisdiction in the claim as the complaint to WRC pre-dated the ES1.

I would like to conclude by addition of a rider at this late stage. I was deeply dissatisfied at the nature of the email communication exchanged between the parties in this case. I appreciate that both parties lead busy lives and I understand that each party faced separate human traumas during the lifetime of this case.

However, an email is insufficient communication in times of clear conflict and both parties resorted to unwarranted accusations and insults which drove an unbridgeable communication chasm between them. Emails are one sided communication and do nothing to engineer a basis for conflict resolution. Both parties would have been best served by reliance on more interactive modems such as phone calls, letters or indeed Skype which may have allowed each party an opportunity to be heard and understood much earlier.

As I submitted this decision, the complainant forwarded many emails for my attention. These were unsolicited outside my request for the Part A of HAP. I did, however, consider the copy of the ES1 form attested as sent to the Respondent. I am not satisfied that this supports Section 21 notification requirements. I regret that I have not found a basis on which to alter my findings.

Dated:   8/10/19

Workplace Relations Commission Adjudication Officer: Patsy Doyle

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