Complainant

Respondent

Parties

Joselyn  King

Lisa & Michael Furlong

Representatives

Sheila O'Reilly  of THRESHOLD

John G Murphy of  John A. Sinnott & Co. Solicitors 

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00048731-001

17/02/2022

The issue in contention was the alleged Discrimination and Harassment of the Complainants by the Respondents. It was alleged that the issue began initially in a refusal to accept HAP payments which then lead to a pattern of Harassment from November 2020 to late 2021. This was strongly denied by the Respondents.

The Complainant gave an Oral Testimony supported by her Partner, Mr. Piotr Pedzisz. A written submission was also submitted. The Chief Spokesperson was Ms. S O’Reilly of THRESHOLD.

The Tenancy began on the 30th of August 2020.

Soon afterwards the Tenants/Complainants experienced financial difficulties (November 2020) and requested that the Respondents accept HAP payments.

The Respondents replied that “No I am not open to HAP” with further Texts saying that “We do not accept HAP”. Text Messages were presented in Evidence. Discussions followed and a higher rent of €1,000 per month was provisionally agreed. The Respondents continually referred to “Tax issues” that would be brought to light if they went into the HAP Scheme.

A Notice to Quit was served on the 23rd July 2021 with an expiry date of the 25th October 2021. On that date a large agricultural tailer was parked against the front door (photos supplied) and a campaign of serious harassment commenced.  A large skip size bag of sand was placed in the driveway with all handles cut off to prevent easy removal. (photos supplied) The electricity supply was interfered with/cut off on two occasions for example. Members of the Respondent family arrived (27th October 2021) at the House wearing black clothing, wearing black masks and carrying large tools, at the House, to intimidate the Complainants. Only the speedy physical intervention of the local Gardai prevented serious intimidation taking place. The Complainants gave a Sworn Statement to Gardai (presented in evidence) in relation to the event.

The Complainants alleged this campaign of harassment was due to the Respondents’ negative reaction to the HAP proposals. It was clear from November 2020 that if they had continued to pay, without HAP, they would still be in the property. A dispute arose over the correct amount /payment of rent due from March 2021. The Complainants completely stopped paying rent from August 2021.

The matters became the subject of a Residential Tenancy Board (RTB for convenience) adjudication case No 1021-73591 -finding issued on the 27/04/2022.

The Respondent principal, Ms F, gave Oral testimony and a written submission was received. Mr Murphy, Solicitor was their Spokesperson.

Mr Murphy argued that the Property had been rented, at a rent of €850 per month, in August 2020 with no reference to HAP. The tenancy was in the name of both the Complainant and her Partner, Mr Piotr Pedzisz. He was employed in a local bakery, and she was a live at home parent.

The Complainant, Ms K, approach Ms F in November 2020 seeking to change the Tenancy to a single name, hers, and thereby facilitate a HAP application. Ms F was unhappy with this as one of the reasons for accepting the Complainants as tenants was that Mr P was fully employed in a substantial job locally. If he was no longer a tenant, the sound financial basis of the Tenancy would be uncertain. Ms F, in her Oral evidence, accepted that she had indicated to the Complainants that if the rent was increased to €1,000 per month, she might accept HAP.

A dispute developed over the payment of the Rent and no rent was paid from August 2021

In July 2021 a legally proper Notice to Quit was served on the Complainants and after some dispute, including a reference to the RTB, the property was vacated in January 2022

As regards to incidents involving the parking of large agricultural trailers and bags of sand in the driveway of the House in late October this was perfectly acceptable as the Complainants notice to quit had come into effect in October. The sand was for renovations to the property and the parking of the agricultural trailer was perfectly acceptable on their own property. The unofficial cutting off of the electricity supply was something the Respondent knew nothing about. The version of events regarding family members on the 27th October was a complete exaggeration by the Complainants.

In conclusion the Respondent stated that they had no issues with HAP as a scheme. They had another HAP tenant since August 2021 - evidence was presented to this effect.

The issue in this case was a straightforward Landlord /Tenant issue. The tenancy had been taken out in two names, Ms K and Mr P.

The request to change this to a single name, that of Ms K, had been unacceptable as she was not in any employment. Mr P was the main earner. The issue of the tenancy and the payment of agreed Rent had escalated into a dispute that eventually ended up with the RTB.

 HAP had nothing to do with the case. No discrimination could have taken place as HAP was never involved.

3:1       The Law and Legal precedent.

Section 5 (3)B of the Equal Status Act 2000 applies.

(3B) 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”).

Discrimination is set out in Section 3 (1) of the Act.

(3B) 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”).

However, all cases rest on their own evidence and factual background. This must be examined next.

3:2         Consideration of Evidence presented.

In this case, already well ventilated at the RTB in April of 2022, evidence was given under sworn Oath and Affirmation. Text messages were presented in evidence and not denied.

The key issue was the question whether or not this was a legitimate Landlord/Tenant tenancy dispute case not involving HAP or was the refusal to accept HAP a key initiating factor in the dispute.

Guidance can be taken from Safety, Health and Welfare Act 2005 case , Toni & Guy Blackrock Ltd v Paul O’Neill [2010] ELR 1 where the Labour Court stated

“Where there is more than one causal factor in the chain of events leading to the detriment, the commission of a protected act must be an operative cause in the sense that ‘but for’ the Claimant having committed the protected act he/she would not have suffered the detriment … the Claimant must establish, on the balance of probabilities, that he made complaints concerning health and safety. It is then necessary for him to show that, having regard to the circumstances of the case, it is apt to infer from subsequent events that his complaints were an operative consideration leading to his dismissal. If those limbs of the test are satisfied it is for the Respondent to satisfy the Court, on credible evidence and to the normal civil standard that the complaint relied upon did not influence the Claimant’s dismissal.”

This has become known colloquially as the “but for” test and has seen application in many Employment Rights and Equality/Equal Status cases. It can be applied, with caution, to this case.

It was clear that the Complainant raised the issue of a HAP application in early November 2020.

The Text messages, in evidence, from the Respondent were absolutely direct and clear cut. HAP was not acceptable to them.

Text messages from November from the Respondent on or about the 14th of November 2020 were presented in evidence.

“No I am not open to HAP. It was never mentioned at House as you and Peter were not in HAP. I am only happy to except rent without HAP. I had other tenants that told me they had HAP, but I did not accept them. Its your choice you can stay without HAP, or you can look for something else”

Various other versions of this message were also presented. It is important to note that they were not challenged as to their veracity or origin by the Respondents.

Taking the “but for” test referred to above, it is, to quote the Court, a transfer of the Burden of Proof to the Respondents.

If those limbs of the test are satisfied it is for the Respondent to satisfy the Court, on credible evidence and to the normal civil standard that the complaint relied upon did not influence the Claimant’s dismissal.

Dismissal is obviously not an issue here but the actions of the Respondent that followed the HAP application certainly are.

The immediate suggestion of a Rent increase (€850 to €1,000) to cover “Tax issues” from HAP was the first detriment proposed and the dispute that began over the Rent payment method of Cash in Hand or Bank transfer was additional.

The Notice to Quit on the 23rd July 2021 was deemed to be proper by the RTB. (Adjudication finding No 1021-73591 issued on the 27/04/2022.) However, the RTB did comment that the Respondent

 “Family members and or Agents significantly interfered with the peaceful occupation between October 2021 and January 2022”.

The RTB did however additionally state that

“As to the allegation the Termination notice was served as a result of their request for the Landlord to accept HAP, this is not accepted, however it is clear the Landlord refused to accept HAP and stated this on a number of occasions”.

It was clear that HAP was unacceptable in November 2020.Applying the “but for” test the Adjudication view has to be that the refusal to accept Hap was the initiating factor in the rest and tenancy disputes that followed. The RTB did comment that the Tenants were “Intimidated, living in fear”.

The Oral evidence, on sworn Oath of the Complaints, reiterated this position.

The Oral evidence of the Respondent Principal, Ms F, did not convince, from an Adjudication point of view , that the HAP refusal, as not directly related to the case.

3:3       Summary

Accordingly, having studied the written Submissions and considered the Oral Testimony, under Oath and Affirmation, from both Parties the Adjudication view is that Discrimination against and Harassment of the Complainant took place.

The Harassment was of a particularly egregious nature.

HAP, Discrimination.