Complainant

Respondent

Parties

Katrina  Phillips

Amy Cunningham

Representatives

  Self Represented

Ciaran P Murphy BL instructed by J P O’Donoghue 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-00052229-001

12/08/2022

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and a witness for the respondent gave their evidence under affirmation. Both were cross examined. An additional witness for the respondent took the affirmation but was not called upon to provide testimony.

A member of the public was facilitated to attend the hearing.

The complaint was submitted following a hearing at the Rental Tenancies Board (RTB).  Certain matters submitted related to issues that were outside the remit of the WRC, although dealt with by the RTB and these were noted during the hearing.

The complainant submitted that she was discriminated against by the respondent when they would not accept her application for HAP and that she was discriminated against on the basis of the colour of her skin.

In response to the preliminary issue raised regarding the ES2 form, the complainant noted that the respondent was well aware of the issue that had arisen as comprehensive documentation was submitted the respondent in relation to the case before the Residential Tenancies Board.

The complainant gave evidence that there were issues with the house that she was occupying.  It had not been given a BER rating and she was quite reluctant to bring up issues with her landlord. She said that she received threatening and aggressive phone calls from the landlord and required a colleague or her partner to be present when she received phone calls.  The complainant noted that the previous resident of the house had no issues, and that she believed that this was all down to the colour of her skin. The complainant stated that she was told that if she didn't stop asking for the heating to be fixed, her lease would be terminated. She noted that the landlord would not engage with the Threshold organisation and that she was victimised in terms of taking a case to the RTB.

The complainant stated that her landlord said that she couldn't engage with HAP because the historic nature of the house meant that it would need substantial renovations to comply with the standards required by HAP.  The complainant wondered why she couldn't do those renovations and noted that her landlord refused to deal with HAP but that her reason for not engaging is not good enough.

Under cross examination the complainant confirmed that she engaged with the landlord in advance of moving into the house and confirmed that initially a rent was first six months but was then extended. She confirmed that the landlord was hesitant in taking her payments and dealing with HAP as the building is a listed building and ‘you can't simply drill holes anywhere in a listed building’. The complainant confirmed that after she moved out, she was offered building a year later under a fresh tendency if she wanted it.

The complainant said everything was fine up until the issue arose with the heating. She noted that she could not remember the exact wording that was used but that it was something along the lines of ‘there's nothing wrong with the house your skin isn't able for the house’ and that there were other things that she could not remember and would rather not say. When the respondent’s representative put it to her that she should be able to remember rather than simply saying a comment was “along the lines of …” she said that she heard this every day in her head and that it was said to her that there was nothing wrong with the house the problem is your skin.

In closing submissions, the complainant suggested that there was a reasonable presumption that discrimination happened to her because there was no evidence to state that it didn’t happen.  The complainant submitted that she suffered from anxiety and depression and that she was harassed and victimised in relation to these matters.  She noted that she faced challenges and was contemplating returning to Australia.

She noted that from her experience she believed that discrimination did occur and that she faced a hostile environment.  She noted that she has not tried to explain the intimidation that occurred but that it should be taken into account.

As a preliminary matter, the respondent submitted that no Form ES2 has been submitted and accordingly, the WRC is precluded from hearing matters.

The respondent denied discriminating against the complainant on any basis including that of her skin colour or that she refused to deal with the Housing Assistance Payment scheme.

The respondent gave evidence that she advertised the house and sought references in advance from prospective tenants. She said that initially she gave the complainant a six-month contract and that there were no issues between them aside from some difficulties with bank payments when making the rent.  She also said that the contract was extended after the initial six month.  The respondent stated that the house was not in an appropriate condition to qualify for a HAP payment.

In relation to the phone call over storage heaters the respondent noted that she did say, “if you want to move out, move out!” and that it was a 450-year-old listed building and very little could be done in terms of structural renovations. She noted that a stove had already been purchased and was due to be delivered and installed in the days following their turbulent phone call.

The respondent stated that she is not a racist and noted that if she was the tenants would not have been allowed in initially nor would their contract have been extended. She also noted that following the refurbishment of the house it had been offered again to the complainant, but she had received no response from her in relation to the offer.

Under cross examination the witness stated but she accommodated the complainant as much as she could and noted that there was nothing wrong with the heating and said that two days later a stove would have been installed.

The respondent stated that her justification for ending the tenancy was the complainant's demeanour and attitude she noted that she conducted herself in a professional manner and when queried why she had to attend in person the complainant knows that she was required to serve a notice to quit in person. The respondent noted that she tried to sell the house, but it didn't achieve the sale price she was looking for, so it was later refurbished, and upon completion, it was offered back to the complainant.  The complainant did not respond to this offer.

In closing submissions, the respondent noted that she has been in business for twelve and a half years and that the text submitted prove that there had been friendly relationship which then turned toxic.  The respondent noted that at no point was nationality, or ethnicity raised.  It was suggested that the complainant has put forward a false narrative and that she feels slighted.  The respondent noted that in circumstances where the burden of proof has not been established, the benefit of the doubt must go to the respondent.  It was submitted that the case revolves around two statements which were alleged to have been made but which were not supported by witness testimony, although allegedly there were witness who could have corroborated this, but no-one came to give evidence.

As a preliminary matter, the respondent submitted that the Equal Status Act requires the submission of a form ES1 within 2 months and only where exceptional circumstances prevented the complainant notifying the respondent could this be varied. 

Section 21(2) of the Act outlines the following:

(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 Commissioner, 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 Commissioner, 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 Commissionor, 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.

In relation to this compliant, the complainant submitted that the respondent was well aware of the facts and nature of allegations against it as a comprehensive submission had been made to the RTB.  In the circumstances, I consider that Section 21 (3)(b)(i) & (ii) are relevant to consideration of this issue.

Having regard to the relevant circumstances, I am satisfied that the respondent was aware of the circumstances of the alleged prohibited conduct and that the respondent, and her legal team are not at any risk of prejudice in their ability to deal adequately with the compliant.  Accordingly, I find that it is fair and reasonable in the specific circumstances to direct the notification requirement under Section 21(2) shall not apply in relation to this compliant.

Turning to the substantive issues, the complainant outlined a situation where there were multiple issues wrong with the house that she was renting.  She outlined a series of events which were dealt with at a hearing of the Rental Tenancies Board.  Most of these issues are outside the remit of the WRC to consider under the Equal Status Act, however two issues stand out for consideration in this forum: the first is the issue concerning refusal to accept HAP, the second revolves around the use of allegedly discriminatory language.

From the testimony of both parties, it became apparent that the Housing Assistance Payment scheme was not forthcoming due to the age of the house and the work that was required to be done to the house to bring it up to standard.  The complainant outlined a number of remedial actions that were required to be undertaken in order for the house to qualify for including under the housing payment scheme. 

Section 3(3B) of the Equal Status Act outlines that

“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”).

As the house did not qualify to be included in the HAP scheme, and the complainant was not in receipt of rent supplement, or housing assistance, she has not established that she can avail of the protections of the Act under this ground.  Accordingly I am not satisfied that the complainant has established facts from which discrimination may be inferred in relation to this ground.

As to the complaint of discrimination on the race ground, the crux of this matter comes down to whether the respondent said a comment along the lines of ‘this house doesn’t suit your skin colour’.  The complainant stated that the respondent said words to that effect.  This was denied by the respondent.

Having provided testimony, I found both witnesses to be reasonably credible.  The complainant was not able to provide perfect recall of the words used in the conversation merely an assertion as to the type of phrasing used.  There was evidence given by both parties of the deterioration of the rental relationship and that there was no recollection of the exact wording used by either party. 

The complainant claimed that there were witnesses to corroborate her version of events including her husband and a work colleague.  Neither the complainant’s husband nor work colleague attended the hearing to give their testimony.

On balance however I prefer the respondents account of the phone conversation particularly where it is alleged by the complainant that there were witnesses (her partner and a colleague) but neither were forthcoming.   The was no evidence to support either version of the conversation.   Accordingly, I am not satisfied that the complainant has established that the comment on the race ground was made.

Section 38A (1) of the Equal Status Act states as follows:

 Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary.

I am not satisfied that the complainant has established facts from which it may be presumed that prohibited conduct has occurred such as to require the respondent to prove the contrary.  Therefore, I find that the complaint is not well founded.

Having regard to all the written and oral evidence presented in relation to this matter, my decision is that the complaint is not well founded.

Equal Status – Race ground – Housing Assistance ground – facts not established – complaint not well founded.