ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00035190
Parties:
| Complainant | Respondent |
Parties | Izabela Chelchowska | 1st Class Letting & Property Management Limited |
Representatives | Self-represented | Respondent Director |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00039303-001 | 21/08/2020 |
Date of Adjudication Hearing: 19/09/2022
Workplace Relations Commission Adjudication Officer: Máire Mulcahy
Procedure:
In accordance with Section 25 of the Equal Status Act, 2000, following the referral of the complain 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. The changes arising from the judgment of the Supreme Court in Zalewski v. Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 on 6 April 2021 were notified to the parties who proceeded in the knowledge that hearings are to be conducted in public, decisions issuing from the WRC will disclose the parties’ identities and sworn evidence may be required.
The respondent attended remotely; the complainant attended in person.
I gave the parties an opportunity to be heard and to present evidence relevant to the complaint.
Oral evidence was presented by both the complainant under affirmation, and by the respondent Director under affirmation. The parties were offered the opportunity to cross examine on the evidence submitted.
The complainant was self-represented. An interpreter attended with her.
The respondent property management company was represented by the Director.
Background:
The complainant submits that the respondent discriminated against her contrary to section Sections 3 and 6 of the Equal Status Act 2000 (“The Act”), as amended by Equality (Miscellaneous Provisions) Act 2015, which introduced the “housing assistance grounds”. The last act of alleged discrimination occurred on 6/5/2020 when the respondent refused to provide her with the necessary documentation to secure Covid -19 rent support, a payment made available to tenants from the Department of Social and Family Affairs available during the period of the Pandemic. The complainant submitted this complaint to the WRC in a letter dated the 21/8/2020. The complainant submitted a competed form to the WRC on the 12/8/2021.
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Summary of Complainant’s Case:
Evidence of the complainant given under affirmation. The complainant commenced a tenancy in one of the properties let by the respondent agency in December 2016. Up until that point she paid the going rent for the property. In March 2020 she lost her employment and income due to the arrival of Covid -19. She asked the respondent a number of times in April 2020 to provide her with her with proof of ownership of the property. He initially stated that he needed time to get the details from the landlord, then later failed to provide her with the landlord’s name saying it was unnecessary though documents from the Department of Social and Family Affairs stated the contrary. This rendered her ineligible for rent allowance as the landlord’s name was an essential detail in her application to the Department of Social and Family Affairs for Covid -19 rent support. The last occasion on which he failed to provide the name was 6/5/2020 when he stated he had sent all details. The Department of Social and Family Affairs notified the complainant on 1/7/2020 that her application for rent supplement was being suspended owing to the failure to provide details of the landlord. The consequences of this was that she lost the rent supplement of €1035 per month for April - 4 August. She left the tenancy on 4 August 2020. She was uncertain as to the date of the ES.1 submission. The date on the form is the 14/6/2020, with the act of discrimination given a later date, that of the 19/6/2020. She also raised issues about money which she states was owed to her for painting the apartment. |
Summary of Respondent’s Case:
The respondent denies that he discriminated against the complainant contrary to the terms of the Act. Evidence of the respondent Director given under affirmation. The witness stated the complainant’s son telephoned, demanding information for purposes of securing rent allowance in an extremely aggressive fashion. The witness asked him if the request was for purposes of a Covid payment. The complainant texted the witness on the 17/4/2020, apologising for her son’s behaviour and asking for information concerning the landlord. He advised the complainant that he would seek information. He got the owner’s PPS number and passed it on to the complainant. He provided all other required information for purposes of enabling the payment of the rent supplement to the complainant. In late July, the complainant sent in notice of intention to vacate property which happened on 4/8/2020. ES.1 form. Contrary to what the complainant has stated, he received the ES.1 form on the 17 /7/2020 and not the 14/6/2020. He sent an ES. 2 form to the complaint on the 17/7/2020, copy submitted in evidence with date of receipt expressed as 17/7/2020 . As far as he was concerned, the termination of the tenancy was the end of the matter. |
Findings and Conclusions:
I am required to establish if the respondent engaged in prohibited conduct contrary to the requirements of section 3 (B)of the Act. Relevant Law. Compliance with section 21 Section 21 provides as follows: —" (1) A person who claims that prohibited conduct has been directed against him or her may, subject to this section, seek redress by referring the case to the Director of the Workplace Relations Commission………. (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.”
The complaint was unable to identify the date on which she submitted the ES.1 form. The date on the form is the 14/6/2020, with the act of discrimination given a later date, that of the 19/6/2020. The Act states “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” The respondent’s evidence at the hearing and on the form was that he received the notification on the 17/7/2020. The complainant in possession of this date and document since July 2020 at no stage challenged this date. I find therefore that the date of notification is 1- 2 days prior to the 17 /7/2020. Compliance with section (2)(a) required the complainant to submit the ES.1 notification by 5/7/2020 Section (3) (a) allows for an extension of a further two months where “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,” I advised the complainant of section 3(a). The complainant advised that the delay in sending the ES.1 form was due to the fact that she was pregnant at this time and that, additionally, Covid-19 militated against compliance with section 2(a). The Labour Court Decision in Cementation Skanska -v- A Worker DWT0425 addressed the issue of reasonable cause for a delay in complying with statutory time limits as follows: “It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time. The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons” At the hearing the complainant stated that she was pregnant during this time. Her child was born on the 5/10/2020. She gave no evidence of any medical complications or any evidence that it was other than a normal pregnancy. In fact, she submitted her complaint in a letter to the WRC on the 21/8/2020 while she was pregnant. Hence neither her pregnancy nor Covid -19 prevented her from submitting her actual complaint to the WRC during this period. Therefore, I do not find that this amounts to reasonable cause. My jurisdiction in this case rests on compliance with section 21(2). I find, therefore, that I do not have jurisdiction to hear this complaint |
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.
I do not have jurisdiction to hear this complaint. |
Dated: 13th December 2023.
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
Key Words:
Non- compliance with section 21 of the Act. |