Complainant

Respondent

Parties

Jana Gogova

Residential Tenancies Board

Representatives

Self-represented

 Byrne Wallace Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00050588-001

10/05/2022

In the complaint form she submitted to the WRC on May 12th 2022, the complainant alleges that she was discriminated against by the RTB on the grounds of her gender, family status and her race and because she was in receipt of the housing assistance payment. 

The complainant provided me with a comprehensive book of documents at the hearing.  From my examination of these documents, I have summarised the events which led to this complaint:

Since June 2009, the complainant has lived in a flat at 103 South Circular Road, Dublin 8.  On October 31st 2019, she was informed by her landlord that he intended to sell the property and she was given formal notice that her tenancy would terminate on June 14th 2020.

The complainant claimed that the landlord did not intend to sell the property and on November 4th 2019, she applied to the RTB to challenge the validity of the notice of termination.  An adjudication hearing took place on March 4th 2020.  The adjudicator at the RTB found that the notice of termination of the tenancy was valid and the complainant was directed to give up the tenancy within seven days of the expiry of the emergency period set out in section 3 of the Emergency Measures in the Public interest (Covid-19) Act 2020.

In June 2020, the complainant appealed against the decision of the RTB adjudication officer.  A Tenancy Tribunal hearing took place on August 5th 2021.

On September 29th 2021, the RTB issued a Determination Order, finding that the notice of termination of October 31st 2019 was valid and directing the complainant to vacate the property at 103 South Circular Road within 35 days.  The Determination Order was sent to the complainant on October 4th 2021.  While the complainant alleges that she was discriminated against by the RTB on various dates, she claims that October 4th 2021 is the most recent date on which discrimination occurred.

On May 4th 2022, the complainant sent an ES1 form to the RTB, in which she claimed that she was discriminated against in the Tenancy Tribunal’s Determination Order.  On May 10th, she submitted this complaint to the WRC.

On behalf of the RTB, Mr Deegan raised the fact that, contrary to section 21(2) of the Equal Status Act 2000 (“the Act”), the complainant sent the ES1 form to the respondent more than two months after she received the Determination Order of the Tenancy Tribunal on October 4th 2021.  He further submitted that, as this complaint was submitted to the WRC on May 10th 2022, more than six months after the complainant received the Determination Order, it is outside the time limit set out at section 21(6)(a) of the Act. 

In accordance with section 21(3) and 21(6)(b) of the Act, the complainant has asked me to consider her application for an extension of the time limits. 

The complainant gave her evidence under oath and she did not require the assistance of the interpreter who she asked to be in attendance.

Explaining the reason for the delay, the complainant said that, when she got the decision of the Tenancy Tribunal, her health deteriorated.  She said that she felt very stressed and she attended her doctor and looked for counselling.  She had to wait for six months for an appointment with a counsellor, who she saw in May or June 2022.

The complainant received the decision of the Tenancy Tribunal on October 4th, 2021, and in November, she said that there was no electricity in her apartment for 10 days and she couldn’t use her laptop.  

When she received the decision in October 2021, the complainant said that she couldn’t afford to consult a solicitor and she contacted the Legal Aid Board for advice about what to do next.  She had to wait to be approved for legal advice.  In October 2021, she filled in an appeal form incorrectly, and she submitted an appeal to the Supreme Court instead of the High Court.  She looked for legal representation for her case in the High Court, but she wasn’t granted representation.  She said that she then got an idea that she wanted to bring her case to the WRC.  She contacted the Free Legal Advice Centre (FLAC), and she claims that, due to poor communication with that organisation, she delayed submitting her complaint to the WRC within the six-month time limit.   She said that she told a solicitor in FLAC in May 2022 that she had submitted a complaint to the WRC and she was advised that, if she wanted assistance, she would have to register a new case with them. 

A person contemplating a complaint of discrimination under the Equal Status Act 2000 must comply with two separate time limits.  The first, at section 21(2) of the Act, provides that a complainant must, within two months after the date on which the prohibited conduct is alleged to have occurred, notify the respondent in writing and inform the respondent of his or her intention to seek redress.  The complainant sent her notification to the RTB on May 4th 2022, seven months after she received the Determination of the Tenancy Tribunal.  The second time limit is set out at section 21(6) and this provides that a complaint of discrimination may not be referred to the WRC more than six months after the most recent incident of discrimination.  The complainant has also exceeded this time limit, because she submitted this complaint to the WRC on May 12th 2022, more than seven months after the last alleged incident of discrimination.

In the first instance, I will consider the complainant’s application for an extension of the time limit for submitting an ES1 form to the respondent.  Section 21(3)(a) of the Act provides that, for reasonable cause, I may substitute the two-month time limit for four months.  I am also permitted, “exceptionally, where satisfied that it is fair and reasonable in the particular circumstances of the case to do so,” disapply the time limit entirely.

The established test for deciding if an extension of time should be granted to a complainant is set out in the Labour Court case of Cementation Skanska (formerly Kvaerner Cementation) v Carroll[1].  In that case, the test for reasonable cause for extending the time limit to 12 months was set out 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.”

It is clear therefore, that, for an explanation of “reasonable cause” to succeed,

§    The complainant must explain the delay and afford an excuse for the delay;

§    The explanation must be reasonable;

§    There must be an objective standard applied to the circumstances of the case;

§    There must be a causal link between the circumstances and the delay;

§    The complainant must show that, if the circumstances were not present, she would have submitted the claim on time.

The complainant said that she was suffering from stress when she got the Determination of the Tenancy Tribunal in early October 2021.  This is understandable and many people in receipt of an unfavourable decision would feel anxious and stressed.  However, she provided no medical evidence to substantiate her claim that she was too ill to send an ES1 form to the RTB within two months from October 4th 2021.

I note from the documents the complainant submitted for the hearing that, on October 21st 2021, three weeks after she received the Determination of the Tenancy Tribunal, she sent an email to the RTB, seeking assistance with how to appeal against the decision.  In her email she asked,

“Can you please confirm that I could make an appeal against the Determination order Prtb Tribunal to the Workplace Relations Commissions (sic) as an unfair process?”

In response, the complainant was advised that she would have to contact the WRC.  It is apparent from this email, that, shortly after she received the decision of the Tenancy Tribunal, she considered submitting a complaint to the WRC.  For reasons that are unexplained, she delayed until May 4th 2022 to do so.

I note also that, at the end of October 2021, the complainant had a telephone consultation with a volunteer solicitor in FLAC and that she had a total of eight telephone clinics between October 2021 and February 2022.  She said that she also sought advice from the Citizens Information Service and the Legal Aid Board.

It is apparent from the documents submitted by the complainant that, from very shortly after she received the Determination of the Tenancy Tribunal on October 4th 2021, she was actively pursuing avenues of appeal.  At the hearing, she said that, in May 2022, she “got an idea” to make a complaint to the WRC.  This is contradicted by the email she sent to the RTB on October 21st 2021.

Based on her active engagement with the RTB and the Free Legal Advice Service about her case, I am not satisfied that the complainant was so ill that she was prevented from sending an ES1 form to the RTB before the expiry of the time limit of two months from October 4th 2021.  I am also not satisfied that the problem with electricity in her flat in for 10 days in November was the cause of the delay.

Regarding her inability to afford legal advice, the complainant is a capable person and she understands the requirement to comply with the time limits.  She also sought and received sufficient free advice so that she could have sent a notification to the RTB within the two-month time limit and to the WRC within the six-month time limit.  Finally, the requirements regarding the time limits are clearly set out in the guidance notes for submitting a complaint which are available on the website of the WRC.  The assistance of a solicitor is not required to submit a complaint.

I find that the explanation given by the complainant for the delay submitting an ES1 form to the RTB is not persuasive and that she has not met the standard of reasonable cause set out in the Cementation case to persuade me to grant an extension of the two-month time limit to four months.  Based on the transcript of the hearing at the Tenancy Tribunal, I am satisfied that the complainant received a fair hearing and I find that the circumstances of her case are not of such an exceptional nature that I should dispense altogether with the notification time limit.

Having reached this conclusion, I find also that the complainant’s explanation for not submitting this complaint to the WRC within the six-month time limit is not reasonable.

I have concluded that the complainant has not established that there was a reasonable cause for her failure to submit an ES1 form to the respondent within the two-month time limit specified at section 21(2)(a) of the Equal Status Act 2000.  I decide therefore, that her complaint is not well founded.

Complaint submitted outside the time limit