Complainant

Respondent

Parties

Irfanullah  Refah

Mr Aidan Corless

Representatives

Stewart Reddin, Dublin South Citizens Information Service

Gerry McErlean, Solicitor

Act

Complaint Reference No.

Date of Receipt

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

CA-00061134-001

22/01/2024

The Complainant alleges that his landlord, the Respondent, discriminated against him on the grounds of race and harassed him when he requested that the Respondent carry out necessary repairs on the apartment the Complainant rents from him.

The Complainant submits that he was discriminated against by the Respondent contrary to section 3(1)(a) and 3(2)(h) of the Equal Status Act 2000, as amended (the Act), in terms of section 6(1)(c) of that Act.

Section 3(1)(a) of the Act provides that discrimination shall be taken to occur where: "On any of the grounds specified … a person is treated less favourably than another person is, has been or would be treated". Section 3(2) provides that: "As between any two persons, the discriminatory grounds, are ... (h) that they are of different race, colour, nationality or ethnic or national origins (the "ground of race")."

The Complainant further submits that he was harassed by the Respondent contrary to section 11(1)(b) of the Act which provides that: "A person shall not … harass another person where the victim is the … actual recipient from the person of any premises or of any accommodation or services or amenities related to accommodation."

Section 11(5) defines harassment as: "Any form of unwanted conduct related to any of the discriminatory grounds … such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or production of written words, pictures, or other material."

Background to complaint

The Complainant is an Afghan national. He came to Ireland in August 2017 seeking asylum and was granted refugee status in August 2018.  He subsequently applied to the Minister for Justice for family reunification, which was granted in June 2021. His wife and four children joined him in Ireland in February 2022.

When the Complainant received permission for his family to join him in Ireland, he asked around his personal network for offers of accommodation.  An acquaintance, Mr Qamar Ali, is a commercial tenant of the Respondent.  In November 2021 Mr Ali informed the Complainant that the Respondent may have a residential property available for rent in early 2022.

On 22 January 2022 the Complainant visited the residential property in the company of Mr Ali. The previous tenants were still in situ.  The Complainant informed Mr Ali that he would be willing to rent the property.  On 8 February 2022 the Respondent emailed a copy of the tenancy agreement to Mr Ali. However, this agreement named Mr Ali as the sole tenant. The Complainant objected to his name not being on the tenancy agreement. On 14 February 2022 the Respondent issued an updated tenancy agreement by email to Mr Ali. On 15 February 2022 Mr Ali forwarded this email with the lease agreement. The agreement, which was dated 27 February 2022, included the names and PPSNs of both the Complainant and Mr Ali and indicated that the monthly rent was €1,650.

On 27 February the Complainant visited the apartment with both Mr Ali and the Respondent present. The previous tenants had just moved out. During the meeting the Complainant informed both the Respondent and Mr Ali that there were several maintenance issues that needed to be addressed (broken chairs, broken beds, mould on the walls) and indicated that he could not bring his family to live in such conditions.  At this meeting the Complainant gave the Respondent one month's rent and one month deposit in cash, a total of €3,300.

The Complainant got quotes for carpet and paint and informed the Respondent, who said the cost was too high. The Complainant bought off-cuts of carpet and put them down himself. He also bought paint and painted the apartment. He cleared out the broken furniture from the apartment and placed it in the carpark from where Respondent arranged collection.  The Complainant's family moved into the dwelling on 15 March 2022.

Initially, the Complainant paid the rent in cash to Mr Ali. On at least one occasion, in January 2023, the Complainant paid the Respondent directly when the Respondent called in person to the dwelling.

Through Mr Ali, the Complainant continued to request that the Respondent include his wife's name on the tenancy agreement. The Complainant also asked the Respondent to provide him with his bank account details so that he could pay the rent directly to the Respondent as he would require proof of rent payments in order to apply for Irish citizenship.

On 11 April 2023 Mr Ali sent the Respondent's Revolut account details to the Complainant. On 14 April 2023 the Complainant began paying the rent directly to the Respondent via Revolut and has continued to pay the rent monthly by this means.

The Complainant states that he continued to have maintenance problems in the dwelling and regularly informed Mr Ali of the work the Respondent needed to undertake, particularly in relation to the damp and mould which was affecting his family's health.  On the morning of 1 May 2023, the Complainant sent photographs to Mr Ali showing that the ceiling in the bathroom was cracked and sagging. Later that day the ceiling collapsed. The Complainant called Mr Ali who said he would inform the Respondent. Several weeks later the Respondent informed Mr Ali that he would send someone to fix the ceiling. However, there was no follow-up from the Respondent and the ceiling was not repaired.

The Respondent subsequently issued a termination notice to Mr Ali, with a termination date of 31 August 2023. No reason for the termination was provided and the Complainant did not receive a copy of the notice until 21 June when the Respondent emailed a copy to him. The Complainant was informed by Threshold that the termination notice was invalid. Threshold contacted the Respondent directly and he issued a second notice, but this was also deemed invalid.

On 17 July 2023 the Complainant emailed the Respondent requesting that he carry out the repairs to the bathroom ceiling. The Complainant also informed the Respondent that two of the heaters were broken and the locks, the windows and the doors needed to be repaired.  The Respondent did not reply to the Complainant's email.  On 24 July 2023 the Complainant sent the Respondent a message via Whatsapp and once again asked that he carry out the necessary repairs.

The Respondent replied via Whatsapp on the same day. In his message to the Complainant, the Respondent alleged that the Complainant was staying in the dwelling ‘illegally' and went on to state: "You need to be sent out of this country instead of trying to claim from the government. We need to check what papers you used to gain entry here."

The Complainant was shocked and extremely concerned to receive such a message from his landlord. He and his wife feared that the Respondent may have contacts in government or elsewhere who could have his residency status in Ireland revoked.  His fear was particularly heightened given the circumstances under which he was forced to flee Afghanistan.

Prior to residing in Ireland, the Complainant had worked as an Operations Manager for a Non-Government Organisation (NGO) in southern Afghanistan. His role involved managing rural redevelopment and construction programmes, as well as community development programmes to encourage young girls to attend school.  In 2016 the Taliban launched a military offensive in the province where the Complainant lived and worked. As the offensive gained momentum the Taliban took control of substantial parts of the province.  Given the Complainant's role working with a NGO, which involved liaising with US military forces, it was no longer safe for him to remain in Afghanistan, and he fled.

On 22 August 2023 several weeks after receiving the threatening text from the Respondent, the United Nations Assistance Mission in Afghanistan (UNAMA) published a report on human rights violations against former government officials and armed forces members.  The report stated that following the Taliban seizure of power in 2021, hundreds of Afghans who worked with the former Afghan government, and those who had liaised with US military forces as part of that work, have been executed, imprisoned, or tortured.

On 13 September 2023 the Complainant submitted an ES1 form to the Respondent citing his belief that the message sent by the Respondent constituted both discrimination on grounds of race and harassment. The Respondent received the ES1 form on 15 September.

In his reply the Respondent asserts that the Complainant is residing 'illegally' in the dwelling. The Respondent denied discrimination, or harassment, asserting that the Complainant was in 'illegal occupation' of the dwelling and based on this assertion the Respondent opined that the Complainant may also be residing in Ireland with his family 'illegally'.

The Complainant refutes the Respondent's allegation that he was illegally occupying the dwelling. The Complainant's assertion is supported by a recent Residential Tenancies Board (RTB) decision on foot of a separate complaint taken by the Respondent. Following a RTB hearing attended by both the Complainant and Respondent on 22 February 2024, the RTB Adjudicator issued her findings on 28 March 2024.

In response to the Respondent's claim that the Complainant was illegally occupying the dwelling, the RTB Adjudicator stated that: "the landlord has offered no independent corroboration of his view that the applicant tenant had no legal interest in the tenancy." The Adjudicator went on to state: “I accept the evidence of the applicant tenant that he met the respondent landlord's agreed terms, commenced occupation and pays rent for the dwelling."   The Respondent did not appeal the Adjudicator’s findings and the RTB issued a Determination Order on 1 May last.

In relation to the Complainant's residency status in Ireland, he was forced to flee political persecution in Afghanistan. He claimed asylum in Ireland and following a thorough investigation of his claim by the Department of Justice, the Minister for Justice granted him refugee status.

The right to a family life is a long-recognised principle of international, EU and domestic law. The right to family reunification flows from the right to family life. As an internationally recognised refugee the Complainant subsequently asserted his right under the International Protection Act 2015 to apply for his wife and children to reunite with him in Ireland.  His application for family reunification was granted by the Minister for Justice in accordance with the International Protection Act 2015 and both the Complainant and his family's residency in Ireland is therefore perfectly legal.

Discrimination

The Respondent has asserted that the Complainant was 'illegally residing' in the dwelling. The Respondent directly challenged the Complainant's legal right to be in Ireland. The Complainant asserts that that act is discrimination and harassment as per section 3(1)(a), section 3(2)(h) and section 11(1)(b) of the Act.  The Respondent further inferred that the basis for the Complainant's residence in Ireland was to claim social welfare from the government.  The Respondent implied that he could have the Complainant's 'papers checked' and ultimately have him deported.

In questioning the Complainant's legal right to be in the state, it is submitted that the Complainant was treated less favourably than an Irish tenant would have been if they had made a similar reasonable request of the Respondent to have necessary repairs carried out in the dwelling.

Comparator

in accordance with section 3(1) of the Act, "where a person is treated less favourably than another person is, has been or would be treated in a comparable situation", the Complainant submits that an Irish tenant would not have their legal right to be in Ireland questioned by their landlord and that an Irish person's presence in Ireland would not be linked by their landlord to a desire to claim social welfare from the government. Furthermore, an Irish tenant would not be given to believe that their landlord could have their legal documents checked for the purpose of having them deported from the country.

It is further submitted that the Respondent's remarks that the Complainant resides in Ireland illegally, that the basis of his stay is to claim social welfare from the government, and by implication that the Respondent could have his documentation checked and have him deported, represented an act of harassment designed to intimidate him.

Relevant direct evidence of the Complainant

The Complainant said that before February 2023 he paid rent to Mr Ali who then paid the Respondent.  In February 2023 he decided that he no longer wanted to pay rent in that way.  He needed proof of residence so that he could apply for citizenship. 

On 24 July 2023, the Complainant sent a message to the Respondent asking him to carry out the necessary repairs on the apartment.  He was really scared when he received the Respondent’s reply.  He had escaped from Afghanistan.  The Respondent is a strong man who knows more people in Ireland than the Complainant does.

Conclusion

The Complainant was left in shock and was fearful that the Respondent may have been in a position of authority to act on the words in his message of 24 July 2023. The Complainant was terrified that this could result in him being reported to the authorities and potentially being deported and returned to Afghanistan where he faced a real threat to his life. The Complainant believed that his character was impugned, and a doubt cast on the dreadful experience of having to flee his country and be separated from his wife and children for six years.

The Complainant seeks compensation for the effects of the prohibited conduct.  The Complainant requests that the Adjudication Officer makes an order for compensation in a way which is dissuasive and proportionate to the damage suffered.

The Respondent submitted that the apartment had been rented to Mr Ali who let the Complainant stay there. 

Relevant direct evidence of Mr Qamar Ali

Mr Ali confirmed that he entered a lease with the Respondent on 27 February 2022.  After two weeks he asked the Respondent to put the Complainant on the lease as he would be staying in the apartment for a short time.  The Respondent refused as he had leased the apartment to him.

Mr Ali confirmed that he asked the Respondent to issue two months’ notice to the Complainant so that he could get help from social services and move out.  The Respondent dd not want to issue notice but he pleaded with him and assured him that the Complainant would move out.  Based on his promise, the Respondent issued notice to the Complainant.

After this, the Complainant requested six months’ notice.  The Respondent refused.  The Respondent was not aware at that time that the Complainant had his family of six people in the apartment until months later.  The Respondent told him that he would never have allowed so many tenants as there were only two small bedrooms, and the apartment was not suitable for a family of six. 

Mr Ali said that he asked the Complainant to move out many times, but he always refused.

Cross-examination of Mr Ali by Mr Stewart Reddin

Mr Ali confirmed that he did not tell the Respondent about the Complainant’s family. 

Mr Ali said that the Respondent was very annoyed when he discovered that there were six people living in the apartment and Mr Ali felt that he had let the Respondent down.

Mr Ali said that the termination notices were requested by the Complainant so that he would get social housing.

Relevant direct evidence of Mr Aidan Corless, the Respondent

Mr Corless said that he had agreed to rent the apartment of Mr Qamar Ali.  He understood that Mr Ali was going to rent a room to his uncle for a short term.  The Respondent said that Mr Ali asked him to put his name and the name of the Complainant on the lease but that he refused.  Mr Ali was the tenant, and he had a copy of his passport.  He did not have any documentation for the Complainant.

The Respondent said that Mr Ali asked him for two months’ notice of termination for the Complainant so that the Complainant could get housing from Social Protection.  The Respondent issued a 60-day notice.   The Complainant then looked for six months’ notice.

The Respondent told Mr Ali that he had to get rid of the Complainant.  The Respondent said that he would never have rented a two-bed apartment to a family of six.

The Respondent said that he kept getting emails and texts from the Complainant.  The Complainant asked him to sign a form for rent supplement, but he refused because the Complainant was not his tenant.  The Respondent believed that the Complainant was illegally in the apartment. 

The Respondent said that the WhatsApp message he sent to the Complainant on 24 July 2023 was sent in frustration and that he is not proud of it.  He believed that the Complainant had been illegally in the apartment for two years.  The Respondent said that he had an Afghan tenant in another apartment in the same block.  The Respondent said that most of his tenants are non-Irish nationals. 

The Respondent apologised for the text and said that it should never have been sent in that way.

Cross-examination of the Respondent by Mr Stewart Reddin

The Respondent said that he had been asked by Mr Ali to provide 60 days’ notice to the Complainant.  Initially he refused but he was badgered into doing it.

The Respondent confirmed that Mr Ali asked for his Revolut details in April 2023 to enable the Complainant to pay rent directly to him.

The Respondent said that in July 2023 the Complainant was parking illegally in the apartment carpark.  He asked him several times to move his car.  When the Complainant got a notice from the management company, he eventually moved it.

The Respondent said that he was very frustrated around the tenancy of the apartment because the Complainant was illegally in the apartment and the Respondent had no identity papers for him.  The Respondent said that as far as he was concerned, the Complainant was an illegal tenant.

Mr Reddin asked the Respondent how he thought his message would be received.  The Respondent replied that, looking back he thought that it would not be nicely received.  He said that the message was not meant as discriminatory but the carparking issues were going on in the background.

The Respondent said that he would have said something else to an Irish person, but he would have been frustrated.

Re-examination by Mr McErlean

The Respondent said that the WhatsApp to the Complainant was sent on the basis that the somebody was illegally in his apartment.  The Respondent said that he did not try to get the Complainant out as he had to pay the mortgage.

The Respondent said that he was aware of people who asked him to sign papers illegally.

Complainant of discrimination on the race ground

The issue for determination in this complaint is whether the Respondent discriminated against the Complainant on the race ground contrary to sections 3 of the Equal Status Act 2000 (as amended) (the Act), in relation to the provision of a service. 

Section 3(1) provides: “For the purposes of this Act discrimination shall be taken to occur— (a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) or, if appropriate, subsection (3B), (in this Act referred to as the ‘discriminatory grounds’) which— (i) exists, (ii) existed but no longer exists, (iii) may exist in the future, or (iv) is imputed to the person concerned,”

…………

 (2) As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are:

…………

(h) that they are of different race, colour, nationality or ethnic or national origins (the “ground of race”),

I must, therefore, assess the evidence adduced, both documentary and oral, and decide if, on the balance of probabilities the Complainant’s complaint of discrimination on the race ground has been established.

Section 38A of the Act sets out the burden of proof in equal status complaints as follows:

“(1) 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.”

In order for the Complainant to meet the burden of proof on him he must first identify a comparator who received more favourable treatment than he did.  He must also establish the facts from which less favourable treatment could be inferred.  The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before the burden of proof is met by the Complainant so that it then shifts to the Respondent. 

The Labour Court, in Mitchell v Southern Health Board [2001] ELR 201 emphasised that, in the first instance, the claimant “must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination”.   It continued:

“It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment”.

Comparator

Equality law is based on comparison – how one person is treated by comparison to another who does not possess the relevant protected characteristic. It is therefore necessary to support a claim of discrimination by pointing to how another person (the comparator), not having the protected characteristic relied upon, was, is or would be treated in a comparable situation.

In order to make a valid initial case of discriminatory treatment on the ground of race, pursuant to section 38A of the Act, the Complainant needs to identify a comparator of a different race who received more favourable treatment than he did.   This is specified in section 3(1) of the Act, where discrimination is defined as “where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) or, if appropriate, subsection (3B), (in this Act referred to as the ‘discriminatory grounds’)”, which includes the ground of race on which the complaint was brought. 

Thus, the Complainant must be the subject of less favourable treatment in comparison to another person on grounds of race i.e. because he is an Afghan.

In many cases the comparator will be an actual person, but they need not be.  It is permissible to select a hypothetical comparator.  A hypothetical comparator can be constructed by asking why the complainant was treated as they were.  If the treatment complained of was due to a protected characteristic, a hypothetical comparator is a supposed person who does not have that characteristic but who is otherwise in the same position as the Complainant.

I find that the Complainant has identified a hypothetical Irish tenant of the Respondent as a comparator who is in a “comparable situation” to the Complainant to serve as a valid comparator within the meaning of section 3(1) of the Act.  The Complainant alleges that he was treated less favourably than an Irish tenant would have been when the Respondent suggested that the Complainant was in Ireland to claim from the government and that his entry papers needed to be checked.  The only difference between the Complainant and the hypothetical comparator is that the hypothetical comparator is of a different race.

Inference of less favourable treatment

The Respondent’s statements in his WhatsApp of 24 July 2023 to the Complainant that the Complainant needed to be “sent out of this country instead of trying to claim from the government” and “we need to check what papers you used to gain entry here” are a clear reference to the Complainant’s immigrant status.  It is clear that the contents of the WhatsApp were not positive or even neutral. Instead, they reflect a negative view of immigrants as coming to Ireland without the necessary permission in order to access benefits.  It appears that the Respondent is attempting to use the imbalance between his position as someone who is familiar with Irish societal norms and that of the Complainant who is an immigrant from a very different background in an attempt to upset, frighten and intimidate the Complainant.   I accept the Complainant’s contention that an Irish person in a similar situation to the Complainant would not be subjected to the same treatment.

I find, therefore, that the Complainant has met the burden of proof to show that he suffered discrimination contrary to section 3(1) of the Act.  Accordingly, the burden of proving that discrimination did not occur in relation to the Complainant now passes to the Respondent.

Rebuttal

In his direct evidence, the Respondent said that the WhatsApp message he sent to the Complainant on 24 July 2023 was sent out of a sense of frustration.  At the hearing the Respondent said that he was not proud of the message, and he apologised for it.

However, neither the Respondent’s contrition as expressed at the adjudication hearing nor his sense of frustration in any way lessen the detrimental impact of his WhatsApp message to the Complainant due to the blatant racism expressed therein.  Accordingly, I find that the WhatsApp message which the Respondent sent to the Complainant on 24 July 2023 constituted an act of discrimination towards the Complainant on the race ground.

Bearing in mind the totality of the evidence put before me, I conclude the Complainant has established an initial case of discrimination on the grounds of race which has not been rebutted by the Respondent. I find, therefore, that this complaint is well founded.

Harassment

The issue for determination in this complaint is whether the Respondent harassed the Complainant on the race ground contrary to section 11(1) of the Equal Status Act 2000 (as amended) (the Act), in relation to the provision of a service. 

Section 11(1) of the Act provides:

“11.— (1) A person shall not sexually harass or harass (within the meaning of subsection (4) or (5)) another person (“the victim”) where the victim—

(a) avails or seeks to avail himself or herself of any service provided by the person or purchases or seeks to purchase any goods being disposed of by the person,

(b) is the proposed or actual recipient from the person of any premises or of any accommodation or services or amenities related to accommodation, or

…”

The Complainant is relying on the same set of facts to support a claim of harassment as he used to support a claim of discrimination.  It is well settled that the same set of facts cannot be relied on to support more than one complaint.  Given that I have already found in the Complainant’s favour in relation to his complaint of discrimination, I find that his complaint of harassment has been disposed of.

In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of the investigation as well as the evidence presented at the hearing.

Having investigated the above complaint, I hereby make the following decision in accordance with section 25(4) of the Equal Status Act, as amended (the Act). I decide that:

·        The Complainant was discriminated against on the race ground contrary to section 3(1) and in terms of section 3(2)(h) of that Act. I decide, therefore, that this complaint is well founded.

·        The Complainant as failed to establish a case of harassment contrary to section 11(1) and in terms of section 11(1)(b) of the Acts. I decide, therefore, that this complaint is not well founded.

Under section 27(1) of the Act, I order the Respondent to pay the Complainant compensation of €10,000.

Discrimination on the race ground