Complainant

Respondent

Parties

Frank  Murray

Terry Reilly

Representatives

  In person

Niamh McGowan BL instructed by Brian Morgan, Morgan McManus 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-00056356-001

08/05/2023

The complainant was received by the Workplace Relations Commission on 8th May 2023.

As per complaint form submitted to the Workplace Relations Commission on 8th May 2023 the Complainant is alleging that he notified the Respondent using for ES1 on 26TH April 2023. The Complainant has stated that he was discriminated against on the grounds of disability and that he has been the victim of harassment at the hand of the landlord over a four year period with the most recent date of discrimination being October 2022.

PRELIMINARY OBJECTION: JURISDICTION – INCORRECT RESPONDENT.

·        The Respondent was not a provider of a service within the meanings ascribed by sections 2 and/or 4 of the Equal Status Acts or otherwise or at all. The Respondent did not own the Property of which the Complainant was a tenant. The Respondent was not the landlord responsible for the Property and neither was he an agent for the owner/landlord of the Property. The Respondent did not provide accommodation to the Complainant.

·         Ms Reilly was the registered owner of the Property occupied by the Complainant and the Respondent was not. The Complainant had a letting agreement with the Property owner, Ms Reilly, and not with the Respondent. This was documented and evidenced in writing and signed by the Complainant and the Property owner. The Complainant’s tenancy was registered with the RTB naming the Complainant as the tenant and Ms Reilly, the Property owner, as the landlord. The HAP tenancy was registered with Cavan County Council again with the Complainant as the tenant and the Property owner as the party to whom HAP payments were made. The Complainant was liable to pay rent, and did pay rent, to his landlord (the Property owner) and not the Respondent.

·         In circumstances where the Respondent was not the Property owner, was not the landlord of the Property in which the Complainant resided, had no legal relationship with the Complainant and was not the provider of accommodation it is submitted that the Respondent is not a proper party to the proceedings and the WRC has no jurisdiction to investigate the Complainant’s claim as against the Respondent.

·         The Respondent asks that a preliminary determination on the issue of jurisdiction be made in the interests of saving time and costs in circumstances where the determination in respect of the preliminary issue will be determinative of the entire proceedings.

PRELIMINARY OBJECTION: JURISDICTION - TIME LIMITS

·        Section 21(2)(a) of the Equal Status Acts provides that:- “Before seeking redress under this Section the complainant – (a) Shall, within two months after the prohibited conduct is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within two 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 allegations, 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.”

·         The Complainant has not identified any specific incidents which he alleges constitutes discrimination. However, the Complainant had vacated the Property on the 30th September 2022 after the sale was concluded on 25 September 2022; so cannot contend that there was any discriminatory treatment after that date.

·        6.3 The Complainant did not notify the Respondent in writing of the nature of its allegation against the Respondent in the terms provided for in section 21(2)(a) until it provided the Respondent with the Form ES.1 on 26 April 2023, some seven months after the Complainant had already vacated the Property. While section 21(3)(a)(i) provides that the period of time for notifying the Respondent in writing may be extended from two months to a period not exceeding four months if the Complainant can show reasonable cause why the notification could not be made within the two month period, it is submitted that the period of time taken by the Complainant to notify the Respondent in writing far exceeds even this potential extended period for notification, and as such it is the Respondent’s submission that the Complainant is statute barred from proceeding with his complaint.

·         Insofar as there is any intention on the part of the Director General of the WRC or the Adjudication Officer, having the delegated authority of the Director General to investigate the complaint, to apply the provisions of section 21(3)(a)(ii) to dispense with the obligation on the Complainant to provide such notification within the time limits set out in section 21(2)(a) and/or section 21(3)(a)(i) the Respondent notes that such discretion may only be exercised “exceptionally” and that this threshold is not reached in the instant case.

·         In Byrne v. P.J. Quigley UD762/1994 the Employment Appeals Tribunal ruled that the words “exceptional circumstances” were “strong words” and meant something “out of the ordinary”. At the very least, the Tribunal said, the circumstances must be “unusual, probably quite unusual, but not necessarily highly unusual”. The Tribunal went on to say that, in order to extend time, it must be satisfied, the onus being on the claimant, that the exceptional circumstances prevented lodging the claim within the six month time limit and it seemed to follow that the exceptional circumstances involved must arise within the first six months. If they arose later they could not be said to have prevented the claim being initiated within that period In Fitzsimons-Markey v. Gaelscoil Thulach na nÓg [2004] ELR 110 the Labour Court said that to be exceptional, “a circumstance need not be unique or unprecedented or very rare; but it cannot be one which is regular or routinely or normally encountered”.

·        In Murphy v. Citizens Information Call Centre Ltd. (UD 59/2005) the Tribunal ruled that, to support a submission that the claimant was medically unfit to initiate a claim during the initial six-month period, medical evidence from the claimant’s doctor would ordinarily be required. Without this the claimant’s own evidence regarding her medical condition was deemed insufficient to meet the threshold.

·         The Complainant submitted, in undated correspondence to the WRC received by the WRC on 27 April 2023 that the reason he had not complied with his obligation to notify the [correct] Respondent of the allegations of discrimination and his intention if dissatisfied with the response to seek redress under the Equal Status Acts was because he had suffered with ill health from October 2022 but provided no medical evidence in support of same. He makes reference to multiple health issues with his primary assertion being that mental health difficulties were the reason he was unable to comply with his statutory obligations. Despite an abundance of medical documentation being provided none of it supports his assertion that there was any medical reason which prevented him issuing a notification and/or submitting a complaint form to the WRC within the time limits provided for in the Equal Status Acts. The medical documentation provided subsequently by the Complainant to the WRC, in response to the WRC letter dated 19th May 2023, relates to a clinic appointment on 20 May 2022 at Professor Hayes’ clinic at Cavan General Hospital and amounts to no more than a report to the Complainant’s GP advising future treatment plan. ( There is no indication in that report of any medical reason why the Complainant could not advance a claim or provide notification to the [correct] Respondent at that time. A letter from the Complainant’s GP, dated 30 March 2023, was provided by the Complainant but again provides no basis from which it can be concluded that he was medically unable to advance his case or had been for the months prior to March 2023 or at any time between the previous medical report of May 2022 and March 2023. An incomplete medical report  indicates that the Complainant was admitted to Cavan General Hospital on 11 November 2022 and discharged on 15 November having been treated for shortness of breath and chest pains but makes no reference to the alleged mental health difficulties which the Complainant maintained was the illness preventing him from advancing his case within the statutory time limits. Further in the correspondence to the WRC (received on 27 April 2023) the Complainant falsely represents that he was “recently diagnosed with COPD” when a handwritten discharge summary from Cavan General Hospital dated 23 December 2021, referenced “COPD changes – not acute” which indicates a long-standing condition and not a recent diagnosis which would have prevented the Complainant initiating a complaint. In later undated correspondence with the WRC, marked as received by the WRC on 25 May 2023, the Complainant maintained that he had been in hospital for two weeks following an alleged chemical attack in October 2022 where the medical evidence provided does not support that contention. The records from Cavan General Hospital show a three day admission in November 2022 and an ED admission on 23 December 2021 where there were no acute medical issues noted and the Complainant was discharged to the care of his GP.

·         In circumstances where on the Complainant’s own (unverified) account he had a multiplicity of ailments over the four years of his tenancy there is no basis on which he can assert that he was medically unfit to comply with the statutory time limits for notification and submission of his complaint to the WRC. Where the Complainant’s account is not supported by the medical evidence available, and is in fact contradicted in a number of instances, it is submitted, on the authority of Murphy v. Citizens Information Call Centre Ltd, that medical evidence from the Complainant’s doctor or doctors will be necessary if he is to be allowed to rely on his medical condition to meet the exceptional threshold required to dispense with his obligation to notify the [correct] Respondent within two (or four months) of the most recent date of alleged discrimination.

·         The Complainant maintains that the latest date of discrimination was October 2022. This cannot be correct as the Complainant had vacated the Property prior to 30 September 2022. The Complainant only submitted a Form ES.1 on 26 April 2023 and a WRC complaint form at the earliest on 27 April 2023 but in reality (based on WRC correspondence) the complaint form was only received by the WRC on 8 May 2023. The cognisable period based on the complaint being received on 8 May 2023 is from 9 November 2022 to 8 May 2023 during which time on the Complainant’s own account there were no acts of discrimination or victimisation. Even if the earlier date of 27 April 2023 is accepted as the date the complaint form was received by the WRC (which is not accepted by the Respondent) the cognisable period is from 28 October 2022 to 27 April 2023 during which there can have been no acts of discrimination or victimisation as the Complainant had vacated his tenancy by the 30th of September 2022.

·        Further and without prejudice to the foregoing, it is submitted that the Complainant, in respect of his claims is in breach of section 21(6) of the Equal Status Acts which provides that a claim for redress in respect of prohibited conduct may not be referred after the end of the period of 6 months from the date of the occurrence of the prohibited conduct to which the case relates or, as the case may be, the date of its most recent occurrence.

·        Even on the Complainant’s own account the latest date of discrimination/victimisation was in October 2022, which is denied by the Respondent and the Complainant is placed on full proof in respect of same. The allegation relating to, what the Complainant describes as, a “chemical acid attack” was a matter reported to the Gardaí on the 7th September 2022, and as such is statute barred by operation of both section 21(2) and section 21(6) of the Equal Status Acts.

·         The Respondent asks that a preliminary determination on the issue of jurisdiction with regard to time limits be made in the interests of saving time and costs in circumstances where the determination in respect of the preliminary issue will be determinative of the entire proceedings.

Preliminary Findings.

The Respondent representative has clearly pointed out:

·        The Respondent was not a provider of a service within the meanings ascribed by sections 2 and/or 4 of the Equal Status Acts or otherwise or at all. The Respondent did not own the Property of which the Complainant was a tenant. The Respondent was not the landlord responsible for the Property and neither was he an agent for the owner/landlord of the Property. The Respondent did not provide accommodation to the Complainant.

·        Ms Reilly was the registered owner of the Property occupied by the Complainant and the Respondent was not. The Complainant had a letting agreement with the Property owner, Ms Reilly, and not with the Respondent. This was documented and evidenced in writing and signed by the Complainant and the Property owner. The Complainant’s tenancy was registered with the RTB naming the Complainant as the tenant and Ms Reilly, the Property owner, as the landlord. The HAP tenancy was registered with Cavan County Council again with the Complainant as the tenant and the Property owner as the party to whom HAP payments were made. The Complainant was liable to pay rent, and did pay rent, to his landlord (the Property owner) and not the Respondent.

Time Limits.

·        Section 21(2)(a) of the Equal Status Acts provides that:- “Before seeking redress under this Section the complainant – (a) Shall, within two months after the prohibited conduct is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within two 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 allegations, and (b) may in that notification, with aview 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.”

·         The Complainant has not identified any specific incidents which he alleges constitutes discrimination. However, the Complainant had vacated the Property on the 30th September 2022 after the sale was concluded on 25 September 2022; so cannot contend that there was any discriminatory treatment after that date.

·         The Complainant did not notify the Respondent in writing of the nature of its allegation against the Respondent in the terms provided for in section 21(2)(a) until it provided the Respondent with the Form ES.1 on 26 April 2023, some seven months after the Complainant had already vacated the Property. While section 21(3)(a)(i) provides that the period of time for notifying the Respondent in writing may be extended from two months to a period not exceeding four months if the Complainant can show reasonable cause why the notification could not be made within the two month period, it is submitted that the period of time taken by the Complainant to notify the Respondent in writing far exceeds even this potential extended period for notification, and as such it is the Respondent’s submission that the Complainant is statute barred from proceeding with his complaint.

I have considered these points raised by the representative of the Respondent and cannot disagree with any of the points made. I simply do not have jurisdiction to hear the complaint as presented by the Complainant under the Equal Status Act, 2000.

I have considered these points raised by the representative of the Respondent and cannot disagree with any of the points made. I simply do not have jurisdiction to hear the complaint as presented by the Complainant under the Equal Status Act, 2000.