Complainant

Respondent

Parties

Krzysztof  Ceglarski

Pat O'Brien

Representatives

Emese Baranyi, Olga Shevchenko Immigrant Advice Bureau

Ms Hannah Cahill BL instructed by Justin P Condon, Murphy and Condon Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00058074-001 WITHDRAWN

03/08/2023

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

CA-00058074-002

03/08/2023

The Complainant was a tenant with the Respondent property owner in a four-story building in Cork where the other tenants were families of Asiatic heritage. He held the tenancy from summer 2017 until he departed the tenancy of his own volition in 2024. The Complainant is claiming that an eviction notice issued by the Respondent was a discriminatory act based on the grounds of race and family status, namely he was a Polish/European single man who was treated less favourably than the Asiatic families.

The validity of the eviction notice was assessed at the Residential Tenancy Board (RTB) where it was found that the notice was invalid and the tenant, the Complainant in this case, was awarded €400 compensation.

The Respondent argued that this was a case where the tenant who had an issue under landlord/tenancy law was attempting to shoehorn his issue into an equal status case where no evidence exists to support such a case.

The Complainant gave evidence under oath. He  rented an apartment in Cork, from the Respondent since the summer of 2015. Issues arose around 2017/18 due to noise pollution from neighbours living above him which continued into the night. He was an evening worker and found it hard to sleep late into the night . Despite attempts to resolve the issue with the neighbours, the  noise continued, leading him to contact the Gardai as well as the HSE regarding foodstuffs that were lying around in the premises due to the tenants operating a food business from the ground floor. He received  notices from the property owner indicating termination of the tenancy, allegedly due to renovation plans and market rent concerns.

The Complainant  took the matter to the Residential Tenancies Board (RTB), which determined the notices were invalid and awarded damages to him. However, the situation remained unresolved, with ongoing noise disturbances, improper storage of frozen products, and occasional verbal abuse from neighbours.

The Complainant submits he  felt discriminated against by the Respondent.  He suggests  the Respondent showed preference towards the other tenants over him. The Respondent actions, including threats and manipulation, caused the Complainant emotional distress and health issues, prompting him to vacate the apartment.

The Complainant felt he was discriminated against on the basis that he was a single Polish/European male and that families of Asiatic heritage were favoured. He stated in evidence that he felt that the Asiatic families could be paying higher rent but also stated that he believed he was penalised because he made the complaint. He  re-iterated this  point again when pressed in further questioning. The Complainant accepted that he was never subjected to racial abuse, nor was there any reference to race or his family status, in any of his dealings with the Respondent.

The Respondent gave evidence under oath. He stated that the Complainant took up a tenancy with a woman in 2015, but that the woman left in 2017. He considered the Complainant to have been a model tenant, but the issue , as the Respondent saw it, was that  he never came to the Respondent to sort out the problem but instead went to outside bodies with various complaints and this caused problems for everyone in the building. He denied that he even knew the nationality of the Complainant and had no notion of discriminating against him on race or family status grounds.

The Respondent’s counsel argued that that the Complainant has not established a prima facie case and opened the Labour Court cases of Arturs Valpeters v Melbury Developments Ltd 21 (2010) ELR 64 and Teresa Mitchell (appellant) v Southern Health Board (Cork University Hospital) (respondent): Labour Court AEE/99/8 (15 February2001) in support of this argument

The Applicable Law:

Section 38A of the Equal Status  Acts 2000-2015 (“the Acts”)  mirrors Section 85A of the Employment Equality Acts 1998-2015 in its main provision with regard to the initial burden of proof for a complainant under equality legislation.  In Arturs Valpeters  ,opened by the Respondent above, the Labour Court gave guidance on how Section 85A is to be interpreted.:

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.”

In  Graham Anthony & Company Limited v Mary Margetts  EDA 038  the evidential burden which must be discharged by the Complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court when it stated:

“The mere fact that the Complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The Complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination occurred.”

The Complainant must therefore first establish a prima facie case of discrimination, in a twofold process that firstly  he was Polish and a single person, which he established, but more significantly in this case, that  he was subject to discriminatory treatment. The mere fact that the Complainant falls within two  of the discriminatory grounds laid down under the Acts is not enough in itself to establish a claim of discrimination. As per Graham Anthony above, the Complainant must adduce further facts from which it may be inferred on the balance of probabilities that an act of discrimination occurred, namely in this case that his status as European single male led to the eviction order. The Labour Court in Arturs Valpeters  stated that “Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.” It was clear to me in this case that Complainant in evidence did not go beyond speculation and assertions.  Furthermore, his evidence on the fundamental point of the reason for receiving an eviction notice was clearly contradictory. He admitted under oath that  he believed that he was penalised because he made complaints to the authorities. This flies in the face of his original assertion that the penalisation was due to prohibited discriminatory conduct by the Respondent . For the reasons outlined above, I conclude that the Complainant did not discharge the initial burden of proof as required under section 38A of the Acts, that he was discriminated against on the grounds of race and family status. Therefore, I find that the Respondent did not engage in prohibited conduct.

CA-00058074-002: For the reasons outlined above, I conclude that the Complainant did not discharge the initial burden of proof as required under section 38A of the Acts, that he was discriminated against on the grounds of race and family status. Therefore, I find that the Respondent did not engage in prohibited conduct.

Equal Status Acts 2000-2015, Tenancy, Race, Family Status.