Complainant

Respondent

Parties

Roxanne  White

Pat Corcoran                                Kinnear & Co (Accounting and Finance)

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00060262-001

27/11/2023

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

CA-00060294-001

29/11/2023

This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing.

It should also be noted that both the Complainant and the Respondent were all agreeable to giving a formal affirmation that all evidence provided would be truthful. The giving of false statements or evidence is an offence. Making an Oath or Affirmation is provided for under the Workplace Relations (Miscellaneous Provisions) Act, 2021 which came into effecton the 29th of July 2021.

The Specific Details of the Dispute are outlined in two Workplace Relations Complaint Forms which were received on the 27th of November 2023 and the 29th of November 2023. The Complainant is the same across the two Complaint Forms and have been joined under the one ADJ number.

I note the Respondent’s application as follows:

“I am concerned that this sensitive information may come into the public domain in proceedings held in public and in these exceptional circumstances request the adjudicator's consideration that the hearing be conducted in private”

It is the WRC practise to conduct hearings in Public unless the Adjudication Officer decides, of their own motion, or following an application from a party to the proceedings, that due to the existence of special circumstances, the proceedings should be conducted in private. As it happens only the parties were present so no such application needed to be made.

I have given some thought as to whether or not the decision herein should be anonymised with an anonymised version of the decision uploaded onto the WRC website. On balance I am not satisfied that special circumstances exist which would justify this departure from the norm. the Complainant was unable to establish the existence of special circumstances.

The Complainant was not represented and made her own case. When commencing her evidence, the Complainant agreed to make an Affirmation.

 I was provided with a substantial amount of documents and paperwork from the Complainant supporting her case herein.  The Complainant additionally relied on the submission outlined in the Workplace Relations Complaint Form.  No objection was raised to any of the materials relied upon by the Complainant in making her case. The Evidence adduced by the complainant was challenged as appropriate by the Respondent/by the Respondent’s Representative.

The Complainant alleges that in providing a professional service, the Respondent treated the Complainant less favourably than another person would have been treated and specifically by reason of the Complainant’s Gender and Disability.

Where it also became necessary, I explained how the Adjudication process operated with particular emphasis on establishing jurisdiction and in overcoming the burden of proof which has to be attained by the Complainant in the first instance - the Prima Facie case.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case, and in fulfilment of my duties as prescribed by Statute. 

The Respondent represented himself. The Respondent is a fellow of the Institute of Chartered Accountants in Ireland and trades

The Respondent provided me with a written submissions dated 15th October 2024. Two booklets of Appendices are attached thereto. No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making its case. All evidence was heard following an Affirmation. The Respondent’s evidence was challenged as appropriate by the Complainant.

The Respondent rejects that he has discriminated against the Complainant. The Respondent asserts that he has maintained a professional standard in difficult circumstances pushed by the Complainant. The Complainant has also made the case that he is not specifically providing a Service to the Complainant and is instead providing a service to the estate of the Complainant’s deceased Mother.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

I have carefully listened to the evidence adduced in the course of this hearing.

The pre-history herein extends back to April of 2022 at which time the Complainant’s mother died. I shall, where necessary, refer to the Complainant’s Mother as the Deceased.

The Deceased died Testate, and her Will identified and named three coexecutors. The Complainant, her brother (the two beneficiaries), and the Respondent (a trusted financial Affairs advisor). A nominated firm of Solicitors who had acted for the Deceased commenced the work of preparing to extract probate and the Respondent gave evidence that he was happy to provide whatever information his Practise had concerning the Deceased’s Estate to the nominated solicitors to assist them in that work.

I understand that the Deceased left her house to the Complainant, perhaps some stocks and shares to the brother, with the residue of the Estate to be divided equally between both beneficiaries.

A dispute arose regarding boundary and fence works around the house intended for the Complainant when a neighbouring farmer unilaterally carried out certain works which the Complainant says made access and egress difficult. There might have been a long-standing right of Way issue herein with perhaps the said farmer seizing the moment.

The Complainant was very upset with what happened and in particular as she has mobility issues making it difficult to get in and out of her car to open and close gates.

The Respondent noted in his submission:

“The legal advice, as I understood it, was if any issues of the actual boundary or access existed pre the death of …………… that they were matters för the beneficiary of the property i.e. Roxanne White and not the estate. I was concerned that the estate could become embroiled in a protracted dispute and possibly litigation with the neighbour…….with uncertain outcome and that it would hold up and severely impact the administration of the estate, possibly for years.”

By November 2022 the hope was that an intermediary might be engaged to resolve the issues. I understand that there was a general acknowledgement that monies were required to reinstate the boundary fence.

The Respondent noted that:-

“I suggested the costs be met from the funds that would otherwise fall into the residue of the estate. Under the will, the residue of the estate fell to be inherited equally by Roxanne White and………..

From early on the Respondent was uneasy about his role should the other two executors be considering litigation. I accept that the Respondent was very careful to direct his correspondence to both parties as the potential for fall out between them was well known to him.

Somewhere along the line the Deceased’s nominated Solicitor pulled away from having any further involvement with the estate and this was before any probate had been extracted.

The Complainant approached another Solicitor (TM&Co) to complete the probate process, and the three co-executors agreed to this appointment. I understand that TM&Co tried to progress matters and agreed that the resolution of the boundary issues was desirable prior to proceeding further.

There is no doubt that a voluminous amount of correspondence passed between the Respondent and TM&Co and the Complainant, and her brother. I am absolutely satisfied that the Complainant was kept abreast. I am further satisfied that any delays were not created by the Respondent and that the Complainant must primarily look to herself in this regard. The Complainant appeared to put up a staggering number of roadblocks to the progressing of this case and took grave exception to the fact that the expectation was that that she would be responsible for the location and retrieval of the paperwork required to finalise the Deceased’s Estate. These documents were in the house to which the Complainant had become entitled under the will.

The Complainant repeatedly referenced the fact that her brother (who lives in America) was not expected to do the leg work required on the ground and here was no expectation on him to organise the Decease’s affairs. It is this sense of Grievance against her brother that has brought the Complainant to issue a complaint through the WRC. In particular the Complainant appears to be saying that the Respondent making certain demands (he would say requests) of her, amounts to discrimination against her as the same Respondent has not tasked or asked the other Co-Executor (the brother) to do the same work. This situation was compounded by the fact that the Complainant felt her time and energy was being used up chasing cattle away from the house which was left to her when her brother did not have to do so. This issue relates to the boundary issue which seemingly has seen livestock belonging to the farmer next door having access to the house.

The Respondent sensed that the brewing difficulties were complicated by the fact that his firm also had a professional relationship with the Complainant in her own right and…

“Given her apparent dissatisfaction with me ……… in relation to estate matters I wrote to her on the 6th July 2023 suggesting that we cease to continue to act as her accountants to avoid any possible or perceived conflict of interest in my work for the estate and her position as a beneficiary of that estate.”

However, he noted:

“We did not receive the usual professional clearance request from any other accountant or a request for carry over information. Following the death of Mrs White we copied both Roxanne White and Shane White on important tax filings (i.e. forms, backup schedules etc) for their information and approval as they were both nominated executors of her estate, i.e. for the tax year 2021 and 2022 and in relation to amendments to 2019, 2020 and 2021 for additional information that we received that was not provided to us by Faith White previously. We considered that Shane White, as well as Roxanne White, had a legitimate interest in any matters concerning their late mother's affairs as they are both nominated executors.”

The Complainant appears to have made a Data Request of the Respondent. I understand that the Complainant took issue with the fact that the Respondent made the fact of the DATA request known to her brother as it was felt that he had a legitimate interest under data protection law to be informed of the data request received in relation to his late mother's data.

By July of 2023, TM&Co had put together a proposition to move matters forward. The Complainant had initially sought €8,000.00 to carry out works and this had risen to €25,000.00 and TM&Co suggested a figure of €25k contribution from the estate in respect of the boundary works would issue in exchange for the Complainant agreeing that she personally, to the exclusion of the estate, would deal with the boundary issue. The Respondent gave evidence that he was prepared to continue in his role as co-Executor and be involved in the administration of the estate provided there was a binding agreement between the other two executors (also ultimate beneficiaries) on this issue.

The Complainant was not happy to proceed and on the 11th August 2023  she submitted a three-page email of issues and matters that unfortunately meant that the final administration of the estate was moving further away. The Complainant specifically opened up some of these issues and my sense was that the Complainant did not want her brother securing some sort of financial benefit which had nothing to do with her. She pointed to the possibility of the requirement to obtain specialised financial advice to do with the stocks and share coming out of the residue of the Estate and not out of her brother’s own pocket. The Complainant identified this as he supported a caveat that could have removed the deceased’s mother’s bequests to me and specifically removed some bequests and entitlements.

It was complaints such as these that the Complainant kept coming back to time and time again.

Eventually TM&Co on the 15th September 2023 suggested that the best way forward would be to have the court appoint an independent administrator to administer the estate or to agree to an independent Administrator. The Complainant would not agree to that with her brother, and I do not get the sense that there has been a conversation around that.

Without the grant of probate, it was not possible to deal with the administration of the estate. Everything has been stalled. Tax returns were submitted but the process was complicated by the fact that seemingly post was not getting delivered because of the access difficulties created by the Farmer.  There are concerns now that Revenue might not be satisfied. The Complainant appears to blame the Respondent for a lack of vigilance.

The Respondent is at a loss to understand how the Complainant can make an allegation against him for discrimination by reason of gender. Her allegation appears to be that she was discriminated against her as a female executor and/or a female beneficiary in the course of the Respondent conducting his duties work and efforts to advance the administration of her late mother's estate.

The Respondent points out that in his efforts to advance the administration of the estate he was working alongside fellow nominated executors in a voluntary and unremunerated role and not as an independent person providing services to Roxanne White.

The Respondent has summarised from a considerable volume of emails and correspondence over a two-year period. The Respondent has attempted to set out a chronology of his work as well as the efforts of two sets of Solicitors. The Respondent notes that in his efforts he was trying to achieve agreement between the Brother and Sister particularly in relation to issues with the lake house that Roxanne White was getting as a specific bequest from the estate.

Any probate or executor role is detailed and requires work. Any executor who accepts such a role should be prepared for the work and the time involved. If those issues and the approach thereto were not resolved and agreed before the application for probate was submitted, the Respondent said he was very concerned that it could have placed the estate in complete stalemate.

The Respondent indicated that the last quote for a court appointed administrator was at a cost of one hundred and fifty thousand euros, possibly up to ten (10) times that of a normal solicitor. There is no evidence, he says, that the estate has such monies to pay for this cost.

The Complainant is now looking at a figure of €30k, to increase by 10% per month for the works to be carried out concerning the boundary.

Regarding the allegation of discrimination by reason of disability the Respondent says he has no knowledge of what disability Ms White refers to and he is at a loss as to how his work and efforts can be described as discriminatory. He notes he worked in conjunction with Roxanne White and Shane White as fellow nominated executors and not as a service provider to Roxanne White.

The Complainant is unfortunately immersed in her own sense of how badly the estate of the Deceased has been handled since April 2022. That is her perception, and she will not move from it and in any event that is an issue well beyond my remit.

My jurisdiction is limited to the consideration of whether or not the Respondent in the exercise of his professional duty has acted so as to discriminate against the Complainant. I am absolutely satisfied that no Prima Facie has been made by the Complainant. Her attempts to suggest discrimination on any of the grounds proposed were vague and incoherent. I am satisfied that the Respondent had a unique understanding of the Estate of the Deceased and had, in that capacity been asked (by the Deceased) to perform certain tasks and functions. The Service is therefore being primarily provided to the Estate. However, I am mindful of the fact that the Beneficiary must also assume that the Service being provided is being provided without taint of discrimination and therefore will not make the finding urged on me by the Respondent concerning the fact that he is not providing a service to the Complainant.

I am mindful, in reaching this decision, of the fact that it is preferable that the Respondent be fully exonerated from any taint of having discriminated against the Complainant in the manner alleged or at all. I would go further and suggest that, insofar as I have looked at the sequence of events, the Respondent has acted with the utmost propriety and professionalism.

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

CA-00060262-001 – The Complainant has failed to make out a Prima Facie case of Discrimination and the complaint fails

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

CA-00060294-001 - The Complainant has failed to make out a Prima Facie case of Discrimination and the complaint fails