ADJUDICATION OFFICER DECISION
Complaint/Dispute Reference No.
Date of Receipt
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
In accordance with Section 41 of the Workplace Relations Act, 2015and Section 25 of the Equal Status Act, 2000, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
This is a complaint by Mr. Art Cudejko that he was discriminated against by the Respondent, the Residential Tenancies Board Ireland[RTBI], in breach of Section 5 0f the Equal Status Act, 2000-2015. He complains that this discrimination was discrimination on the grounds of Race.
Summary of Complainant’s Case:
The Complainant entered into a tenancy agreement with his landlord on the 10th April 2015. In December 2016, he says that the landlord sought to increase the rent. The Complainant contacted the RTBI asking that his tenancy agreement be registered with the Board, as it must be. He also advised of a rent increase, which he understood to be in breach of the legislation, insofar as the rent increase was being imposed within the two year period since the commencement of the tenancy.
He received a response from the Tenancies Board advising that all such tenancy agreements must, by law, be registered with them and that they would “actively pursue the landlord in question with regards the registration of the tenancy. Please note that this process does take some time”
He was advised also that the RTBI had contacted the landlord on the rent increase issue. This resulted in the landlord withdrawing the increase demand, at least until the two years of tenancy had elapsed.
The complainant was unhappy with alleged the slow pace of the RTBI to effect registration and asserted that some of the staff of the RTBI “were trying to protect Irish landlord who is trying to avoid fair hearing for invalid notice”.
Arising from this he says that “it looks like [the RTBI officer dealing with his case} is not intellectually fit for her role which unfortunately is hitting ordinary citizens who are demanding justice and fairness on the treatment on the case”. He says that this discriminates against non-Irish tenants and he requires a decision from this Tribunal instructing the RTBI to conduct its affairs more expeditiously and also that there should be compensation awarded as part of the redress sought.
By way of providing proof of discrimination the Complainant presented an unsigned letter from, what I understand to be an Irish lady who says that within two months of signing her tenancy agreement in 2012, it had been registered.
Summary of Respondent’s Case:
In response the Respondent makes their case, under a number of headings to the Complainant, his complaint contained in an ESI form submitted to the Respondent on the 26th February 2019, alleging discrimination and victimisation, on grounds of Race, between the 3rd January 2017 and the 26th February 2019, on the basis that the “RTBI is protecting local Irish landlords against foreign tenants by not enable tenancy registration within reasonable amount of time. RTBI had direct contact details to the landlord including mobile phone and email but is not using this simply communication tool to finish registration process within reasonable time making tenant stressful and not protected against landlord abuse”.
They then go on to make their response under two headings:
1. The applicability of Section 22 of the Equal Status Act, 2000 to this case, supported by, amongst other cases, that of
Mr. Paddy O’Donovan v Garda Olive Donnellan, ES/2001/074 and
2. The nexus between the alleged treatment and the protected ground.With regard to 1 above they say Section 22 of the Act provides that “the Director may dismiss a claim at any stage if of the opinion that it has been made in bad faith or is frivolous, vexatious, misconceived or relates to a trivial matter”.
They say that the meaning and scope of the word “misconceived” as enunciated by Mr. Justice Lynch in
Keane v. Minister for Justice  3 IR 347,
Is that the Claimant’s claim is misconceived if it is incorrectly based in law. The Respondents say that the Complaint is incorrectly based in law and does not come within the Scope of the Equal Status Act. For this reason they say that the Complaint has no reasonable chance of succeeding and therefore that it is frivolous to bring the case. They say that it is also vexatious because it imposes a hardship on the Respondent in having to defend a case that cannot succeed.
They say that “Section 5 of the Equal Status Acts, 2000-2015 prohibits discrimination in providing services to the public generally or to a section of the public, whether the service is provided for a consideration or otherwise. “Service” means a service or facility of any nature which is available to the public generally or a section of the public under the Act”.
The Respondent goes on to say that “there is an obligation on landlords to register tenancies and failure to do so can lead to the RTBI to pursue landlords, where in the opinion of the Board it appears that a particular tenancy, which ought to be registered has not been. This could ultimately result in a landlord being found guilty of a criminal offence.
In the O’Donovan case the Equality Officer considered that “it is clear and plain from the wording of Section 2(1) of the Act that the investigation and prosecution of crime are not services which are available to the public, or a section of it within the meaning of service defined therein. It is my belief that these are State functions which are carried out by the Gardai (and the DPP) on behalf of and for the benefit of the public and society as a whole. They are clearly not services that the public have access to in the way that other services clearly are”. He went on to say that he was satisfied that the Oireachtas did not intend to include the prosecution of crime as services within the scope of the Act.
The Respondent said in a letter to the Complainant on the 26th March 2019:
“Where, in the opinion of the Board it appears that a particular tenancy which ought to have been registered has not in fact been the subject of an application for registration, this could ultimately result in a landlord being found guilty of a criminal offence. The RTBI is not in a position to comment on allegations of a criminal nature against a third party, such as a landlord in this instance. Whilst the RTBI is a service provider under the Act, the actions which are alleged to be discriminatory did not occur as the result of the provision of a service to which the Act applied but arises in the context of a statutory body exercising statutory duties in the public interest.
In relation to 2 above, the Respondent says that the Complainant did not prove a connection between his Complaints of discrimination and victimisation and the facts. In support of their assertion they reference the outcomes of the case of:
Melbury Developments Limited v. Arturs Valpeters, EDA0917, where the Labour Court said in its determination that “Section 85A of the Equality Act, 1998 – 2015 provides for the allocation of the probative burden of cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What these 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 on which an inference of discrimination can be drawn, Section 85A of the Act 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”.
Findings and Conclusions:
I find that, as per the decision of the Equality Officer in the O’Donovan v. Donnellan case, referred to above, this complaint is outside the scope of the Act because the investigation and prosecution of a landlord (in this case), for a criminal offence are not services within the meaning of section 2(1) of the Act.
On the issue of discrimination on the grounds of Race, as claimed by the Complainant, I find that the burden of proof, as articulated in the Valpeters case, above, has not been discharged.
The second complaint on the complaint form was in respect of another tenant whom I understand had a similar complaint to the Complainant here. However that complainant did not attend the hearing.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 9 of the Protection of Employees (Employers’ Insolvency) Acts, 1984 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 9 of that Act.
Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.
I find, arising from the above findings, that the complaint fails.
Workplace Relations Commission Adjudication Officer: