ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00025672
Parties:
| Complainant | Respondent |
Anonymised Parties | A Tenant | A Charity |
Representatives | NiallKelly | O’Gorman Solicitors |
Complaint:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00032593-001 | 29/11/2019 |
Date of Adjudication Hearing: 29th March 2021
Workplace Relations Commission Adjudication Officer: Louise Boyle
Procedure:
In accordance with Section 25 of the Equal Status Act, 2000following 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.
Background:
The complainant submits that he was discriminated against on the grounds of disability and that the respondent failed to provide reasonable accommodation. Submissions were sought from parties regarding anonymising the decision. Parties did not object to naming the parties in the decision but I have made the decision to anonymise the decision owing to the sensitivities with the complainant’s disability. The hearing on 29th March 2021 was heard remotely, pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. 359/2020, which designated the Workplace Relations Commission as a body empowered to hold remote hearings. |
Summary of Complainant’s Case:
Preliminary Issue # 1 – Notification of Hearing to Respondent: A hearing took place on September 25th 2020 which the complainant attended and the respondent was not in attendance. In response to the submission by the respondent that they were not on notice of the hearing of September 25th 2020 due to an incorrect email notification, the complainant’s representative submitted that the complainant had proceeded with some of their submission at the hearing of September 25th 2020. It was their expectation that the hearing would conclude on March 29th 2021 and it was not appropriate that the complainant should have go through matters again. The complainant accepted that the email address which they had provided on the complaint form for the respondent was incorrect but to proceed as a new hearing would cause considerable upset to the complainant . The complainant’s representative submitted that the complainant was medically fit to proceed with the hearing. Preliminary Issue # 2 – Submission of Complaint to the WRC: In response to the respondent’s submission that the complainant had sent the complaint form to the WRC prematurely, the complainant advised that they had sent in the ES1 form to the respondent on 6th November 2019. A response was received but it was evident that the respondent was not addressing the complainant’s concerns and the complainant submitted the complainants to the WRC on 29th November 2019. The complainant submitted that this was allowed for under the legislation. Substantive Issue: The complainant submitted that the complainant’s tenancy agreement was terminated owing to his disabilities and that the respondent failed to provide him with reasonable accommodation. It was further denied that the notice of termination was issued because of a trial period. The complainant submitted that the respondent did not regard the behaviours of the complainant appropriate and that these behaviours did not fit the profile of other tenants and these behaviours were owing to the complainant’s disabilities. In May 2019 the complainant required urgent accommodation owing to the effects of a gross physical assault at his previous accommodation and a history of disabilities. Prior to that he had been living alone and dealing with a lifetime of setback and disabilities. Following representations from a health provider, the complainant took up accommodation with the respondent. It was submitted that although the respondent outlined that they had been under pressure to provide the complainant with accommodation, the respondent repeatedly harassed the complainant so that the complainant would react in a manner that would allow the respondent’s claim that he was behaving in an anti-social manner. This would give the respondent grounds to terminate the contract. It was also submitted that the respondent refused to provide food to the complainant owing to an alleged incident but treated another tenant in a different manner. A very legally worded tenancy agreement, including a six month trial period, was given to the complainant despite it clear that the complainant had literacy issues. Those involved in securing the accommodation for the complainant did so to allow him time to recover from a distressingly acute phase of his experience in previous accommodation and to allow him commence recovery and rehabilitation in the community while building trust in those around him. The respondent would have known that inappropriate close, physical contact, or interference with the complainant would impede his early stages of his recovery and residency and could only serve to create greater distress for the complainant. It was submitted that no sooner than the complainant started his tenancy, management set about unnecessarily, deliberately and continuously interfering with the complainant’s security and privacy in his accommodation. It was submitted that Ms A, a volunteer with the respondent, repeatedly entered the complainant’s home without invitation and gave the complainant stern instructions on how to conduct himself and on how to adhere to the existing arrangements of fittings, furnishing and furniture. She also insisted he attend mass and leave religious pictures in place. The complainant was issued a notice of termination and requested the assistance of Mr B (the complainant’s representative) who wrote to the respondent in November 2019 by way of setting out the complaints on Forms ES1 with notification that if the complaints were not immediately addressed fairly, the Forms ES1 would become the basis of a referral to the Workplace Relations Commission. Mr B also copied the letter to a number of the Board members in the hopes they would convene a meeting and decide to end the infantile nonsense that was taking place. Mr B received a phone call from Mr C, a director of the respondent asking for a meeting which took place on 8th November 2019 where there was agreement, subject to board approval, that notice of termination would be withdrawn subject to commitment by the complainant that he would not play his music loudly and that the respondent would commit to no further interference in the complainant’s day to day living. However, the respondent replied on 13 November 2019 advising that the complainant was in the care of the health service provider and that the respondent was awaiting the health service provider’s response on the matter. The complainant dismissed any suggestion that the respondent required the involvement of the health service provider to engage with the complainant. It was put forward that the respondent used this excuse as a reason to get rid of the complainant. In their correspondence, the respondent did not accept that there was any interference in the complainant’s day to day living. The complainant believed that the respondent did not intend to engage with the complainant in any meaningful manner and therefore a complaint was submitted to the WRC. It was submitted that the complainant’s termination of tenancy and services is in breach of the declared charitable aims of the respondent including to benefit the community in “deprived or disadvantaged circumstances”and provide relief of poverty and deprivation caused by “poor housing conditions and homelessness”. It was known by all involved with the respondent that the complainant was suffering the harrowing and stressful consequences of a brutal assault, in addition to a number of long term disabilities including post-traumatic stress disorder (PTSD), diabetes and kidney disease which, all together affected his physical and mental functioning at the time. It was also known that the complainant did not have the literacy skills to enter into a tenancy agreement. The complainant should never have been asked to enter into a tenancy agreement and there should not have been a trial period established until after such time that the complainant settled in. The respondent had a duty of care to the complainant in line with their aims and what the complainant needed was a supportive, compassionate and empathetic approach which would have helped the complainant re-establish trust in others. The management’s interference, strict rule-based regime and lack of process in dealing with the complainant’s alleged transgressions was unprofessional and unethical .The respondent’s notice of termination was issued on the ground of the complainant’s disabilities. The complainant was unlawfully forced to enter into a tenancy contract that he had no idea as to its import and furthermore the complainant has limited reading skills. Any ‘mis-behaviour’ on the complainant’s part within the initial time frame could not be considered deliberate anti-social behaviour in any form in the normal meaning of that phrase, especially in light of the provocative behaviour of the management towards him. It was submitted that the complainant’s notice of termination was discriminatory when compared to how another tenant was treated who engaged in similar behaviour but yet was allowed to remain and allowed to continue to dine at the respondent. The complainant’s termination came about solely from his “not fitting in” with the ‘normal’ profile of residents in accommodation. Whatever the complainant did by way of ‘anti-social behaviour’ was acting out of his stress and fears. In direct evidence the complainant advised that Ms A called to his home and told him that he could not put the tv by the window and she said he could not take down a holy picture. He denied that he made threats and never interfered with alarms and that the garda never gave him any warning about noise levels. The complainant denied he understood the tenancy agreement and did not recall if anyone went through it with him and also confirmed that an employee from the health provider was with him when he signed it. The complainant confirmed that he was told by Ms A that he upset someone and that he was blocking the toilet and that he did not engage appropriately with the other tenants. During cross examination the complainant denied that he played music loudly, denied that he threatened to dig up the Wi-Fi and denied that he banged on his wall. The complainant denied that he was involved in an incident with another tenant around the use of the dryer and denied that he upset anybody talking about his difficult past. During cross examination the complainant appeared very upset and the hearing adjourned for a short period of time which I address in my findings and conclusions. Evidence from Mr B included that he was asked by the complainant to get involved to address the complainant’s grievances with the respondent which he did not feel were addressed. Interaction with the respondent at the beginning was conciliatory and Mr B felt that the respondent wished to resolve the issues but that this later changed and Mr B believed the respondent did not wish to have the complainant in their accommodation as he did not meet the profile of other tenants who were in the accommodation. |
Summary of Respondent’s Case:
Preliminary Issue # 1 – Notification of Hearing to Respondent: A hearing took place on September 25th 2020 which the complainant attended and the respondent was not in attendance. The respondent submitted that they were not on notice of the hearing that had been held on 25th September 2020 and that it appeared that the email address recorded by the WRC, which had been submitted by the complainant, was incorrect ending in “.net” instead of “.ie”. The respondent submitted that they were prejudiced as the respondent was not on notice of this first hearing. The respondent requested that the hearing should proceed as a fresh hearing. Preliminary Issue # 2 – Submission of Complaint to the WRC: The respondent submitted that when they received the ES1 form from the complainant on 8th November 2019 they replied to advise the complainant that they would need to consider his complaint in more detail and would respond within a month. The complainant was hasty in his decision to proceed with a submission to the WRC and the complaint should not proceed on that basis. Substantive Issue The respondent advised that their housing accommodation is in a community type setting and that accommodation is normally provided for elderly people but that they do make exceptions as the need arises. Representation was made on behalf of the complainant in May 2019 by a health service organisation who advised that the complainant was in urgent need of accommodation and asked could the respondent facilitate him with accommodation. Following completion of the application form by the complainant in mid May 2019, in the presence of somebody from the health service, the complainant met with the admissions board and the respondent agreed to give the complainant a six month trial period in accommodation and he was given the keys to the accommodation. In June 2019 it was submitted that the complainant played his music too loudly and this continued regularly. In June 2019 the respondent became aware that the complainant was self-harming and the respondent was advised by a social worker that the complainant was suicidal. The respondent requested a meeting with the social worker and this meeting, following some postponements took place on 1 July 2019 which was attended by the social worker, Ms A and a uniformed garda. At this meeting the social worker advised that she was dealing with the complainant. Complaints of loud music continued and inappropriate behaviour of the complainant including shouting and upsetting other tenants. On 11 July 2019 the respondent wrote a letter to the health service provider outlining their concerns with the complainant. On 22 July 2019 a complaint was received from a tenant who alleged that the complainant removed her clothes from the dryer and that the complainant used the tenant’s money to dry his own clothes. On 12 August 2019 the respondent advised the health service provider that they were not qualified, equipped or resourced to deal with the complainant who had been placed in their care. It was furthermore set out that the respondent had not been provided with all the relevant information regarding the needs of the complainant. On 30 August 2019 the health service provider advised that the complainant should be at any meetings which took place and based on clinical practice it was necessary to respect his wishes. It was submitted that because the health service provider failed to respond adequately, the respondent was left with no alternative but to seek legal advice on how to deal with the issues that arose. A notice of termination had been issued on 30th August 2019 but withdrawn and a second notice of termination issued on 4th October 2019 effective 1st November 2019 and the complainant appealed this decision to the Residential Tenancy Board (RTB) who deemed it a lawful termination. On 13 November 2019 the respondent advised the health service provider that a new representative for the complainant had come on notice and outlined their continued concerns over the complainant. On 25 November 2019 the health service provider advised that the complainant was an adult with the capacity to make his own decisions and that it is within the complainant’s rights to seek advice from whoever he wishes. It was further set out that the health service provider were not in a position to discuss the support the complainant was receiving and that “he is an adult with vulnerabilities around which he is being supported but he has capacity to make his own decisions” The respondent was sympathetic to the complainant’s situation and allowed the complainant to remain in the respondent’s accommodation while attempts were made to secure alternative accommodation. The complainant’s inappropriate behaviour continued including causing upset by telling a tenant the alarm system did not work, further reports of loud music on 26 December 2019 and toilets blocked which it was alleged was caused by the complainant’s actions. The respondent denied that they were on notice of disabilities that may have caused any of the inappropriate behaviours. It was denied that the complainant had been discriminated against and that notice of termination had been served because of the complainant’s behaviour which caused upset to other tenants. It was submitted that the respondent did not know the complainant had PTSD and that the respondent never received any medical reports or letters that outlined the behaviours demonstrated were because of any alleged disability. The respondent showed kindness by leaving the complainant in the property until alternative accommodation was secured. It was denied that the complainant was treated differently then another tenant when issues arose with the chef and dining at the premises. The behaviour of the complainant was very different to the behaviour of this other tenant. Evidence of Mr C, Director of the Charity, included that the respondent has been in operation for over 20 years providing accommodation to mostly older people. Mr C submitted that they did not know what disabilities the complainant had when he took up accommodation on compassionate grounds. Mr C confirmed that the social worker advised the respondent that the complainant’s loud music might be because of the complainant’s deafness in one ear but that loud music was just one of many issues which arose. Mr C advised that they put a hold on the complainant’s notice of termination to give more time to the health service provider to secure accommodation for the complainant. In evidence Mr C submitted that they had been told that the complainant had been abused in his previous accommodation and that was the reason for the urgency in the complainant securing new accommodation. It was denied by Mr C that he knew that the complainant had PTSD and did not recall the complainant’s representative advising him in November 2019 but that regardless, the notice of termination had been issued and expired by then. It was denied that the respondent knew that the complainant was suicidal and that Mr C only found this out much later. Mr C’s evidence was that the complainant was upsetting other tenants by his actions and the respondent had never dealt with the actions of a tenant like this before and that Mr C is not medically qualified to diagnose the complainant. Evidence of Ms A was that the complainant did not seem happy with the accommodation and that he did not like the cooker provided and that he did not want a holy picture in the room. She gave evidence that she approached the complainant about his loud music following complaints and that a social worker advised her that he was suicidal but that she was never told that the complainant had PTSD. Ms A submitted that most of their tenants suffer stress and that she has worked as a volunteer with the organisation for over 20 years and that she had not encountered a tenant like the complainant. She submitted that he had somebody with him when he signed the tenancy agreement and that if he did not understand anything he could have raised it or the person accompanying him could have raised it. She confirmed that she did wonder about his literacy levels but that he had somebody with him when he signed the tenancy agreement and denied that she ever touched the complainant. If the complainant was unable to live independently he should not have been living there as tenants are expected to live independently. In the past tenants who were no longer able to live independently would secure other more suitable accommodation. Ms A confirmed that the complainant appeared jittery at her first meeting with him and moved around in his chair a lot but she did not notice anything that indicated he could not live independently or that pointed to any disability. |
Findings and Conclusions:
Preliminary Issue # 1 – Notification of Hearing to Respondent: A hearing was scheduled for September 25th 2020 and the complainant attended. The respondent did not attend and the hearing proceeded as notice of hearing had been sent to the respondent to an email address provided by the complainant. The hearing could not fully conclude on that day and a second date was scheduled for hearing the complaint scheduled for 29th March 2021. Parties were notified of this second hearing by post and in advance of the second day for the hearing the respondent advised the WRC on 5th February 2021 that they had not been on notice for the hearing of September 25th 2020. At the hearing on 29th March 2021 both the complainant and respondent were in attendance. The respondent submitted that notification of the first day of the hearing had been sent by the WRC to an incorrect email address. The complainant submitted that he had gone through submissions at the first day of the hearing which had been very difficult for him and that it was unfair to have to go through it again. It was accepted by the complainant that that they had submitted an incorrect email address for the respondent in error and that the respondent was not on notice of the first date of the hearing. Having heard submissions from both parties and following a short adjournment, I advised parties that I was satisfied that the respondent had not been on notice of the first day of the hearing owing to an incorrect email address and that that a fresh hearing would proceed on 29th March 2021. With no objection from parties the hearing, therefore, proceeded. Preliminary Issue # 2 – Submission of Complaint to the WRC: The respondent submitted that an ES1 form had been received from the complainant on 8th November 2019. The respondent replied on November 13th 2019 and set out that a formal response would be issued within one month. The complainant referred the complaints to the WRC on 29th November 2019. The respondent replied with an ES2 to the complainant on December 6th 2019. The respondent submitted that the complainant had prematurely submitted his complaint to the WRC prior to the expiration of the one month. The complainant submits that the respondent had responded to the ES1 on November 13th 2019 and the response was unsatisfactory and it was clear that the issue would not be resolved such that they were left with no choice but to refer the matter to the WRC which they did on 29 November 2021. Section 21(4) sets out that The Director of the Workplace Relations Commission or, as the case may be, the Circuit Court shall not investigate a case unless the Director of the Workplace Relations Commission or the Circuit Court, as the case may be, is satisfied either that the respondent has replied to the notification or that at least one month has elapsed after it was sent to the respondent. Based on all the evidence, I am satisfied that the respondent’s response on November 13th 2019 was a reply to the notification as defined by the Act and that I have jurisdiction to investigate this complaint. Substantive Issue: The complainant submits that he was discriminated against on the grounds of disability and submits that his disabilities include PTSD, kidney disease, hearing loss and diabetes and that the respondent failed to provide reasonable accommodation to him. The complainant acknowledged the good work which the respondent does but that the respondent did not allow the complainant to remain in his accommodation as he did not fit the profile of tenants the respondent would normally house. The respondent denies that they discriminated against the complainant and submits that the complainant’s tenancy was terminated during a trial period and was deemed lawful by the RTB. Section 2 of the Actsets out disability” means— ( a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body, ( b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness, ( c) the malfunction, malformation or disfigurement of a part of a person’s body, ( d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or ( e) a condition, disease or illness which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour; “discriminate” means to discriminate within the meaning of section 3(1) or 4(1); Under Section 3(1) 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, ( b ) where a person who is associated with another person — (i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and (ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph ( a ), constitute discrimination, or ( c ) where an apparently neutral provision would put a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. (2) As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are: g) that one is a person with a disability and the other either is not or is a person with a different disability (the “disability ground”), Under Section 4 discriminationincludes “…a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service. (2) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question. (3) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers does not constitute discrimination if, by virtue of another provision of this Act, a refusal or failure to provide the service in question to that person would not constitute discrimination. (4) Where a person has a disability that, in the circumstances, could cause harm to the person or to others, treating the person differently to the extent reasonably necessary to prevent such harm does not constitute discrimination. Section 38A of the Acts applies to all complaints of discrimination under the Equal Status Acts and requires that the complainant, in the first instance, establish facts from which discrimination may be inferred. Where such a prima facie case has been established, the onus shifts to the respondent to rebut the inference of discrimination. The complainant submits that he was discriminated against on the grounds of his disabilities. The complainant submits that the respondent was aware of the complainant’s disabilities, did not provide reasonable accommodation and issued notice of termination because the behaviours of the complainant were different to the behaviour of other tenants and that these behaviours were owing to the complainant’s disabilities. The complainant submits that another tenant with different disabilities was treated more favourably when issues arose. The respondent submits that they were not aware of the complainant’s disabilities, no medical evidence was provided to support that any behaviours demonstrated were owing to any alleged disabilities, that notice of termination was deemed lawful by the RTB and that the complainant was issued a notice of termination as provided for under the trial period clause of his tenancy agreement. In A Technology Company v A Worker (EDA0714), albeit an employment equality case, the Labour Court notes that one “… must be alert to the possibility that a person with a disability may suffer discrimination not because they are disabled per se, but because they are perceived, because of their disability, to be less capable or less dependable than a person without a disability. The Court must always be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution…if the protected factor or characteristic is more than a “trivial influence” in the impugned decision, a claim of discrimination will have been made out.” I note that the complainant indicated that he had numerous disabilities including kidney disease, diabetes, hearing loss and PTSD; however, submissions and evidence were focussed around the disability of PTSD and reasonable accommodation for same. For completeness, no evidence was proffered at the hearing regarding the specific nature of the allegations of discrimination and reasonable accommodation on the grounds of the complainant’s disabilities of diabetes, kidney disease and hearing loss and the complainant has failed to establish a prima facia case of discrimination on those disabilities. Following the hearing the complainant forwarded additional submissions including a note from a GP confirming the complainant suffered with PTSD which was copied to the respondent. The respondent submits that this medical notification was submitted after the submission of complaints to the WRC. The respondent submitted that they were not aware the complainant suffered PTSD and that they were not aware that the complainant required any reasonable accommodation for any alleged PTSD disability. I note that the complainant struggled to sit still during the hearing and found it difficult to articulate his complaints, give evidence and engage in cross examination and appeared upset and distressed on many occasions. In particular the complainant became very distressed during cross-examination and an adjournment took place. Following the adjournment, the complainant’s representative advised that the complainant suffered a seizure but was able to proceed. Despite the complainant’s significant upset during the hearing, I am satisfied that the complainant was given ample opportunity to present his complaints. The respondent submits they had known the complainant suffered stress, as do many of their tenants, but did not know that the complainant specifically suffered from PTSD. Based on all the evidence and the submissions including how the complainant presented himself at the hearing, I find that a reasonable person would assume from a brief interaction with the complainant that he suffered with what appears to be a significant stress related disability and that the respondent was aware of this disability. It was accepted that the respondent which is a registered charity, is run mostly by volunteers with one part-time employee and provides accommodation to mostly older people but that, on occasion, the respondent provides housing accommodation to other persons. Following representations from a health provider, on behalf of the complainant, the complainant signed a tenancy agreement effective 24th May 2019. The complainant gave evidence that he did not understand the terms of the tenancy agreement. The respondent confirmed that they believed the complainant had literacy issues by the manner in which he signed the tenancy agreement and that a social worker was present with the complainant when this agreement was signed. The complainant could not recall if anyone explained the tenancy agreement but I am satisfied that the complainant was accompanied with a suitable person to support and explain all terms of the tenancy agreement and that the complainant had capacity to make his own decisions as affirmed by the health service provider in their correspondence. The respondent submitted that during the tenancy the complainant played loud music, removed clothes from the dryer and used another person’s credit to dry his own clothes, raised his voice, interfered with an alarm system and upset other tenants such that they were left no alternative but to issue notice of termination as allowed for during the trial period of the tenancy agreement. The respondent engaged in correspondence with the health provider regarding the complainant including on 12th August 2019 when the respondent advised the health provider: “a gentleman has been placed in our care and we are not equipped, qualified or resourced to meet his specific needs”. It appears from the correspondence that the health provider made efforts to seek alternative accommodation for the complainant but had difficulties securing same. The complainant’s representative engaged with the respondent to try and secure agreement on how best to manage the alleged difficulties but there was confusion over whether the respondent had permission to engage with the representative or whether the health provider needed to be involved. It was unfortunate that the health provider did not attend the hearing to give evidence. During his evidence the complainant repeatedly denied that any of the incidents ever occurred but his representative submitted that even if the incidents did occur, the behaviours demonstrated were as a result of the complainant’s PTSD disability and that the respondent failed to provide reasonable accommodation for the disability. In Graham Anthony and Co Ltd v Mary Margetts, EDA 038, an age discrimination case, the Labour Court remarked: “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”. No medical evidence was provided to support the claim that the complainant’s alleged behaviours complained of by the respondent were as a result of his PTSD and I note that these behaviours varied from playing loud music, shouting, removing clothes from a dryer, using somebody’s credit, giving misinformation about alarms. The respondent submits that they were left with no alternative but to issue a notice of termination to the complainant on 4th October 2019 and the complainant submitted a complaint to the RTB who found the notice of termination was valid. It would appear that the health service provider delayed in their responses on many occasions which was very unhelpful to all the parties, and that after the notice of termination was issued, the health provider advised the respondent on 25th November 2019 that the complainant “is an adult with certain vulnerabilities around which he is being supported but he has capacity to make his own decisions”. It further sets out in this letter that the health provider is “not aware of what specific supports you were asked to provide to (the complainant)….(the complainant) is not seeking any specific support from the management or staff of (the respondent) currently”. It would appear from the exchange of correspondence that while not wishing to breach the complainant’s privacy by disclosing any disability, the health provider affirmed the complainant had capacity to make his own decisions and it is of significance relevance that they set out in correspondence that the complainant “is not seeking any specific support from the management”. The respondent allowed the complainant to remain in his accommodation until such time that the health provider was able to secure other accommodation and the complainant left the respondent’s accommodation in January 2020. Having heard all the evidence and submissions I find that the respondent was aware the complainant suffered with a stress related disability. The respondent was unhappy with some of the behaviours demonstrated by the complainant including playing loud music, how the complainant interacted with other tenants including using another tenant’s credit; but the complainant has failed to establish that these behaviours were because of his stress related disability or that reasonable accommodation was required. The health provider clearly set out the complainant did not require any specific supports and was also somebody with capacity to make his own decisions. Issues had arisen with another tenant but I prefer the evidence of the respondent that this had been resolved and is was not possible to resolve the numerous issues that arose with the complainant. I do note that it would have been more useful if the health service provider had kept in closer contact with both the complainant and respondent to assist with the complainant’s transition into the respondent’s accommodation. In all the circumstances I find that the complainant who has disabilities has not adduced other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred. The complainant has not established a prima facie case of discrimination on the disability ground or for reasonable accommodation and, therefore, the respondent has not engaged in prohibited conduct. |
Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
The complainant has not established a prima facie case of discrimination on the disability ground or for reasonable accommodation and , therefore, the respondent has not engaged in prohibited conduct. |
Dated: 12-01-22
Workplace Relations Commission Adjudication Officer: Louise Boyle
Key Words:
Equal status act, discrimination, disability, reasonable accommodation |