Complainant

Respondent

Parties

Irina Artemjeva

Midlands Properties Limited  

Act

Complaint Reference No.

Date of Receipt

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

CA-00058389-001

20/08/2023

The Complainant is a tenant in an apartment owned and controlled by the Respondents.

On 20th August 2023, the Complainant referred the present complaint to the Commission. Herein, she alleged that the Respondent discriminate against her on the grounds of civil status, race and her being in receipt of housing assistance payment. In particular, the Complainant submitted that the Respondent failed to make repairs to her apartment, that they orchestrated a campaign of harassment against her and that they either caused the water to be cut off from her apartment or failed to rectify the same. In denying these allegations, the Respondent submitted that the Complainant’s apartment had been inspected by the local housing authority and had, during the Complainant’s tenancy, ben deemed to satisfy the requirements of that body. They Respondent further submitted that the allegation regarding the standard of the Complainant’s premises had been litigated numerous times in other fora and was deemed to be finalised by these bodies. They accepted that the water supply had intermittently reduced to the Complainant’s apartment but stated that this was an issue with Irish Water and was largely out of their hands. Finally, they absolutely denied any campaign of harassment or intimidation against the Complainant.

A hearing in relation to this matter was convened for, and finalised on 22nd October 2024. The hearing took place at the Mullingar Courthouse, Co. Westmeath. Following a brief review of the ES1 and ES2 forms, it was apparent that the notification requirements imposed by the Act were complied with.

No issues as to my jurisdiction to hear the complaint were raised at any stage of the proceedings.

In evidence, the Complainant stated that she resided at an apartment owned and controlled by the Respondent. During the tenancy in this apartment, the Complainant raised numerous issues regarding the standard of the apartment. While the Respondent did, eventually, take some action in relation to this issue, the Complainant experienced a significant delay in relation to the same.  In addition to the foregoing, the Complainant stated that for a significant period of time she experienced an intermittent water supply to her apartment. Again, she raised this issue with the Respondent, and again they failed to take any form of substantive action in relation to the same.

Finally, the Complainant submitted that the Respondent had organised a campaign of harassment against her. In this respect, she submitted that the Respondent permitted her neighbours to engage in anti-social behaviour, that they organised meetings with the other tenants to discuss the Complainant and that they coerced other tenants into making false complaints to the Gardaí in respect of the Complainant.

By submission, the Respondent denied discriminating against the Complainant or any form of wrongdoing in relation to the issues raised by her.

In this regard, the Respondent stated that they were the owners and operators of the building in which the Complainant resided. They stated that they had a long history of engagement with the Complainant in respect of the allegations of purported disrepair to her apartment. In this regard, they stated that the relevant housing authority had inspected that apartment and deemed the same to be compliant with their requirements. They further stated that this issue had been the subject of numerous other referrals to the RTB. In this regard, they opened a document from that body stating that a final resolution had been achieved in relations to the matter. Aside from stating that the apartment is not in a state of disrepair, the Respondent submitted that as far as they were concerned, the matter is closed. ,

Regarding the issue in resect to the Complainant’s water supply, they stated that on receipt of the Complainant’s information in this regard, they sought to contact Irish Water to rectify the issue. In this regard, the manager of the premises opened numerous messages between the Respondent and that body. In this regard, the Respondent submitted that the issue with the water supply were out of their hands and, in any event, the issue had resolved by the date of the hearing.

Regarding the final set of allegations, the Respondent absolutely denied any allegations of harassment. In this regard, the accommodation manager accepted that the Complainant raised issued regarding anti-social behaviour on her floor. On each occasions these issues were raised, the accommodation manager reviewed the CCTV footage of the corridor to determine what occurred. On each occasion the manager could not determine that any such incidents occurred. In this regard the Respondent stated that the Complainant could contact the Gardaí in the event of any further allegations of anti-social behaviour, but that their ability to respond was somewhat limited. In evidence, the directors of the Respondent and the accommodation manager denied either organising meetings to discus the Complainant or inducing other tenants to make complaints to the Gardaí.

Regarding the present case, the Complainant has alleged that the Respondent discriminated against her on the grounds of race, civil status and the fact of her receipt of housing assistance. The Complainant’s evidence in this regard was that her apartment was in a defective state of disrepair, that the Respondent either caused or allowed the apartment’s water supply to be restricted and that the Respondent engaged or encouraged a campaign of harassment against the Complainant. By response, the Respondent denied each of the allegations raised by the Complainant and submitted that they were unsure as to how the same related to an allegation of discrimination as actionable under the impleaded Act.

In this regard, Section 3(1) of the Act provides that discrimination occurs,

“..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)…in this Act referred to as the ‘discriminatory grounds’.

Regarding the burden of proof in respect of such claims, Section 38A(1) provides that,

"Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary."

In the matter of In Melbury Developments Ltd v Valpeters [2010] ELR 64, the Labour Court, in considering a similar burden of proof under the Employment Equality Acts, held that,

“…mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

In the case of Olumide Smith -v- The Office of the Ombudsman [2020] IEHC 51, Simmons J. stated that,

“The effect of these legislative provisions is that a complainant is required to discharge a reduced burden of proof, and once this is done, the burden of proof is reversed. As explained by Advocate General Mengozzi in Case C415/10, Meister ECLI:EU:C:2012:8, [22], the effect of the burden of proof provisions under the Racial Equality Directive (and other related Directives) is that a measure of balance is maintained between the parties, enabling the complainant to claim his or her right to equal treatment but preventing proceedings from being brought against a respondent solely on the basis of the complainant’s assertions.”

Regarding the instant case, the Complainant has raised numerous allegations of poor treatment by the Respondent. While it is noted that the Respondent strongly denied each of the allegations raised on a substantive basis, they further submitted that the same did not constitute allegations of discrimination. When this was put to the Complainant, she stated that the Respondent appeared to “have a problem” with persons from her country of origin. By response, the Respondent stated that they have persons from various nationalities living in their apartment block. They strongly denied that they had any issue with the Complainant’s (or anyone other) nationality and submitted that had been engaging with the Complainant for years regarding her various complaints.

In this regard, it may be seen that the allegation of the Complainant in relation to discrimination in the provision of services is based on her speculation that the adverse treatment arose as a consequence of her country of origin. Such a position falls foul of the prevention of proceedings “being brought against a respondent solely on the basis of the complainant’s assertions” as cautioned against in the authority cited above.

Having regard to the foregoing, I find that the Complainant has not discharged the initial burden of proof imposed on her by the Act. In such circumstances, I find that the Respondent has not engaged in prohibited conduct as defined by the Act.

I find that the Respondent has not engaged in prohibited conduct as defined by the Act.

Equal Status, Section 38A(1)