Complainant

Respondent

Parties

Jelena  Korolova

Midlands Properties Limited

Representatives

Self-Represented

Self-Represented

Act

Complaint Reference No.

Date of Receipt

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

CA-00063525-001

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 discriminated against her on the grounds of civil status, race and the fact of her being in receipt of housing assistance payment. In particular, the Complainant submitted that the Respondent failed to make repairs to her apartment, that she was obliged to leave her apartment due to the use of chemicals in a premises below her and that an agent of the Respondent was rude to her during a visit to her premises in June 2023. In denying these allegations, the Respondent strongly denied that the Complainant’s apartment was defective in any way, they denied that the premises below would cause any difficulty to the Complainant and denied the allegations of rudeness on the part of their agent. In addition to the foregoing, the Respondent submitted that the complaints are not actionable in this forum as they do not relate to any allegations of discrimination.

A hearing in relation to this matter was convened for, and finalsied 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 began to experience a series of allergic reactions. In evidence, the Complainant set out her belief that source of the issue was a dry-cleaning business located below her apartment. In this respect, the Complainant opened several medical reports outlining the nature and extent of these issues. On foot of the same, the Complainant requested that she be moved to an alternative apartment within the complex. On each occasion, the Respondent simply ignored her concerns and her request to move. In evidence, the Complainant stated that the allergic reactions became so severe that she was obliged to temporarily move out of the apartment and stay with friends.

In addition to the foregoing, the Complainant stated that the apartment in question was in a state of some disrepair and required various maintenance works. Again, the Complainant complained to the Respondent of this issue on numerous occasions and again, the Respondent failed to take any form of substantive action on foot of the same.

Finally, the Complainant stated that during a visit to her apartment in June 2023, an agent of the Respondent was rude to her and dismissed her concerns without any investigation into the same.

In answer to a question posed by the Adjudicator, the Complainant stated that discriminatory element in relation to the matters outlined above was that the Complainant was of non-Irish origin, and that the Respondents appeared to have some difficulty with such persons.

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 received the medial certificates issued by the Complainants. In circumstances whereby the Complainant was housed with the assistance of the relevant local authority, they submitted that it was for the local authority to approve a transfer request on the part of the Complainant. When this was approved, the Respondent began the process of seeking to transfer the Complainant. Unfortunately, by the time the transfer request was approved, the Respondent had no other units available to transfer the Complainant into. In this respect, the Respondent submitted that they generally had long term tenancies and that apartments would seldom become available in their units. The Respondent further submitted that they could not simply remove a tenant to make way for the Complainant. They denied that other units became available at this time as alleged by the Complainant.

Regarding the maintenance issue complained of, the accommodation manager of the Respondent stated that he inspected the same on request from the Complainant. While an issue was identified, the Respondent made all reasonable efforts to rectify the defect as soon as possible. In this regard, the maintenance manager stated that he had to wait for construction contractors to rectify the issue in question. In evidence, the accommodation manager denied speaking to the Complainant in a rude manner as alleged.

Finally, the owner the dry-cleaning business below the Complainant’s apartment was called to give evidence. This witness stated that all products used by her business were approved by the relevant authority for such use and, in her view, there was no prospect of the same causing any form of injury to the Complainant.

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 defect state of disrepair, that the accommodation manager of the Respondent spoke to her in a rude tone and that the Respondent refused to transfer her to another apartment on foot of a transfer request. 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. In this regard, she outlined her belief regard the injury caused to her by the operation of a dry cleaners located beneath her apartment. She further submitted that the Respondent failed to transfer her to a new apartment when requested to do so by the housing authority. She stated that her apartment was in a state of disrepair for a significant period of time and that an agent of the Respondent spoke to her in a rude manner.

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 she was of non-Irish origin and that her treatment by the Respondent was so poor, that it must have been on this basis.

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)