Complainant

Respondent

Parties

Ms. Aisling  Kavanagh

Ms. Margaret Duggan

Representatives

  N/A

Ms. Martina Mullins, Dobbyn & McCoy Solicitors.

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00068136-001

22/11/2024

In September 2022, the Complainant and her family moved into the Respondent’s rental property. In April 2023, the Respondent gave the Complainant six months’ notice as she intended to move back into the rental property. In May 2023, the Complainant applied for social housing and was approved for the Housing Assistance Payment scheme (“HAP”) as part of this application. In August 2023, the Complainant posted on Facebook that she was looking for a long-term rental property as the Respondent required her current rental property from September 2023.

Complainant’s Case:

It was the Complainant’s case that the Respondent then verbally refused to accept HAP in September 2023. She emailed the Respondent the HAP Form on 6 December 2023 and received no response. She said that she sent the Respondent an ES1 Form on 22 May 2024 and that she filed two WRC complaints in May or June 2024. She stated that she withdrew those WRC complaints on or around 5 September 2024 as the Respondent agreed to pay monies allegedly owed and agreed to accept HAP. The Parties engaged in further correspondence.

The Complainant subsequently emailed an ES1 Form to the Respondent on 18 November 2024. She then filed her WRC Complaint Form on 22 November 2024. In her WRC Complaint Form, the Complainant indicated that she had notified the Respondent of her complaint “originally on 22 May 2024 & again on 18 Nov 24”. She also indicated that the most recent date of discrimination was “25/09/24 + 14/11/24 + 17/11/24”. At the Hearing, the Complainant stated that she is seeking compensation for HAP payments which she alleges she was entitled to from September 2023 until October 2024. Finally, the Complainant also submitted that, under advice, she had not sent her section of the HAP Form to Waterford County Council as the rental property is the subject of an ongoing RTB dispute and in the circumstances, Waterford County Council “won’t allow for HAP”.

Respondent’s Case:

The Respondent denies the discrimination allegations in full. She stated that she agreed to a 12- to 18-month tenancy with the Complainant, commencing from September 2022. She stated that due to her personal circumstances, she wants to move back into her home, the rental property. She gave the Complainant six months’ notice in April 2023. However, she said that as the Complainant and her family will not move out, she has been living with her mother. She denied that she verbally refused to accept HAP in September 2023. She submitted that some of the Complainant’s emails were sent to her “Spam” folder and that she did not have sight of them. She submitted that on 29 August 2024, she provided the completed HAP Form to Waterford County Council. She stated that the HAP Form was returned to her by Waterford County Council by way of letter dated 12 November 2024, as the Complainant had failed to complete the requisite section.  

Preliminary Matters:

The Parties were asked to address the preliminary matter concerning time elapsed after notification had been sent to the Respondent, before a WRC Complaint Form was filed. The Parties were referred to section 21(4) of the Equal Status Act 2000-2018 as amended (the “Act”). The Parties were also referred to the guidance on the ES1 Form.

The question of the date of alleged discrimination was also raised with the Parties.

As outlined below, this complaint has been addressed following consideration of the preliminary matter concerning notification.

The Complainant provided detailed written and oral submissions.

Preliminary Matter – Notification:

The Complainant stated that she emailed the ES1 Form to the Respondent on 18 November 2024.

She said that she had called the WRC and that she was told to refer to the other adjudications in her WRC Complaint Form as they were relevant, even though the files had been closed. She said that she emailed everything to the WRC. She also said that she was told to wait until December. She said that she was “not familiar with the situation”. She also said that it was a hard situation in the run up to Christmas. She said that “they said to send it on in”. She said that she had spoken to the WRC around 13 December 2024. She said that she was told that they “had not acted on it”.

At the conclusion of the Hearing, the Complainant stated that she has acted “under the guidance of Threshold, Focus Ireland and [Waterford County] Council”.

The Respondent provided detailed written and oral submissions.

Preliminary Matter – Notification:

The Respondent submitted that her last communication with the Complainant was a text message dated 17 November 2024. The Respondent submitted that she then received a letter from the WRC dated 17 December 2024 referring to the Complainant’s WRC complaint dated 22 November 2024. The Respondent submitted that the Complainant had not complied with the Act and that the complaint should be struck out.

Preliminary Matter – Notification:

Background:

On 18 November 2024, the Complainant emailed the Respondent, attaching the ES1 Form concerning this complaint.

The Complainant received no response from the Respondent.

On 22 November 2024, the Complainant filed her WRC Complaint Form by email. In her WRC Complaint Form, the Complainant stated that she notified the Respondent using the ES1 Form “originally on 22 May 2024 & again on 18 November 24”. She also indicated that the most recent date of discrimination was “25/09/24 + 14/11/24 + 17/11/24”. In her email to the WRC dated 22 November 2024, the Complainant stated, inter alia, “I have attached the completed complaint form, under section 5 of equal status. As I text the Landlord (attached) on 25th September confirming we would be going back to the WRC to have the case re-opened, do we have to adhere to the timeframes with the ES1 form? Especially due to the extreme financial pressure we are both under because of trying to meet the rent each month”.

On 26 November 2024, the Complainant emailed the WRC again. She stated, inter alia, “Please see attached NEW Complaint against the same respondent, Margaret Duggan. I emailed this to submissions on 22/11/24 but there seems to be confusion that the documents were for the old reference number & not a new complaint.” (Note – Capital letters used above as per original text).

The Law:

Section 21 of the Act requires that:

“(2) Before seeking redress under this section the complainant—

(a) shall, within 2 months after the prohibited conducted is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of—

(i) the nature of the allegation,

(ii) the complainant’s intention, if not satisfied with the respondent’s response to the allegation, to seek redress under this Act,

and

(b) may in that notification, with a view to assisting the complainant in deciding whether to refer the case to the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court, question the respondent in writing so as to obtain material information and the respondent may, if the respondent so wishes, reply to any such questions.

(2A) For the purposes of subsection (2) the date of notification is the date on which the notification is sent, unless it is shown that the notification was not received by the respondent.

(3) (a) On application by a complainant the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court may—

(i) for reasonable cause, direct that in relation to the complainant subsection (2) shall have effect as if for the reference to 2 months there were substituted a reference to such period not exceeding 4 months as is specified in the direction, or

(ii) exceptionally, where satisfied that it is fair and reasonable in the particular circumstance of the case to do so direct that subsection (2) shall not apply in relation to the complainant to the extent specified in the direction,

and, where such a direction is given, this Part shall have effect accordingly.

(b) In deciding whether to give a direction under paragraph (a)(ii) the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court shall have regard to all the relevant circumstances, including—

(i) the extent to which the respondent is, or is likely to be, aware of the circumstances in which the prohibited conduct occurred, and

(ii) the extent of any risk of prejudice to the respondent’s ability to deal adequately with the complaint.

(4) 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.”

(Note – Relevant text is in bold).

The ES1 Form:

There is a prescribed form available, the ES1 Form, to assist complainants in notifying respondents of their intention to take a case under the Act. It is not mandatory to use this form however, in this case, the Complainant did use the form. 

The guidance on the ES1 Form states:

“7. What happens after I send the form?

If you have received no reply after one month, or if you receive a reply and are not satisfied with it, you can then make a complaint under the Equal Status Acts to the WRC at www.workplacerelation.ie or to WRC, O’Brien Road, Carlow, R93 W7W2. You will need to complete a complaint form, which is available on-line from www.workplacerelation.ie.

Note that there is a separate time limit for making a complaint. The WRC must receive the complaint within six months of the incident you are complaining about (or six months from the last incident, if there have been similar incidents.)”

(Note – Relevant text is in bold).

Findings and Conclusion:

Preliminary Matter – Notification:

The language in section 21(4) of the Act is clear. The Director of the WRC “shall not” investigate a case unless satisfied either that the respondent has replied to the notification, or that at least one month has elapsed after the notification was sent to the respondent.  

On 18 November 2024, the Complainant took the step of notifying the Respondent of her complaint by sending the Respondent an ES1 Form. She received no response from the Respondent. On 22 November 2024, approximately four days after sending the ES1 Form to the Respondent, the Complainant filed her WRC Complaint Form. In the circumstances, it is clear that: the Respondent did not reply to the notification; and that one month had not elapsed after the Complainant sent the notification to the Respondent, before she filed the WRC Complaint Form.

In considering this matter I also note section 21(3)(a)(ii) of the Act which provides for a discretion to set aside the provisions of section 21(2) in relation to the Complainant. I note, however, that this discretion should only be applied “exceptionally”.

The Complainant gave evidence that she was “not familiar with the situation”. However, I note that she also outlined that she was in receipt of information from “Threshold”, “Focus Ireland”, Waterford County Council and the WRC. I also note that the guidance on the ES1 Form refers to the relevant timeframes. Moreover, I note that when emailing the WRC her Complaint Form on 22 November 2024, the Complainant referred to the applicable ES1 Form timeframes, demonstrating an awareness of the same. Finally, I note that the Complainant also referred to, inter alia, her financial difficulties. I have considered all relevant circumstances, including those outlined under section 21(3)(b). I am mindful that the discretion under section 21(3)(a)(ii) of the Act should be applied “exceptionally”. On the evidence before me, I am not satisfied in the particular circumstances of this case, that the provisions of section 21(2) of the Act should be set aside.  

Consequently, I find for the Respondent in relation to the preliminary matter concerning notification. Pursuant to section 21(4) of the Act, this case shall not be investigated as it has not been demonstrated either that the Respondent replied to the notification or that at least one month elapsed after the notification was sent to the Respondent.    

For the reasons set out above, I find for the Respondent in relation to the preliminary matter concerning notification. Pursuant to section 21(4) of the Act, this case shall not be investigated as it has not been demonstrated either that the Respondent replied to the notification or that at least one month elapsed after the notification was sent to the Respondent. 

Equal Status Acts 2000-2018, Notification.