Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00014637-002

26/09/2017

The complainant filed the within complaint on 27 September 2017. It was delegated to me by the Director General on 30 November 2017.   On receipt and study of the complaint form and the facts set out therein, I formed the view that the within complaint may be frivolous and vexatious. I heard the parties’ positions on this matter on 11 January 2018.

The complainant’s representative accepts that his client earned well above the minimum wage, but argues that Section 23 of the National Minimum Wage Act, 2000, obliges an employer to provide an employee with a statement of the employee’s hourly rate of pay. It was therefore argued that regardless of the complainant’s actual pay rate, the respondent was in technical breach of the Act. The complainant’s representative stated that his client applied for such a statement, but that it was not provided. The complainant’s representative deemed the respondent’s response to the request, which was that the complainant was provided with pay slips and that these should suffice, to be inadequate and in breach of the statute.

The respondent submits that payslips were provided at all times to the complainant – these were opened in evidence in another case between the same parties heard on the same day – and that the within complaint was entirely without substance.   The respondent confirms that the complainant was paid well above the minimum wage and argued that the within complaint was indeed frivolous and vexatious since any outcome would not change the position between the parties in any way, and that the complainant had suffered no detriment of any kind.

In his complaint form, the complainant stated that he earned €2,400 per month and worked 50 hours each week. Taking the complainant’s case at is absolute height, by disregarding annual leave and other holidays and assuming 50 hours of work for 52 weeks, this would give 2600 work hours per year or 216.67 ≈ 217 hours per month. Even so, €2,400 divided by 217 give an hourly wage of €11.05, well above the current national minimum wage. As noted above, this fact was accepted by the complainant’s representative. According to documentation provided by the respondent, the complainant earned €11.23 per hour normal pay and €14.81 per hour on overtime pay.

As regards Mr Novak’s legal argument, Section 23(1) of the National Minimum Wage Act does indeed state that

Subject to subsection (2), an employee may request from his or her employer a written statement of the employee's average hourly rate of pay for any pay reference period (other than the employee's current pay reference period) falling within the 12 month period immediately preceding the request.

However, the Act goes on to state in subsection (2) that

(2) An employee shall not make a request under subsection (1) in respect of any pay reference period during which the hourly rate of pay of the employee was on average not less than 150 per cent calculated in accordance with section 20, or such other percentage as may be prescribed, of the national minimum hourly rate of pay orwhere the request would be frivolous or vexatious. [Emphasis added].

In other words, the statute itself gives employers some leeway to consider such a request frivolous and vexatious. Contrary to the assertions of the complainant’s representative, the obligation to provide the statement is not absolute. Whilst such a decision not to provide a statement may in itself give rise to legal proceedings, I am satisfied that in the within case, where it is common case that the complainant earned above the national minimum wage and payslips were provided to him in line with legal requirements, the respondent’s response of referring the complainant back to his payslips was entirely reasonable and in line with the statutory exception provided above.

The Law on Matters which are Frivolous and Vexatious

A legal complaint is said to be frivolous when any decision made by a Court or Tribunal cannot change, or improve upon as it may be, the outcome which already exists for the parties. It may simultaneously be rated as vexatious, in that the respondent is put to the inconvenience and expense to defend such an action regardless of its lack of possible success.

The meaning and scope of the words ‘frivolous and vexatious’ were succinctly articulated by a decision of the Supreme Court by Barron J in Farley v Ireland & Ors [(1997) IESC 60, at page 1521] in which he stated:

‘So far as the legality of the matter is concerned frivolous and vexatious are legal terms, they are not pejorative in any sense or possibly in   the sense that Mr. Farley may think they are. It is merely a question of saying that so far as the plaintiff is concerned if he has no reasonable chance of succeeding then the law says that it is frivolous to bring the case. Similarly, it is a hardship on the defendant to have to take steps to defend something which cannot succeed and the law calls that vexatious.’‘

In Fay v Tegral Pipes Limited & Ors [[2005] 2 IR 261], the Supreme Court reiterated the principles already well established. McCracken J delivered the Court’s judgement stressing that the ‘real purpose’ of the courts’ inherent jurisdiction to dismiss frivolous or vexatious claims was firstly to ensure that the courts would be used only for the resolution of genuine disputes and not for ‘lost causes’ and, secondly, that parties would not be required to defend proceedings which could not succeed.

I am satisfied that this situation pertains here. The legislative purpose of the National Minimum Wage Act, 2000, can be summarised from its long title as twofold: To set the rates of the national minimum wage in line with prevailing economic conditions, and to ensure that workers do not earn any less than it at any given time, as well as various enforcement mechanisms for the latter objective.

The obligation of an employer to provide a statement pursuant to S. 23 is not absolute, the complainant was in receipt of proper payslips, and the parties are agreed that the complainant earned above the national minimum wage: Accordingly, no decision by the Commission could change or improve the situation between the parties. In those circumstances, I am of the view that bringing the within complaint was indeed frivolous, and certainly vexatious with regard to the hassle and expense visited on the respondent in defending the matter, and I dismiss it accordingly.

S. 42 Workplace Relations Act 2015 – frivolous and vexatious – National Minimum Wage Act 2000 – S. 23(2) – obligation to provide statement not absolute – position between parties cannot be improved by litigation – common case that complainant earned above national minimum wage.