Complainant

Respondent

Parties

Robert  Frazer

Brightwater Selection (Ireland) Limited

Representatives

  Self-Represented

Ray Ryan B.L. instructed by Niamh Loughran Beale & Co LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act 2012

CA-00062486-001

26/03/2024

The Complainant referred a complaint to the WRC on the 26th March 2024 wherein he claimed that as an agency worker he was not informed by the Hirer of a vacant position with the Hirer.

The Complainant was not represented and made his own case. He relied on the narrative as outlined in the WRC Complaint Form.  I was provided with supplemental documentary evidence in support of the Complainant’s case. No objection was raised to the Complainant reading from the narrative on his complaint form in the making of his case. The evidence adduced by the Complainant was challenged as appropriate by the Respondent’s Representative.

The Complainant alleged that as an agency worker he was not informed by the Hirer of a vacant position with the Hirer and that the Respondent was complicit. He stated in evidence that he only had one issue and that was the failure to advise him of a vacancy with the Hirer.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

The Respondent had full legal representation at this hearing.  The Respondent provided me with a written submission on the 17h July 2024 together with a comprehensive book of documentation. No oral evidence was provided by the Respondent.

By way of preliminary issue the Respondent’s Representative submitted that the WRC Complainant Form did not disclose any claim against the Respondent and no presentable claim has been brought against the Respondent and therefore, in the legal sense of the phrase in section 42(1) of the Workplace Relations Act 2015 (hereinafter referred to as “the 2015 Act”), the complaint against the Respondent should be dismissed on that basis that it is “frivolous or vexatious”.

The Respondent placed the Complainant upon strict proof of it having engaged in any breach of its statutory obligations. The Respondent’s Representative submitted that the maxim “he who asserts must prove” applies to the instant case and that the burden of proof is on the Complainant. Reference was made to the judgment of the High Court in Mulholland v. QED Recruitment Limited [2015] IEHC 151.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

In making these findings, I have considered the documentation submitted by the parties and the oral evidence adduced a nd the submissions made at the hearings summarised above.

The Complainant referred the within complaint to the WRC on the 26th March 2024 against the Respondent wherein he claimed that the Hirer, General Paints Limited, failed to inform him of a vacant position with the Hirer and that the Respondent was complicit. He detailed his complaint in the space provided on the WRC Complaint Form. The Complainant attached a number supporting documents one of which was an email dated the 18th March 2024 addressed to the WRC with the subject “Robert Neil Frazer resubmission of CA-00060047” wherein reference was made to “Paragraph 1 of schedule 2 of the Protection of Employees (Temporary Agency Work) Act 2012 Sections: 6,11,13(1),14,23,24”.

At the hearing the Complainant proffered no evidence in relation to a breach of sections 6, 13(1), 14, 23 and 24 of the 2012 Act and stated in direct evidence and under cross-examination that he only had one issue and that was the failure on the part of the Hirer and the Respondent to advise him of a vacancy with the Hirer.

Section 11 of the 2012 Act is entitled “Access to employment by Hirer” and it provides that:

“A Hirer shall, when informing his or her employees of any vacant position of employment with the Hirer, also inform any agency worker for the time being assigned to work for the Hirer of that vacant position for the purpose of enabling the agency worker to apply for that position.”

“Agency Worker” and “Hirer” are defined in section 2 of the 2012 Act as follows:

“agency worker” means an individual employed by an employment agency under a contract of employment by virtue of which the individual may be assigned to work for, and under the direction and supervision of, a person other than the employment agency;

“hirer” means a person engaged in an economic activity for whom, and under the direction and supervision of whom, an agency worker carries out work pursuant to an agreement (whether in writing or not) between the employment agency by whom the agency worker is employed and the first-mentioned person or any other person;

It is common case that at all material times the Complainant was an agency worker, the Respondent was an employment agency and General Paints Limited was the Hirer.

The Respondent’s Representative submitted that the WRC Complainant Form did not disclose any claim against the Respondent and no presentable claim has been brought against the Respondent and therefore, in the legal sense of the phrase in section 42(1) of the 2015 Act the complaint against the Respondent should be dismissed on that basis that it is “frivolous or vexatious”.

Section 42(1) of the 2015 Act is entitled “Dismissal of claim by adjudication officer” and provides as follows:

“42(1) An adjudication officer may, at any time, dismiss a complaint or dispute referred to him or her under section 41 if he or she is of the opinion that it is frivolous or vexatious.”

It is widely accepted by the Courts that the terms “frivolous” and “vexatious” are legal terms which can be often used interchangeably as held by the Barron J in James Farley v. Ireland, An Taoiseach, Cabinet Ministers and the Attorney General [1997] IESC 60:

“So far as the legality of matters is concerned frivolous and vexatious are legal terms. They are not pejorative in the 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.”

Birmingham J. provided a legal definition of “frivolous” in Peter Nowak v. Data Protection Commissioner [2012] IEHC 499, where he held that: “frivolous, in this context does not mean only foolish or silly, but rather a complaint that was futile, or misconceived or hopeless in the sense that it was incapable of achieving the desired outcome”. 

I further note In J.O’N v. S McD & Others [2013] IEHC 135, Birmingham J, in considering applications made by the defendants to strike out the plaintiff’s claim for failing to disclose a reasonable cause of action and as being frivolous and/or vexatious, described the words “frivolous” and “vexatious” as follows:

“…the words “frivolous” and “vexatious” are terms of art, they are legal terms and they are not used in a pejorative sense. They merely mean that the plaintiff has no reasonable chance of succeeding and that, because there is no reasonable chance of success, it is frivolous to bring the case. By the same token it imposes a hardship on the defendant if he has to expend time, effort and money in defending an action which cannot succeed and that is regarded as vexatious…”

In dismissing the plaintiff’s case, Birmingham J stated as follows:

“…In my view the plaintiff has no reasonable chance of succeeding against the first named defendant and it would be oppressive to require the defendant to have to take on the burden of defending proceedings which are fundamentally misconceived…”

I also note the decision in Goode Concrete v. CRH plc [2012] IEHC 116 wherein, at para. 36, it was stated:

“A plaintiff's right of access to the Courts is not absolute and the Court has jurisdiction to prevent the right being abused by, for example, dismissing a case for inordinate delay or as frivolous, vexatious or bound fail in order to prevent injustice to a defendant (see Barry v Buckley [1981] IR 306).”

In Loughrey v. Dolan [2012] IEHC 578 Laffoy J. relied on a decision of the Ontario High Court of Justice in Re Lang Michener and Fabian (1987) 37 D.L.R. (4th) 685, cited by the High Court in Riordan v. Ireland (No. 5) [2001] 4 I.R. 463 and Behan v. McGinley  [2011] 1 I.R. 46, and which listed a number of factors which tend to indicate that proceedings may potentially be vexatious in nature and thus amenable to being struck out. These factors, which are not meant to be exhaustive, are inter alia:

(a) whether the issues in dispute are matters which have already been determined by a court of competent jurisdiction, i.e. res judicata;

(b) where it is obvious that an action cannot succeed, or if the action will lead to no possible good, or if no reasonable person can expect to obtain relief;

(c) where the action is brought for an improper purpose, including harassment and oppression of other parties, as opposed to asserting legitimate legal rights;

(d) where grounds and issues sought to be litigated tend to be rolled forward into subsequent actions and repeated and supplemented;

(e) where the person instituting the proceedings has failed to pay the costs of unsuccessful proceedings;

(f) where the plaintiff persistently takes unsuccessful appeals against judicial decisions.

(g) where there is the persistent taking of unsuccessful appeals from judicial decisions.

The terms “frivolous or vexatious” were carefully considered by the High Court in Patrick Kelly v. The Information Commissioner [2014] IEHC 479 which is instructive as to the meaning of these terms:

“As a matter of Irish law, the term “frivolous or vexatious” does not, as noted by Birmingham J. in Nowak, necessarily carry any pejorative connotations but is more concerned with the situation where the litigation (or, in this instance, application) can be described as futile, misconceived or bound to fail.”

The Respondent submitted that, within the meaning of the 2012 Act, at all material times it was the employer, the Complainant was an agency worker and that “the Hirer” in this case was General Paints Limited and that the Complainant has no maintainable claim against the Respondent.

Having considered the oral evidence of the Complainant and the oral and written submissions of the parties and having regard to section 11 of the 2012 Act which places the obligation on the Hirer to inform an agency worker of any vacant position of employment with the Hirer, not the employer, I agree with the Respondent that the within complaint was erroneously and impermissibly brought by the Complainant against the Respondent.

In light of all of the above, I am satisfied that this complaint is misconceived, incapable of achieving the desired outcome and bound to fail.  I am of the view that this complaint is clearly encompassed by the legal definition of frivolous or vexatious as set out in the aforementioned cases. Therefore, I dismiss this complaint in accordance with section 42 of the 2015 Act.   

For the reasons set out above I dismiss the complaint in accordance with section 42 of the Workplace Relations Act 2015.