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Was Complaint Against Newspaper "Frivolous or Vexatious"?

Last week we looked at a High Court case in which the judge granted an order restraining a teacher from pursuing frivolous or vexatious complaints through the courts. This week we look at a recent decision of the Workplace Relations Commission (WRC) in which it was alleged that the Complainant was also pursuing a frivolous or vexatious claim. Our Adrian Twomey examines the decision in the case of A Complainant v A Newspaper, ADJ-00037564.

The anonymous complainant apparently sent a press release to a newspaper. The newspaper chose not to publish the press release and made no contact with the complainant. In a development that is difficult to understand, the complainant then referred a complaint to the WRC alleging that the newspaper's failure to publish the press release or to contact him about it constituted discrimination on the grounds of his alleged disability. The complaint was made under the Equal Status Acts which prohibit discrimination by those who provide services to the public.


Based on that limited information alone, the complaint appears to have been a very odd one indeed. That seems to have also been the view taken by the Adjudication Officer. She dismissed the claim, relying on section 22 of the Equal Status Act 2000 (as amended). That section provides that claims may be dismissed if the WRC are of the opinion that they have been made "in bad faith" or are "frivolous and vexatious, misconceived" or relate to a "trivial" matter.

The Adjudication Officer reviewed the caselaw on "frivolous or vexatious" complaints and relied, in particular, on the Canadian case of Re Lang Michener and Fabian, (1987) 37 D.L.R. (4th) 685. The decision in that Canadian case listed a number of factors that tend to indicate that proceedings may potentially be vexatious in nature. These factors, which are not meant to be exhaustive, are:

  • whether the issues in dispute are matters which have already been determined by a court;

  • 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;

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

  • where issues sought to be litigated tend to be rolled forward into subsequent actions and repeated and supplemented;

  • where the person instituting the proceedings has failed to pay the costs of unsuccessful proceedings;

  • where the plaintiff persistently takes unsuccessful appeals against judicial decisions.

Noting that the Complainant had already pursued numerous claims under the Equal Status Acts and was familiar with the law and applicable legal principles, the Adjudication Officer decided that the complaint was misconceived and dismissed it.

Based on the information available on the WRC website, the decision appears to have been absolutely logical. It is frustrating in the extreme for businesses and employers to have to spend time and money defending claims that are misconceived, vexatious, frivolous or otherwise without any merit. Nonetheless, it appears to be a continuing and increasingly significant problem. Whilst decisions such as those in this case help, it is worth noting that the Complainant effectively faced no penalty for pursuing the claim and will presumably be free to file further frivolous claims in the future. Perhaps it is time for the government to considering introducing legislation permitting the WRC to award legal costs against complainants who pursue such frivolous claims.

If you believe that you are on the receiving end of frivolous, vexatious or misconceived claims, please feel free to contact our Adrian Twomey for advice and assistance.


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