Complaint is Trivial, Frivolous, Vexatious or Made in Bad Faith – 905-1-IPG-083

1. Subject

The right of employees to refuse dangerous work is one of the fundamental rights of employees under the Code.

In 2014, section 129 of the Code was amended and the subsection 129(1) was replaced to more clearly establish when the Minister must investigate following an employer investigation and a continued refusal to work by the employee. For the purposes of this IPG, “continued refusal to work” refers to the employee’s continued refusal to work following the employer’s decision under subsection 128(15).

Pursuant to subsection 128(16), in the event of a continued refusal to work, the employer must immediately inform the Minister and the work place committee or the health and safety representative. The Minister must then investigate the matter, unless the Minister decides, pursuant to paragraphs 129(1)(b) and (c), that the matter is trivial, frivolous or vexatious or the continued refusal to work is in bad faith.

Paragraphs 129(1)(b) and (c) state:

If the Minister is informed of the employer’s decision and the continued refusal under subsection 128(16), the Minister shall investigate the matter unless the Minister is of the opinion that:

1. b) the matter is trivial, frivolous or vexatious; or
2. c) the continued refusal by the employee under 128(15) is in bad faith.

2. Definition

(a) Paragraph 129(1)(b): “… the matter is trivial, frivolous or vexatious …”:

1. “matter” means all circumstances revolving around the refusal to work up to the Minister’s involvement including the initial refusal to work, the employer’s report, the workplace committee members or the health and safety representative report and the revised report pursuant to subsection 129(10.2) if applicable and the continued refusal to work.
2. “trivial” means trifling; inconsiderable; of small worth or importance. Trivial does not require an assessment of reasonableness of the matter. 
3. “frivolous” means lacking a legal basis or legal merit; a matter that has little prospect of success; not serious, not reasonably purposeful;
4.  “vexatious” means without reasonable or probable cause or excuse; harassing; annoying; instituted maliciously or on the basis of improper motives; intended to harass or annoy.

(b) Paragraph 129(1)(c): “the continued refusal by the employee under 128(15) is in bad faith”:

1. “bad faith” means brought with an ulterior motive: for example, motivated by ill will, hostility, malice, personal animosity, lack of fairness or impartiality, lack of total honesty such as withholding information. It includes serious carelessness recklessness and intentional fault. It can be established by direct or circumstantial evidence.

Examples: When a continued refusal is merely intended to annoy or embarrass, to bypass the Internal Complaint Resolution Process, or to resolve a collective bargaining dispute, as opposed to a real health and safety issue.

3. Things to consider when determining whether a matter/continued refusal to work is trivial, frivolous, vexatious or in bad faith respectively

For trivial, frivolous, vexatious, or bad faith:  Has the issue already been determined in the past by the Labour Program (persistent refusal to work on same issue)? If yes, has anything changed from the prior determination? Is there increased health and safety knowledge on the situation? If something has changed or new knowledge has come to light, does it satisfy the applicable definition?

• For trivial or frivolous: Is the matter supported by facts or is it purely speculative or hypothetical in nature? Is it a situation where there is no justifiable reason for the refusal?
• For vexatious or bad faith: Is the matter/continued refusal to work pursued for an improper purpose? Is the matter/continued refusal to work intended to annoy or embarrass?

4. Conclusion

A matter/continued refusal to work will be characterized by the Minister as trivial, frivolous, vexatious or in bad faith if it satisfies the definitions set out in this IPG.