The Labour Relations Act
Duty of Fair Representation

STACEY REGINALD BALL

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STACEY REGINALD BALL

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The Labour Relations Act governs various aspects of labour relations for most Ontario workplaces

THE ACT

Ontario Labour Relations Board

“Labour relations” here refers to unionized employees. The Act deals with the certification and decertification of unions, the collective bargaining process, mandatory grievance arbitration, strikes and lock-outs, unfair labour practices and special rules with respect to the construction industry. The Act also covers the Ontario Labour Relations Board (OLRB). Unionized employees are governed by a collective bargaining agreement, which sets out many terms and conditions of the working relationship. The agreement will typically contain a grievance and arbitration procedure. If an employee has an issue in the workplace, they need to go through the union and follow the procedure outlined in the collective agreement. The union will then decide what to do with the employee’s complaint.

The union has the final decision on how far a grievance should proceed, and whether or not the grievance should go on to arbitration. Unions have considerable discretion in deciding what to do with an employee’s grievance. They can consider any legitimate factors beyond the grievor’s (employee’s) interests. Unionized employees are owed a duty of fair representation by their union, as per Section 74 of the Act. This duty of fair representation states that a trade union shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any employee. If an employee feels their union has breached this duty, they can file a claim under Section 74 to the Ontario Labour Relations Board.

​Labour Relations Officer

The standard to prove a breach of the duty of fair representation is quite high. The specific definitions of “arbitrary”, “discriminatory” or behaviour that is in “bad faith” have been developed over years. A union acts arbitrarily if its conduct is superficial, capricious, indifferent or in reckless disregard of an employee’s interests. A union exhibits discriminatory conduct if a factor such as sex, race, religion or age impacts the way a union handles a complaint. A union acts in “bad faith” if they make decisions based out of ill-will, including hostility, revenge or dishonesty.

The OLRB will assign a Labour Relations Officer to the file once the application is made, whose goal it is to help the parties reach a settlement. If the parties cannot settle, then the process may proceed to a consultation with a Vice-Chair of the Board. Note that if the OLRB is investigating your case for breach of the duty of fair representation, they are not ruling on the merits of your initial complaint or grievance. Please note that the above information does not constitute legal advice. It is general information about the law. If you require legal advice with an employment issue, please contact the experts at Ball Professional Corporation.

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“ Stacey Ball is the ultimate in employment lawyers. He got me an excellent settlement and I referred him to fellow long term employees whom I know were very happy in their outcome. I cannot recommend him enough; his name alone will give you clout. This is the guy who wrote the book. He is the best. ”
- John Cunningham, Toronto, ON

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“ Stacey Ball is the best employment lawyer you can have on your side in Toronto. There is no employment lawyer representing employees with a stronger track record than him. In my experience, he gets the results that meet your needs, even against the most stubborn employers. Had I not gone with Stacey, I would have gotten nothing because that was what my employer insisted on until he intervened on my behalf. He is the best and top employment lawyer. ”
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“ I first used Stacey over a decade ago to review personal and business employment contracts. Stacey is arguably the best employment law lawyer in both Canada and south of the border. His intimate knowledge of the law is second to none. He is readily available for any situation which requires a quick, frank and authentic response. I would highly recommend him for both individuals and organizations alike.​ ”
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