Unionized Employees and Unfair Representation Applications
The duty of fair representation applies to all employees in a bargaining unit represented by the union. Sometimes, unionized employees may feel that their union is not representing them effectively or they feel that the result they got from their grievance was inadequate. In these instances, some unionized employees may want to go to the courts. It is important to note that unionized employees are bound by the collective agreement signed between the union and employer. These agreements often provide that terminations must be for just cause and any complaints must be addressed through grievances and arbitration provisions of the collective agreement. In most cases, it is the union that is responsible for pursuing a grievance. The Supreme Court of Canada in Societe d’energie de la Baie James c. Noel held that sub-standard representation does not allow an employee to bring forth a wrongful dismissal claim in a separate forum nor does it give the employee a right
If you believe your union has not represented you fairly, you can bring an unfair representation application for the unions breach of its duty of fair representation. This duty applies to all workers in the bargaining unit that the union represents. The duty requires that unions act fairly, remain impartial and act without ill intention or discrimination when initiating a worker’s grievance or negotiate new terms and contracts with the employer. If your union acted arbitrarily in failing to pursue your grievance without reason, or acted in bad faith by failing to respond to your complaints against your employer, you have rights to bring legal action against it. It is important to keep in mind that the duty of fair representation does not require that all grievances be pursued until the last stage. If the union feels that your case is not strong, it does not have to legally represent you. Unions are only required to not be arbitrary, discriminatory or act in bad faith under section 74 of the Labour Relations Act, S.O. 1995.
The Supreme Court of Canada decision in Canadian Merchant Service Guild v. Gagnon,  1 S.C.R. 509 (S.C.C.) summarizes the scope of this duty:
- “The exclusive power conferred on a union to act as spokesman for the employees in a bargaining unit entails a corresponding obligation on the union to fairly represent all employees comprised in the unit.
- When, as is true here and is generally the case, the right to take a grievance to arbitration is reserved to the union, the employee does not have an absolute right to arbitration and the union enjoys considerable discretion.
- This discretion must be exercised in good faith, objectively and honestly, after a thorough study of the grievance and the case, taking into account the significance of the grievance and its consequences for the employee on the one hand and legitimate interests of the union on the other.
- The union’s decision must not be arbitrary, capricious, discriminatory or wrongful.
- The representation by the union must be fair, genuine and not merely apparent, undertaken with integrity and competence, without serious or major negligence and without hostility towards the employee.”
Even if you are not a member of a union, but there is a union where you work, the duty of fair representation still applies to non members and you may ask the union to file a grievance if you are disciplined or fired. Complaints that allege section 74 have been breached are dealt with by a Vice-Chair of the Ontario Labour Relations Board. When a complaint is filed, the union or employer will seek to dismiss it without a hearing on the basis that the complaint does not disclose a prima facie case. This is similar to the motions rule under Rule 21 of the Rules of Civil Procedure. If the pleading has a proper case for breach of the statutory standard of fair representation, a labour relations officer will meet with you and your union to try to settle the dispute or at least narrow the issues. Afterwards, the matter will be referred to a Vice Chair who can decide the issues with a consultation (informal hearing), or schedule a full hearing. Most cases are dismissed without even a full hearing under section 74 given the high and technical statutory standard that must be met. If you feel your grievance was not adequately pursued and that your union acted arbitrarily, discriminatorily or in bad faith against your complaint, contact top Toronto employment lawyer Stacey Ball to help you pursue a potential unfair representation application before the Ontario Labour Relations Board.
DUTY OF FAIR REPRESENTATION
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.
What is the Duty of Fair Representation?
Unions have a duty to treat represent members fairly and honestly, and in a manner that is not arbitrary, discriminatory, or in bad faith. The duty of fair representation applies to situations in which a union is representing a member in connection to the member’s employer. This includes union decisions in relation to grievances and when conducting negotiations.
WHAT DOES “ARBITRARY” MEANS?
Being treated in a manner that is “arbitrary” by a union typically means that the union has handled a member’s matter or grievance in a way that is superficial, capricious, indifferent, or with reckless disregard of the member’s interests. For example, the union may have acted arbitrarily if it has handled a member’s matter in a superficial manner, has failed to adequately investigate the issue, or has not given sufficient consideration to the member’s interests when acting on his/her behalf. However, unions are allowed to make mistakes, and not every error or incorrect assessment of a grievance will be seen to be “arbitrary” conduct.
While inadvertent errors, honest mistakes, or poor judgment may not be “arbitrary” treatment or the purposes of the duty of fair representation, flagrant errors or gross misconduct may be considered “arbitrary” treatment.
What does “Discriminatory” mean?
Being treated in a manner that is “discriminatory” typically means that the union has improperly been influenced by factors such as race, religion, sex, sexual orientation, age, disability, or any other illegal or prohibited ground set out my human rights legislation. Discriminatory treatment could be towards an individual or it could be towards a group of members. However, not every situation in which there is differential treatment, or where the previously mentioned factors are involved, is a situation in which there has been discrimination.
What does “Bad Faith” mean?
Acting in “bad faith” typically means that a union has acted with an improper purpose. This could include the union, or a representative of the union, having engaged in conduct or making decisions that were motivated by personal feelings of hostility or ill-will towards a member. It may also include being deceitful or dishonest.
LABOUR RELATIONS BOARD
What do I do if I think my union is not representing me fairly?
If a union member believes that their union is failing to abide by the duty of fair representation, they can make an application to the Labour Relations Board alleging the violation of the duty of fair representation. However, a unionized employee may first want to seek legal advice regarding their situation and the potential unfair representation. While a lawyer will not be able to negotiate with the unionized employee’s employer, they may be able to help the union member communicate with their union and remind the union of their duty of fair representation.
Stacey Reginald Ball is an experienced employment lawyer with Ball Professional Corporation. Our office is located in Toronto, Ontario, and handles various employment law matters, including wrongful dismissal. If you have questions regarding the duty of fair representation, please consult a lawyer for advice.
Canadian Employment Law
Mr. Ball is author of the authoritative and definitive text Canadian Employment Law - published by Canada Law Book (a division of Thomson Reuters). The text is used and cited by lawyers, law schools and judges across Canada.
To order Mr. Ball's Canadian Employment Law please visit the Carswell Store by clicking here or on the button below.