Sunday, 20 September 2015

The Scope of the Duty of Fair Representation

A common misconception among those represented by a union is that the union must take up every fight that presents itself. For example, if a worker is subject to discipline, up to and including termination, the common perception is that the union must step up and file a grievance and prosecute that grievance to the end. However, while Ontario’s labour laws do place certain obligations on unions, those obligations are not as onerous as some might believe.

The Law

The starting point for any discussion of an Ontario union’s duty to its membership is section 74 of the Ontario Labour Relations Act, 1995, SO 1995, c 1, Sch A, which provides as follows:

A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.

While the heading to the section is “Duty of fair representation by trade union, etc.” it is the words “arbitrary, discriminatory or in bad faith” that have the most currency in the section.

In explaining the scope of the duty of fair representation, Vice-Chair Caroline Rowan wrote the following on behalf of the Ontario Labour Relations Board in the case of Murphy v. Ontario Public Service Employees Union, 2001 CanLII 4082 (ON LRB):

[16] The Board's case law with respect to the obligation imposed on trade unions under section 74 of the Act makes clear that section 74 of the Act does not require trade unions to pursue every grievance at arbitration. In fact, the Board has commented that the mere fact that the union has not processed a grievance to arbitration does not constitute a prima facie case of a violation of section 74 of the Act. In Perino Smith, [1991] OLRB Rep. July 912, the Board made the following comments regarding the obligations imposed by section 68 [now 74] of the Act as it relates to the union's decision about whether or not to process a grievance to arbitration:
The Board has made it clear in many cases that what is required of a union in relation to a decision on whether or not to take a grievance to arbitration is that it turn its mind to the problem and consider it in a manner free from irrelevant considerations and arbitrary, discriminatory or bad faith behaviour. See, among others, the case of Domenic Gattellaro, [1983] OLRB Rep. June 844 at paragraph 9 where the Board said:
Section 68 of the Labour Relations Act does not require that a trade union carry a grievance through to arbitration merely because the grievor wants it to do so. Unless the collective agreement gives the grievor that right, it is for the union to decide whether or not to take a grievance to arbitration. Section 68 requires that the union make that decision in a manner which is not arbitrary, discriminatory or in bad faith. It does not provide an appeal to the Board from the union's decision. The question for the Board is not whether the union's decision is the one which this Board would have made in the circumstances, it is whether the union's decision is the result of a process of reasoning grounded on a consideration of relevant matters and free from the influence of irrelevant ones: see Savage Shoes Ltd., [1983] OLRB Rep. Dec. 2067, 6 CLNRB (NS) 134, at paragraphs 36 to 39. The Board has recognized that considerations relevant to a decision whether or not to press a grievance to arbitration include the merits of the grievance and likelihood of its success, the financial commitment involved in proceeding to arbitration and the claims or interests of other individuals or groups within the bargaining unit who may be affected by the arbitration proceedings and their possible results: see Catherine Syme, [1983] OLRB Rep. May 775 at paragraph 120.
The Board has also noted on a number of occasions that union officials cannot be expected to exhibit the skill, ability, training and judgement of a lawyer when assessing the merits of a grievance (see for example, Catherine Symes, supra).

Commentary

The problem with this limited scope of the duty of procedural fairness is that most collective agreements further provide that it is the union that has sole discretion to grieve any issues; the employee has no individual rights. In those cases it is not uncommon for employees to be left completely without remedy, meaning that if the employee is disciplined and believes such discipline to be unwarranted there is nothing the employee can legally do about it.

Such a right presents its own challenges, not the least of which is that it transfers the decision making power concerning whether the employer was justified in its actions to the union. Ultimately, where a union resolves that it will not, for whatever reason, take up a grievance on behalf of one of its member workers what happens is that it is the union who decides whether the worker will ‘have his day in court’ or not. Where the union refuses to take up the grievance, there is no appeal.

Takeaways for Employees with Labour Pains

Going back to the law, the comments above are not to suggest that one’s union has no obligation towards its member workers with respect to filing and prosecuting grievances. The law is clear that the union must not act in a way that is “arbitrary, discriminatory or in bad faith”. While proving that the union acted in such a way is very difficult, it is not completely impossible.

If you are a worker in Ontario and are looking for advice on whether you may have a case for a breach by your union of its duty of fair representation, the professional, experienced and cost-effective employment lawyers for employees at Ottawa's Kelly Santini LLP would be happy to be of service to you.

Contact Me

To reach the author of this blog, Sean Bawden, email sbawden@kellysantini.com or call 613.238.6321 x260. You may also use the contact box at the top of this page.

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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.

Sean Bawden, publisher of Labour Pains, can be reached by email at sbawden@kellysantini.com or by phone at 613.238.6321.

Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP. He is also a part-time professor at Algonquin College teaching Trial Advocacy for Paralegals and Small Claims Court Practice.



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