A trade union, or any one of its representatives, that is the bargaining agent for a unit of employees, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the bargaining unit with respect to their rights under the collective agreement.

A Duty of Fair Representation complaint is an application by employees who complain to their Labour Board that they have not been properly represented by their union when a grievance was filed against their employer. The Applicant will claim that their union acted in a manner that was arbitrary, discriminatory, in bad faith, or a combination of these elements.

Arbitrary conduct by the union generally means that a union has failed to adequately investigate an employee’s grievance or issue and has handled the employee’s case in a superficial manner. It can also mean that a union has not given sufficient consideration to the employee’s interests when acting on his/her behalf or has been seriously negligent in representing an employee.

A trade union must not discriminate against an employee on any illegal or prohibited ground, such as age, race, religion, sex or medical condition. It also means that a union should not treat individuals or groups of employees differently based on unreasonable or irrational grounds.

Bad faith has been found to include conduct or decisions of the trade union that were motivated by personal feelings of hostility or ill-will toward an employee. It may also include deceitful or dishonest conduct.

During your consultation with UnionComplaint, we will conduct a thorough review of your documents, which includes your collective agreement, previously filed grievances, correspondence between you and your union and other relevant materials that support your complaint. We will then provide you with a fully completed complaint ready for filing at the appropriate legal tribunal.

UnionComplaint charges a flat rate to prepare your application for filing before a provincial or federal Labour Board. Because we charge a flat fee you will know upfront what our cost is and there are no surprise fees later.

The Ontario Labour Relations Board (OLRB) and the Canadian Industrial Relations Board (CIRB) allow Applicants to request damages that are appropriate to their specific matter. The Board will then determine what damages will be ordered.

Remedies sought will depend on the nature of your dispute and facts of your complaint. Examples of common remedies that an applicant may seek include the following:

• Reinstatement of their employment without loss of seniority
• Compensation for lost earnings from the date of termination to the date of the Board’s order
• The Union assume all the legal fees and expenses incurred to assert the Applicant’s rights under section 74 of the Ontario Labour Relations Act, or section 34 of the Canada Labour Code.
• The Board order arbitration between the union and employer with respect to the Applicant’s grievance(s).
• An order permitting you to obtain your own independent legal counsel (instead of the union’s lawyers) and for the Union to pay for the costs of your own lawyer.

(a) Employees working in Ontario under Provincial Legislation

It is recommended that Applicants whose employment falls under Ontario’s Labour Laws file their application as soon as reasonably possible. While there is no statutory time limit for filing an application, an Applicant risks having their complaint dismissed for delay. If there is excessive delay they will need to provide a good explanation (ex., the applicant was affected by a death in the family or they were severely injured or disabled and unable to file a complaint at that time.)

(b) Employee’s working under Federal Jurisdiction

Applicants whose employment falls under Federal jurisdiction must file a complaint within 90 days of the date they knew or should have known of the circumstances giving rise to their complaint (as required by section 97(2) of the Code), regardless of whether any other complaint process has been used.

(a) Employees working in Ontario under Provincial Legislation

If you are filing your application to the OLRB the Board has standard procedures that must be followed after you have provided your union and employer with a copy of your complaint and the OLRB has received your application.
Following the delivery of your complaint, the union and the employer, if it wants to participate in the case, have ten days (not including weekends, statutory holidays and any other day the Board is closed) after receiving the Application Package to respond.

A Labour Relations Officer will normally be assigned by the Board to meet with the employee and the union (and possibly the employer), and try to help them reach an agreement that will settle the application.

If the application is not dismissed the Applicant and responding parties (Union and possibly the employer) may participate in a mediation meeting. If a settlement cannot be reached the dispute may proceed to a consultation meeting or a trial at the Board.

(b) Employee’s working under Federal Jurisdiction

If you are filing your application to the CIRB, an industrial relations officer will review your complaint. If additional information is requested, you will be notified and have 7 calendar days to provide the requested information.
The CIRB will send a copy of your complaint to the union and to the employer for information purposes.

The complaint is then referred to a panel of the Board to assess whether there are sufficient grounds for your complaint to proceed.

• If there is no basis for a complaint, a decision will be issued and the file will be closed.
• If your complaint warrants further consideration, then the union and employer will be asked to file a response.
• If you want to reply to the union’s and/or the employer’s responses you will have an opportunity to submit your response within ten (10) calendar days.

Following these submission, a resolution conference will be scheduled. If the complaint is not settled, the matter is sent back to a panel of the Board for a decision. The panel may decide the matter without holding an oral hearing.