Duty of Fair Representation
What is a Duty of Fair Representation?
A trade union, or anyone 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.
What is a Duty of Fair Representation Complaint?
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.
How do I know if my union arbitrarily represented me during the grievance process?
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.
How do I know if my union acted in a discriminatory manner during the grievance process?
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.
How do I know if my union acted in bad faith during the grievance process?
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.
What Compensation Can I Reasonably Expect to Receive From a Favourable Decision?
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.
Is There a Time Limit to File a Duty of Fair Representation Complaint?
(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 an 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) Employees 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.
What happens after I submit My Application?
(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 submissions, 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.
Human Rights And Discrimination
An employer and its employees are not permitted to treat any individual differently based on any personal characteristic that is protected under human rights legislation, such as your age, race, religion, illness, disability, place of origin and gender.
If you were or are being mistreated based on these personal traits, we can assist you to take action to protect you from further mistreatment or we can file claims on your behalf to the provincial or federal human rights tribunals seeking damages and corrective action.
If you are a unionized worker and you have grieved workplace discrimination through your union’s dispute process call us to learn how we can help you protect your rights in the event that your union withdraws your grievance or if it appears they are not representing you fairly.
As a unionized employee, you are entitled to file a Human Rights application without your union’s representation and without going through your union’s grievance process. UnionComplaint can prepare your human rights application and provide further representation at the Tribunal.
Ontario’s Occupational Health and Safety Act Matters
Have you been terminated for informing management of incidents of workplace harassment and bullying?
Has the employer been informed of workplace harassment or other safety concerns and failed to reasonably investigate these allegations?
If you have asked your employer to act in compliance with the Occupational Health and Safety Act, or if you have exercised your rights under this legislation the employer is prohibited from subsequently threatening to fire you, suspend or discipline you, deny you benefits that you are entitled to, or terminate your employment.
If you have been penalized we can help you file an Occupational Health and Safety Act Reprisal complaint. As a unionized employee, you are entitled to file an Occupational Health and Safety Act Reprisal Complaint without your union’s representation and without going through your union’s grievance process.
UnionComplaint can help you when it matters most.
What Can UnionComplaint Do For Me?
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 discuss your options for proceeding with a complaint under the appropriate law that governs your employment dispute and what you can expect once you have initiated a complaint.
We can provide you with a fully completed complaint ready for filing at the appropriate legal tribunal as well as legal representation as your case advances through the Tribunal’s or Board’s adjudicative process.