Unions and the Duty of Fair Representation

Written on behalf of Peter McSherry

It is well understood that, in Canada, those employed pursuant to the common law and those employed as members of unions, are subject to different laws and legislation. This is because union members are members of a collective bargaining unit and as such, their interests are represented by their union. This means that although a person employed at common law may sue their employer for any number of legal breaches, including wrongful termination, union members are afforded no such opportunity; rather, union members must resolve any employment-related disputes in a grievance process before an arbitrator or labour board. The grievance process must be initiated by the union on the behalf of the employee, and is not initiated by the employee him or herself.

Unions in Ontario are bound by the Labour Relations Act to honour a duty of fair representation of all union members. So, what happens if a union member disagrees with how their union is dealing with their grievance? Does a union member have any recourse to hold their union to account to represent them in employment-related matters? In this blog, we explore the union’s duty of fair representation, including what it entails, to whom it applies and when it arises.

Nurse with Litany of Complaints About Hospital Seeks Grievance Process Initiation

Corey Neumeister v ONA Ontario Nurses Association involved several complaints by the employee, who at all material times worked as a registered nurse for the defendant hospital. The employee has, since 2018, worked as one of the hospital’s Geriatric Emergency Management Nurses and has also served as the vice-chair of the hospital’s Joint Health and Safety Committee. As a registered nurse, the employee is a member of a union: the Ontario Nurses Association (ONA).

The employee filed an application under the Labour Relations Act, 1995 (LRA) alleging that his union, the ONA, had violated section 74 of the LRA, which section dictates that a union must act fairly in representing all of its members. In particular, the employee raised a litany of allegations pertaining to the union’s failures to support him in his efforts to grieve the hospital’s behaviour with respect to inquiries about his benefits, intrusions on his clinical workspace (from which certain patient files had been removed in violation of patient privacy legislation), and concerns raised in his capacity as the vice-chair of the Joint Health and Safety Committee with respect to the various safety issues of the hospital, to name just a few.

The employee further alleged that the concerns he had raised with respect to an incident of workplace violence had not been appropriately addressed by the hospital or the union, and that concerns with respect to risk assessment and infection control in various departments of the hospital went similarly ignored. The employee’s most significant allegation was that a lawyer for ONA advised the employee that ONA would not represent him in a complaint he had filed before the Ontario Human Rights Tribunal (HRTO).

It must be noted that ONA has filed two grievances on the employee’s behalf: one alleging that the hospital interfered with ONA’s ability to properly represent its members with respect to their rights under the Occupational Health and Safety and Act (OHSA) in that it had reprised against the co-chair of the Joint Health and Safety Committee (i.e., the employee in this case) and another asserting a violation of the OHSA and the collective agreement by engaging in harassment and reprisal against the employee. These grievances were following the normal course and were being heard by an arbitrator but had not yet reached resolution at the time this application was commenced.

A Union’s Rights and Responsibilities Under the Labour Relations Act, 1995

The employee in this case brought his complaint under section 74 of the LRA which, as above noted, dictates that a trade union must act fairly and may not engage in arbitrary, discriminatory or bad faith conduct in representing any member of the union.

In evaluating whether a particular union has lived up to this requirement, the Labour Board will apply the following definitions of the terms above delineated:

“a) “arbitrary” means conduct which is capricious, implausible, or unreasonable in the circumstances. This is often demonstrated by a failure by the union to properly direct its mind to a situation, or to conduct a proper and meaningful investigation when one appears to be called for;

b)  “discriminatory” means distinguishing between or treating employees differently without good reason;

c)  “bad faith” is conduct motivated by hostility, malice, ill-will or dishonesty.”

Any union member who asserts that their union has violated section 74 must provide prima facie proof that the union in question owes the employee in question a duty of fair representation in accordance with section 74, and that that duty has been breached. It has been established through precedent law that the test employed by the Board in assessing the evidence is to determine whether the employee has offered facts that, if true, would violate section 74 of the LRA. This is a low standard that does not require significant evidence. As such, the Board only dismisses section 74 applications in circumstances “where it is clear and obvious the application does not make out a case for the relief sought”.

The Scope of the Union’s section 74 Duty

The duty imposed on a union by section 74 of the LRA relates only to those matters that are included within the exclusive jurisdiction of the trade union, and thus does not extend to every single interaction or dispute between a given employer and employee. For example, any unionized employee is able to refuse, of their own accord and without assistance of a union, work they deem unsafe within the definition provided by the OHSA, as such a matter falls within the purview of OHSA, which empowers all employees, unionized or not, to act in their own best interests in such circumstances.

Thus, if the matter in dispute does not come within the purview of the union’s representational rights as defined in the collective agreement and guiding documents, then the matter is not one to which the duty of fair representation, as defined in section 74 of the LRA, extends.

Did the Union Breach section 74 in this Case?

In this case, the Board was satisfied that none of the allegations contained in the employee’s application amounted to a violation of the duty of fair representation, which was ultimately fatal to his application because “bald allegations, without more, cannot be said to meet the even low threshold necessary to plead a prima facie violation of the” LSA.

Moreover, the Board noted that the union was not bound to represent the employee in a complaint before the HRTO and furthermore, documentation offered by the union indicated that the employee had advised ONA, in writing, that he did not wish to have them represent him in his HRTO complaint. As such, ONA could not be held responsible for failing to fulfil a duty which it was expressly advised it was not to act upon.

Although the Board acknowledged that the employee included a wide range of complaints in his application, it also noted that many of the complaints fell outside the scope of the union’s duty of fair representation (such as complaints about the hospital’s failure to maintain a safe workplace, which are appropriately dealt with under OHSA legislation). As the allegations did not fall within the ambit of the union’s duty, so the union could not be said to have failed in its duty. Given these conclusions, the Board was satisfied that the union had not breached its duty, and the application was dismissed.

Contact Guelph Labour Lawyer Peter McSherry for Advice About Your Unionized Employment

If you are a member of a union and find yourself in a dispute related to your employment, whether trying to understand your collective agreement, seeking to define the responsibilities of your union or any other union-related matter, you are in need of cogent legal advice to ensure that your rights are asserted and protected throughout any legal proceeding.

Fortunately, the Law Office of Peter McSherry is here to help. From our offices in downtown Guelph, Ontario, the Law Office of Peter McSherry is pleased to provide savvy, knowledgeable legal advice to union employees from all over Southern Ontario. Contact us today, either online or via telephone at (519) 821-5465, and one of our friendly staff will be pleased to schedule a confidential consultation to get you started on the road to resolution of your legal matter.