Unfair representation by union

Can an employee go around the union to the courts if a grievance doesn't work out?

Tim Mitchell

Question: If an employee believes she was wrongfully dismissed but felt the union didn’t properly represent her, can she take a wrongful dismissal suit to court instead of the labour relations board?

Answer: A unionized employee cannot generally bring an action in court for wrongful dismissal regardless of any alleged inadequacy in her union’s representation.

An employee represented by a union is bound by the collective agreement between the employer and the union. Collective agreements routinely provide that a dismissal must be for just cause and any complaint is to be pursued under the grievance arbitration provisions of the collective agreement. Under most collective agreements, it is the union and not the individual employee who is responsible for pursuing grievances through to arbitration.

Since the 1995 decision of the Supreme Court of Canada in Weber v. Ontario Hydro, it has been clear that all arbitrable disputes arising out of the collective agreement fall within the exclusive jurisdiction of an arbitrator. That exclusive jurisdiction is not altered by an employee’s dissatisfaction with the union’s conduct of the grievance.

The Supreme Court of Canada also determined in Société d'énergie de la Baie James c. Noël that inadequate representation does not permit an employee to pursue a claim for wrongful dismissal in a different forum, nor does it give her standing to contest an unfavourable arbitration award in judicial proceedings should the union refuse to do so.

If the employee believes the union has not acted properly to redress an unjust dismissal, her remedy lies in a complaint against the union for breach of its duty of fair representation.

The courts have long recognized a common law duty of fair representation owed by a bargaining agent to the employees in the bargaining unit, including the Supreme Court of Canada in the 1984 case of C.M.S.G. v. Gagnon. This duty arises from the union’s exclusive power to act as a spokesperson for all employees in a bargaining unit.

Typically, the labour relations statute under which the union is certified will expressly impose a duty of fair representation for members of the union’s bargaining unit, whose job it is to administer that statute. For example, the Canada Labour Code stipulates: “A trade union or representative of a trade union that is the bargaining agent for 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 with respect to their rights under the collective agreement that is applicable to them.” Most provincial labour relations laws have a similar provision.

In Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057, the Supreme Court found, where the Canada Labour Code applied, an employee could not base a claim on the common law duty but must pursue his claim under the statute.

The employee was displaced from his job following a grievance by another employee claiming entitlement to the position in a competition. The employee wished to grieve his displacement. The union saw no merit in the grievance and refused to pursue it. The displaced employee sued the union in court, alleging it had breached its duty under the Canada Labour Code to “represent, fairly and without discrimination, all employees in the bargaining unit.”

The court found that, even though the code had not expressly ousted the common law duty of fair representation, it had done so by necessary implication. This statutory obligation was enforceable only by way of an application to the labour relations board.

As a result, if the governing legislation imposes a statutory duty of fair representation enforceable by a labour relations board and the essential character of employee’s complaint falls within the scope of that statutory duty, a civil action will not be entertained by the courts. Even where legislation does not expressly confer exclusive jurisdiction to enforce the statutory duty, it will generally be inferred the labour relations board has jurisdiction over an alleged breach of the duty.

The situation may be different, however, if the statute governing the collective bargaining relationship does not contain a statutory duty of fair representation or if the duty provided is one of limited application.

In Re Savoie, the union had initially pursued the employee’s grievances but informed the employee it would withdraw the grievances if she didn’t accept the employer’s settlement offer. The employee regarded both the settlement offer and her union’s representation as inadequate. She filed a complaint against the union under the Alberta Public Service Employee Relations Act (PSERA). The Alberta Labour Relations Board found the employee’s complaint related to the quality of the union’s representation — the union had acted in a way that was arbitrary, discriminatory, in bad faith or seriously negligent. However, such allegations did not fall within the board’s jurisdiction because it did not impose any duty of fair representation. Accordingly, the proper forum to have those concerns addressed was in court.

In the 2002 case of Butt v. U.S.W.A., the Newfoundland and Labrador Court of Appeal recognized that the Newfoundland Labour Relations Act placed only a limited obligation on the union to act in good faith in providing ready access to the grievance process. The court noted there were aspects of a union’s representation that were not encompassed by the statutory obligation and remained enforceable by the courts.

In Bugden v. St. John's (City), the issue came squarely before the court in the form of a union’s application to strike out the civil claim of an employee alleging a breach of the union’s common law duty of fair representation. The employee was a firefighter who had been assaulted at work by a fellow firefighter. The employee had filed a grievance against the employer for failure to provide a safe workplace. The grievance was resolved between the employer and the union in a manner that, according to the employee, further aggravated his mental distress and amounted to a constructive dismissal. The employee sued the employer and the union. The employee alleged breach of a common law duty of fair representation and gross and serious negligence in the union’s pursuit of the grievance.

The union tried to have the proceedings struck out, relying on the Labour Relations Act as precluding proceedings to enforce a complaint in relation to the sufficiency of the union’s representation. However, the court dismissed the union’s application, ruling the act had a narrow focus that did not clearly encompass the employee’s claim and did not foreclose a civil action based on the union’s common law duty. The employee was not alleging denial of access to the grievance procedure but rather negligence, arbitrary conduct and bad faith in the processing of his grievance. It was not appropriate to deny the employee the right to attempt to prove his case where the union had not discharged its burden of showing the court’s jurisdiction had been ousted by the statutory duty.

An employee who believes her union has not adequately represented her in a grievance may have a remedy for breach of a common law or statutory duty of fair representation. Whether that remedy may be pursued in the courts or before a labour relations board will depend upon the governing legislation and the scope of the duty of fair representation provided in the statute. Alleged inadequate representation by the union in the arbitration process does not give a unionized employee the right to pursue the subject matter of the grievance in judicial proceedings against the employer.

For more information see:

Weber v. Ontario Hydro, 1995 CarswellOnt 240 (S.C.C.).
Société d'énergie de la Baie James c. Noël, 2001 CarswellQue 1270 (S.C.C.).
C.M.S.G. v. Gagnon, 1984 CarswellQue 99 (S.C.C.).
Gendron v. Supply & Services Union of the P.S.A.C., Local 50057, 1990 CarswellMan 379 (S.C.C.).
Re Savoie, [2010] A.L.R.B.D. No. 40 (Alta. Lab. Rel. Bd.).
Butt v. U.S.W.A., 2002 CarswellNfld 331 (N.L.C.A.).
Budgen v. St. John's (City), 2008 CarswellNfld 304 (N.L. T.D.).

Tim Mitchell is a partner with Armstrong Management Lawyers in Calgary who practices employment and labour law. He can be reached at T.Mitchell@amllawyers.com.

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