Sexual Harassment Occupational Health & Safety Unions Human Rights Workers' Compensation Civil Criminal About the Project Contact Us Apply Now

Duty of Fair Representation

It is generally up to the union to decide whether to make a grievance, but unions must fairly represent workers when a dispute arises under the collective agreement.

The representation by the Union must be fair, genuine and not merely apparent, undertaken with integrity and competence, without serious or major negligence, and without hostility towards the employees. ~Canadian Merchant Service Guild v. Gagnon et al. (Supreme Court of Canada)

You may not get the result you had hoped for, but the union will have fulfilled their duty if they acted fairly and honestly when they made their decision. When the matter involves two union members, it may mean both parties receive representation from the union.

While the union must represent an employee at a disciplinary meeting, they do not always have to proceed with a grievance based on the discipline if they feel that the discipline was appropriate.

A duty of fair representation means that unions cannot act in an arbitrary or discriminatory way or in bad faith in considering whether to represent a worker or when representing a worker.

Arbitrary Treatment

Unions do not have to do the most thorough investigation possible. They can decide how to investigate and the steps they will take as long as this is not done arbitrarily. The union may not need to conduct an investigation if an independent third party has already investigated the matter.

Arbitrary treatment happens when there is no rational reason for a decision or course of action.

Arbitrary treatment can occur when a union makes a decision about whether to make a grievance without looking into the situation. The union must do a proper investigation before deciding whether to go ahead with a grievance. At the very least, the union must interview the person making the complaint and any other workers who are involved.

The union must…

  • listen to your account of the events
  • investigate the facts
  • consider only the relevant facts and not consider irrelevant facts
  • keep you informed about what they are doing
  • seek outside help if reasonably required considering the gravity of the consequences for you and the resources of the union

The union must give the worker a fair opportunity to present their case and to provide input on the result of the investigation. The union does not, however, need to do everything the worker requests, answer all questions to the worker’s satisfaction or adhere to timelines set by a worker.

After the investigation the union can consider…

  • the strength of the case
  • the chances for success
  • the costs of arbitration, if required
  • what is at stake for the employee
  • the interests of all the employees covered by the collective agreement

It is not a breach of the duty of fair representation simply because the worker does not agree with the union’s decision.

Examples of acting arbitrarily include when the union…

  • is careless in dealing with the complaint
  • takes only a superficial or cursory view of the complaint
  • does not consider the employee’s needs and interests
  • does not investigate
  • does not consider whether the employee has a case

Not having a process to deal with grievances can also be a failure to fairly represent employees.

Bad Faith

The union cannot act in bad faith. For example, if the union was not honest they could be found to have acted in bad faith. Other examples are if the union intends to harm the person making the complaint or is spiteful or hostile.

Bad faith has been described as conduct that is motivated by ill-will, hostility, dishonesty, malice, personal animosity or even sinister purposes. ~Raymond E. Brown, 1982 60-3 Canadian Bar Review 412

Discrimination

The union cannot discriminate against you based on something like your race, sex or whether they like you. They cannot act in a way that results in discrimination, even if they did not mean to discriminate. The prohibition against discrimination is intended to prevent individual workers or groups of workers from being treated differently when there is no sound reason for doing so.

The duty of fair representation does not apply if you are pursuing a human rights or occupational health and safety complaint. However, if your collective agreement duplicates the rights given under these laws or provides specific procedures for dealing with these types of complaints, the matter can be dealt with through the grievance procedure and the union has a duty of fair representation.

Was it easy to find what you were looking for on this site?

Did the information on this site help you understand workplace sexual harassment?

Did the information on this site help you understand processes for dealing with workplace sexual harassment?

Was there information about workplace sexual harassment that you needed that was not on the site?

This site provides general information about workplace sexual harassment only. It is not a substitute for receiving legal advice about your situation. Apply now to receive 4 hours of free legal advice.

The Shift Project is funded by the Department of Justice and delivered by the Public Legal Education Association of Saskatchewan (PLEA).