Duty of Fair Representation

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 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

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.

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.

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.