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When a Union Does Not Fairly Represent

Unions have a duty to fairly represent employees in disputes with their employer. If they do not, the employee can make a complaint to the Labour Relations Board.

This is an overview of the process. For more detailed information see the Saskatchewan Labour Relations Board’s site.

The Saskatchewan Labour Relations Board is an independent body that makes decisions about complaints that a union has not fulfilled its duty of fair representation. The Board also provides mediation services to help the parties reach an agreement instead of having the Board decide.

Usually hearings are in front of either the chair or the vice-chair of the Board, but can be before a three-person panel in some cases. You can represent yourself or have a lawyer or other person assist you.

You start by filing a written complaint using Form 10-Employee-Union Disputes. The following information must be included…

  • your name, address, and phone and fax
  • name, address and email address of the union
  • summary of what the union did, including dates and the names of people involved
  • steps you have taken to resolve the issue
  • what you want the Board to do if they find in your favour
  • any other relevant facts

The forms for making a complaint and for other things, such as requesting a subpoena to require a witness to attend the hearing are in The Saskatchewan Employment (Labour Relations Board) Regulations.

The Board will send copies of the complaint to anyone involved in the complaint. The Board decides whether to offer to try to settle the complaint through mediation. Either party can decline to go to mediation. Mediation is done through a pre-hearing. The purpose of the pre-hearing is to try to settle the case or prepare for a hearing if it cannot be settled. Even if the parties do not try mediation at the start of the case, they can jointly request mediation at any time during the case.

It is up to the Board to decide whether they will take the case to a formal hearing. Hearings are scheduled several months ahead of time and the parties will be contacted to confirm that they can attend. Once a date is set the Board sends out a Notice of Hearing. The hearing can only be postponed if a party cannot attend and this must be requested at least 5 days before the hearing.

The hearing is your chance to tell the Board what happened. You can call witnesses. If you think a witness may not attend, the Board can issue a subpoena requiring them to attend. You need to ask the Board to issue a subpoena and you must pay the required witness fees.

The hearing starts with the parties making opening statements. After this they each present their evidence through witnesses and documents. The party making the complaint goes first. Once the evidence is presented the parties can make arguments.

You need to prove on a balance of probabilities that the union failed to represent you fairly. This means you must show that it is more likely than not the union failed to fulfill its duty to represent you fairly.

Generally, the Board will give their decision within 6 months of the end of the hearing.

The typical remedy if the Board finds that the union failed to represent you fairly is to order them to use the grievance process in the collective agreement and represent you fairly while doing so. The Board may point out specific ways that the union has failed in their duty and these would need to be corrected as they move forward with your grievance.

The Board can decide to issue an order saying that the union has failed to fulfill their duty to represent workers fairly and detail the ways in which they failed to fulfill their duty. The Board does not always make these orders. They must decide that there this a good reason to do so. For example, if the worker has left the job so the matter can no longer go through the grievance process the Board may decide to issue this order to put others on notice about what the Board considers to be a failure to fairly represent.

In some cases the Board can make a monetary award to compensate you for money you lost because of the union's actions. This is not a typical award and you need to show that you actually lost a specific amount of money because of the union's failure to fairly represent you.

The Board can also order the union to pay some of the costs you incurred in bringing your case forward, such as some of the cost of having a lawyer represent you. There is no rule that you will automatically receive costs if your case is successful. Costs in this situation are to assist in you being placed in as good a position as you would have been if the union had fulfilled their duty.

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

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