Duty of Fair Representation

The Federal Public Sector Labour Relations and Employment Board (the FPSLREB) certifies employee organizations as bargaining agents for given bargaining units. As such, the employee organization has exclusive authority to bargain collectively on behalf of the employees in the bargaining unit. By the same token, an employee cannot grieve the interpretation or application of a collective agreement (or of an arbitral award), nor refer such a grievance to adjudication, without the support of his or her bargaining agent. Thus, in some cases, an employee will not be able to proceed with what he or she considers a legitimate grievance. This is where the issue of the duty of fair representation arises.

What is the duty of fair representation?

Section 187 of the FPSLRA provides that no bargaining agent for a bargaining unit, and none of its officers and representatives, may act in a manner that is arbitrary or discriminatory or that is in bad faith in the representation of any employee in the bargaining unit. However, it is important to note that within the legal parameters of section 187, the bargaining agent has discretion to determine the scope of representation. In Canadian Merchant Service Guild v. Gagnon et al., [1984] 1 S.C.R. 509, the Supreme Court of Canada stated the following concerning the principles that form a bargaining agent’s duty of representation:

1. The exclusive power conferred on a union to act as spokesman for the employees in a bargaining unit entails a corresponding obligation on the union to fairly represent all employees comprised in the unit.
2. When, as is true here and is generally the case, the right to take a grievance to arbitration is reserved to the union, the employee does not have an absolute right to arbitration and the union enjoys considerable discretion.
3. This discretion must be exercised in good faith, objectively and honestly, after a thorough study of the grievance and the case, taking into account the significance of the grievance and of its consequences for the employee on the one hand and the legitimate interests of the union on the other.
4. The union’s decision must not be arbitrary, capricious, discriminatory or wrongful.
5. 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 employee.

For further information about this decision please refer to the following website: http://www.canlii.org/en/ca/scc/doc/1984/1984canlii18/1984canlii18.html.

What do “arbitrary,” “discriminatory” and “bad faith” mean?

Arbitrary conduct generally refers to instances in which a bargaining agent has not sufficiently investigated or handled an employee’s case or grievance or has not adequately considered the employee’s interests. It can also refer to incidences of serious negligence.

Discriminatory conduct refers to the biased and unfair treatment of an employee based on illegal or prohibited grounds, such as age, race, religion, sex or medical condition.

Actions made in bad faith are generally described as those motivated by personal feelings of hostility or ill will toward an employee. The term may also include deceitful or dishonest conduct.

In deciding whether or not a bargaining agent has acted in a manner that is arbitrary, discriminatory or in bad faith, the FPSLREB will assess the bargaining agent's conduct as to how it handled an employee's case. It will look at how the bargaining agent acted and the process it used to make its decisions concerning the employee's case. The FPSLREB will consider whether the bargaining agent put its mind to the merits of the employee's case, considered relevant factors and made an objective and rational judgment about how to resolve the matter. The FPSLREB does not assess the merits of the employee's grievance or second-guess the actual decision made by the bargaining agent as to whether or not it will take a grievance forward.

Points to consider

To date, FPSLREB and its predecessor, the Public Service Labour Relations Board, have allowed only a small number of complaints involving the duty of fair representation. As the burden of proof lies with the complainant, there are a number of factors should be considered before submitting a complaint to the PSLREB:

• Right to representation
  • The bargaining agent cannot be expected to drop everything in order to pursue the interests of a single employee or to guarantee that every decision it makes accords with that employee's wishes; it can only be expected to consider issues affecting the individual employee fairly and in a conscientious manner (Punko v. Customs Excise Union Douanes Accise, 2007 PSLRB 56).
  • Employees do not have an absolute right to be represented by their bargaining agent in the grievance process (Richard v. Public Service Alliance of Canada, 2000 PSSRB 61).
• Selection of grievances – The bargaining agent is not required to proceed with every grievance. It is the business of the bargaining agent to make decisions about which grievances proceed and which do not (Bahniuk v. Public Service Alliance of Canada, 2007 PSLRB 13).
• Timeliness
  • As per subsection 190(2) of the FPSLRA, a complaint must be made to the FPSLREB not later than 90 days after the date on which the complainant knew, or, in the Board's opinion, ought to have known, of the action or circumstances giving rise to the complaint (Panula v. Canada Revenue Agency and Bannon, 2008 PSLRB 4).
• Negligence - Only flagrant negligence not simple negligence makes the bargaining agent liable (Archambault v. Public Service Alliance of Canada, 2003 PSSRB 56).
• Arbitrariness – Acts or omissions on the part of the bargaining agent must exceed the limits of a discretion reasonably exercised. They must demonstrate a failure to engage in a process of rational decision making and/or a failure to arrive at a thoughtful judgment (Jakutavicius v. Public Service Alliance of Canada, 2005 PSLRB 70).

How to file a complaint

To file a complaint with the FPSLREB concerning the duty of fair representation, please fill out Form 16, Complaint Under Section 190 of the Act, available on the FPSLREB’s website.

The complaint must be filed with the FPSLREB. It can be delivered by hand or courier, or be sent by mail, electronic mail, fax transmission or other electronic means. For information regarding when a document is considered to be received, please refer to section 9 of the Federal Public Sector Labour Relations Regulations.

When to file a complaint

A complaint must be made to the FPSLREB not later than 90 days after the date on which the complainant knew or should have known of the action or circumstances giving rise to the complaint.

The FPSLREB's Policy on Openness and Privacy explains why information filed with the FPSLREB is generally available to the public and why it could be reported in a decision posted on the FPSLREB website and distributed to publishers.